Mass. R. Evid. 1119
Mass. Guid. Evid. 1119
In the twenty-first century, parties have increasingly relied on evidence created and stored on cell phones and other personal electronic devices as proof in evidentiary hearings and trials, often requesting judges view and personally inspect digital evidence on their personal devices. More recently, Massachusetts courts have begun conducting regular business remotely by telephone and videoconference. The purpose of this section is to facilitate the admission of digital evidence in courtroom and virtual proceedings.
Whether a party is represented by counsel or is self-represented, the fair and equal administration of the law requires that judges consider all admissible evidence that a party presents and make reasonable efforts to preserve that evidence for the case record as well as for any reconsideration or appellate review. The consideration and preservation of digital evidence may present special challenges, and thus judges and other court personnel should make reasonable accommodations when appropriate.
The admissibility of digital evidence is governed by the same principles applicable to other forms of evidence, which are covered in detail elsewhere in this Guide. These notes attempt to summarize common issues and identify other pertinent sections of the Guide. These notes do not address the substantive law of privacy, statutory or constitutional, which may be implicated when a party seeks to admit evidence, such as private conversations, that the opposing party alleges may have been unlawfully recorded. See G. L. c. 272, § 99 (wiretap statute).
Subsection (b).
Authentication. Digital evidence must be authenticated to be admissible. Authentication requires the judge to find that the party offering digital evidence has produced sufficient evidence so that a reasonable person could find that the digital evidence is more likely than not what the offering party claims it is. See Commonwealth v. Purdy, 459 Mass. 442, 447 (2011) (where "the relevance and admissibility of the communications depended on their being authored by the defendant, the judge was required to determine whether the evidence was sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the e-mails"); Commonwealth v. Meola, 95 Mass. App. Ct. 303, 307-308 (2019). There are many different ways to establish that digital evidence is authentic, including
- testimony of a witness with personal knowledge about what appears in a video or photograph, even if the witness did not take the video or photograph;
- testimony of a witness who is familiar with the voice or handwriting contained in digital evidence;
- testimony of a witness providing "confirming circumstances" that the digital evidence was created by a particular person; or
- testimony of an expert or a person familiar with the system that created the digital evidence.
This Guide includes a section dealing with authentication in detail (Section 901, Authenticating or Identifying Evidence), discussing the methods described above and other examples of evidence that may be offered to satisfy the authentication requirement.
The judge does not decide whether the proponent has actually proved that the digital evidence is authentic, but decides only if there is enough evidence that would, if believed, permit the trier of fact to conclude that the digital evidence is authentic. See Meola, 95 Mass. App. Ct. at 308-309. The mere possibility that digital evidence may have been altered affects the weight of the evidence and is not, without more, a reason to exclude it. See Purdy, 459 Mass. at 450. When a digital communication is admitted in a jury trial in a criminal case, the judge should instruct the jury that they may consider the communication only if they are persuaded, by a preponderance of the evidence, that the communication is what the proponent claims it to be. See Purdy, 459 Mass. at 447; Commonwealth v. Middleton, 100 Mass. App. Ct. 756, 760-761 (2022). When digital evidence is admitted, the judge may permit the opposing party to present other parts of the same communication on the same subject to prevent presentation of a fragmented or misleading version of events.
Cross-Reference: Section 104(b), Preliminary Questions: Relevance That Depends on a Fact; Section 106, Doctrine of Completeness; Section 901, Authenticating or Identifying Evidence.
Hearsay. Hearsay is an out-of-court statement made by a person and offered to prove the truth of what the statement asserts. See Section 801(c), Definitions: Hearsay. Because of the preference for live testimony of a witness, out-of-court statements generally are not admissible in court, but this rule has many exceptions, including
- a statement made by an opposing party;
- a statement not made by a person but generated by a computer or other automatic process, such as cell phone logs and the time, date, or location information for digital photographs;
- a statement covered by one of the exceptions to the rule against hearsay, including, for example, "excited utterances," business records, and certain statements of witnesses who are legally unavailable;
- a statement offered for a reason other than to prove the truth of what the statement asserts, such as a statement offered to show the speaker's state of mind or the effect on the listener; and
- a witness's prior statement contradicting the witness's testimony when used to attack the witness's credibility.
If a single item of digital evidence contains multiple hearsay statements, each statement must be independently admissible.
Cross-Reference: Section 613, Prior Statements of Witnesses, Limited Admissibility; Note "Computer Records" to Section 801(a), Definitions: Statement; Note "Evidence Admitted for Nonhearsay Purpose" to Section 801(c), Definitions: Hearsay; Section 801(d), Definitions: Statements That Are Not Hearsay; Section 803, Hearsay Exceptions; Availability of Declarant Immaterial; Section 804, Hearsay Exceptions; Declarant Unavailable; Section 805, Hearsay Within Hearsay.
Subsection (c). Generally, the offering party should provide copies of digital evidence for the court and any other party to inspect and retain.
Presentation of Digital Evidence. Digital evidence should be offered as follows.
- Printed Evidence. In traditional courtroom proceedings, all types of digital evidence that can be printed on paper from a personal electronic device (e.g., e-mails, call logs, text messages, social media, photographs, and web pages) should be. When printed on paper, "screenshots" should include relevant information from the image (e.g., sender's name, time, date, and the like). Images must be legible for the judge and parties, and any appellate court, to view. When color is relevant, color copies should be provided.
- Audio and Video Evidence. Audio recordings and voicemails should be duplicated on a USB flash drive, compact disc (CD), or other storage medium. An audio recording or voicemail may also be offered in the form of a written transcript. Video recordings should be duplicated on a digital video disc (DVD) or other storage medium.
- Inspection of Digital Evidence on a Personal Electronic Device. If the offering party is unable to produce digital evidence in a format that is suitable to mark as an exhibit or for identification, the judge, with the assistance of court personnel, should inspect and consider digital evidence presented on a personal electronic device if (1) the device's owner gives consent to the inspection, and, except in an ex parte proceeding, (2) the judge ensures that the party against whom the digital evidence is offered has a reasonable opportunity to review and object to the evidence. A judge shall not consider digital evidence that an offering party refuses to permit the opposing party to review. All persons who handle personal electronic devices must take care not to alter or delete potentially relevant evidence, including metadata. The opposing party, and the opposing party's attorney, are not permitted to handle the device without its owner's consent. However, the opposing party has a right to view digital evidence before the judge makes a ruling on its admissibility.
- Other Practices. This section is not intended to limit a court's ability to accept digital evidence through the use of electronic filing. See Mass. R. E. F. 2 (definition of "electronically filed"). Nor is this section intended to displace any other practice consistent with the law, such as instructing a party to send digital evidence to a specific e-mail address or mailbox, or to produce digital evidence in response to a discovery order or request made in advance of a hearing.
- Stipulations. Parties may stipulate to the contents of digital evidence. A stipulation is a voluntary agreement between the parties about some relevant fact, claim, or defense. The judge should determine whether such a stipulation must be in writing and how the stipulation should be presented to the fact finder. See Section 611(g), Mode and Order of Examining Witnesses and Presenting Evidence: Stipulations.
Preservation of Digital Evidence. A "hodgepodge" of statutes and rules govern the retention and preservation of evidence. See District Attorney for the Northern Dist. v. Superior Court Dep't, 482 Mass. 336, 339-342 (2019). Methods for preserving digital evidence include the following.
- Printed Evidence, E-mailed Evidence, and Evidence on Storage Media. The court should mark as an exhibit, or for identification, any digital evidence presented on paper, by e-mail, or on a storage medium (such as a USB flash Drive, CD, or DVD) and retain that digital evidence according to the court's usual practice.
- Use of the Courtroom Recording System. Voicemails or audio recordings, especially those that are not available on a storage medium, should be played so that the courtroom system may record them for any future reference and possible transcription. The audio portion of a video recording, especially if not provided on a storage medium, should be played so it is recorded by the courtroom system. If possible, the person monitoring the recording system should immediately listen to the recording to ensure its quality and accuracy.
- Digital Evidence Inspected on a Personal Electronic Device. After inspecting digital evidence on a personal electronic device and inviting the parties to be heard, the judge should describe the digital evidence in as much detail as necessary to permit effective review of any ruling on its admissibility. Unless the personal electronic device itself is offered into evidence, the judge shall not keep a party's personal electronic device as evidence in the case.
- Additional Considerations. If the judge excludes digital evidence that remains on a personal electronic device and physically preserving the evidence is impractical, the judge should generally describe the evidence and why it is being excluded. Upon request of the opposing party or upon the court's own initiative, where appropriate, the judge may enter an order requiring the party offering digital evidence to preserve without alteration the original digital evidence, including its metadata, and the device on which it is located.
Subsection (d). Rule 2.6 of the Massachusetts Code of Judicial Conduct states that "[a] judge may make reasonable efforts, consistent with the law, to facilitate the ability of all litigants, including self-represented litigants, to be fully heard." Judges are directed to "provide a self-represented party with a meaningful opportunity to present her case by guiding the proceedings in a neutral but engaged way." CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 283 (2017); City of Boston v. United States Gypsum Co., 37 Mass. App. Ct. 253, 256 (1994) ("Appropriate participation by the trial judge is crucial to ensuring a fair trial for both parties."). See also Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 840 (2019) (identifying ways that nonlawyers may assist self-represented litigants without engaging in unauthorized practice of law).
"By way of illustration, a judge may: (1) construe pleadings liberally; (2) provide brief information about the proceeding and evidentiary and foundational requirements; (3) ask neutral questions to elicit or clarify information; (4) modify the manner or order of taking evidence or hearing argument; (5) attempt to make legal concepts understandable; (6) explain the basis for a ruling; and (7) make referrals as appropriate to any resources available to assist the litigants."
S.J.C. Rule 3:09, Canon 2, Rule 2.6, Comment 1A.
Helpful guidance for interacting with self-represented litigants is compiled in the Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants, at https://perma.cc/MT78-G6WU.