Cross-Examination in Massachusetts Criminal Trials

During cross-examination, counsel tests the reliability, accuracy, bias, and completeness of the testimony the Commonwealth offers. Counsel compares the witness’s trial testimony with prior statements, recordings, documents, and any reason the witness may have to favor one account.

Counsel prepares effective cross-examination before trial by organizing the witness’s prior statements, reports, recordings, and other records. Those materials allow counsel to frame a precise question and confront an inconsistent answer with the underlying evidence. A broad question asked without that preparation may invite an explanation rather than establish a useful fact.

This page sets out the rules that govern the scope of cross-examination, the tools available for impeachment, and how those tools apply to the witnesses who appear in Massachusetts criminal cases. Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and tries cases in the District Courts, the Boston Municipal Court, and the Superior Court. Serpa Law Office can be reached at 617.936.0201.

For Attorney Serpa’s own account of his approach, see two rules for cross-examination. His account of the stage that comes before it appears in how I pick a jury in a Massachusetts criminal trial.

The Right and Its Scope

The Sixth Amendment and Article 12 of the Massachusetts Declaration of Rights guarantee the right to confront the witnesses against the accused, and confrontation means the opportunity for cross-examination.

Massachusetts Guide to Evidence § 611(b)(1) permits examination on any matter relevant to any issue in the case, including credibility. Section 611(b)(2) makes reasonable cross-examination to show bias or prejudice a matter of right rather than a matter of discretion. Section 611(c) permits leading questions on cross.

The right is not unlimited. Under Delaware v. Van Arsdall, 475 U.S. 673 (1986), a trial judge retains latitude to impose reasonable limits based on concerns including harassment, confusion of the issues, and questioning that is repetitive or only marginally relevant.

Where a judge excludes a line of questioning, counsel must preserve the issue. That means stating the purpose of the questioning on the record, identifying the evidentiary or constitutional basis, and making an offer of proof describing what the answers would have shown. Without that record, an appellate court applies the standard governing an unpreserved claim rather than the standard for a properly preserved objection.

Prior Inconsistent Statements

A witness may be impeached with a prior statement inconsistent with the testimony given.

Under Mass. G. Evid. § 613(a)(1), a witness may be examined about a prior inconsistent statement without first being shown it. Under § 613(a)(2), extrinsic evidence of the statement is admissible subject to the judge’s discretion, ordinarily after the witness has had an opportunity to explain or deny it.

The jury’s permitted use of the statement depends on the foundation. Ordinarily, a prior inconsistent statement impeaches credibility and is not evidence of the facts asserted. Under Mass. G. Evid. § 801(d)(1)(A) and Commonwealth v. Daye, 393 Mass. 55, 75 (1984), a prior inconsistent statement may be admitted for its truth where it was made under oath before a grand jury, the witness can be effectively cross-examined as to its accuracy, the statement was not coerced and was more than a mere confirmation or denial of an allegation by the interrogator, and other evidence tending to prove the issue is presented. Daye also requires a showing that the declarant was a percipient witness to the events. Counsel should identify the permissible use before the examination because whether counsel may argue the statement as fact in closing turns on that ruling.

Impeachment by Omission

A witness who testifies to a fact may be impeached with an earlier statement that omitted it. “An omission from the earlier statement is inconsistent with a later statement of fact when it would have been natural to include the fact in the initial statement.” Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 72 (1995).

Counsel must establish that the witness made the earlier statement, had an opportunity and reason to describe the event fully, and omitted the detail now offered at trial. Without that foundation, the earlier silence may not qualify as an inconsistency.

Bias, Interest, and Motive

Section 611(b)(2) makes reasonable cross-examination concerning a witness’s bias or prejudice a matter of right.

Under Davis v. Alaska, 415 U.S. 308 (1974), the right to cross-examine on bias can prevail over a state policy of confidentiality. Commonwealth v. Joyce, 382 Mass. 222 (1981), applies the same principle to the Massachusetts rape-shield statute: where evidence of a complainant’s sexual conduct is relevant to show bias or a motive to lie, “the general evidentiary rule of exclusion must give way to the constitutionally based right of effective cross-examination.” Joyce did not disturb the rule that such evidence is inadmissible on credibility generally or on consent.

Possible sources of bias include a cooperation or plea agreement, pending charges, probation status, a civil claim arising from the same events, a custody or divorce dispute, and a requested immigration benefit. U nonimmigrant status under 8 U.S.C. § 1101(a)(15)(U) and VAWA self-petitions under 8 U.S.C. § 1154(a)(1) are distinct forms of relief with different requirements.

If the record connects a witness’s requested immigration benefit to cooperation with law enforcement or the prosecution, counsel may seek to question the witness about the application, the expected benefit, and any required law-enforcement certification, subject to the judge’s reasonable limits on cross-examination.

Prior Convictions

A witness’s prior criminal convictions may be used to impeach credibility, within the limits set by M.G.L. c. 233, § 21 and Mass. G. Evid. § 609. A misdemeanor conviction may not be shown after five years from the date sentence was imposed. A felony conviction on which no sentence, a suspended sentence, a fine, or a sentence to a reformatory prison, jail, or house of correction was imposed may not be shown after ten years from the conviction or the sentence. A felony conviction on which a state prison sentence was imposed may not be shown after ten years from the expiration of the minimum term imposed. Each of those limits is lifted where the witness has been convicted of another crime within the corresponding period before testifying, and any period during which the defendant was a fugitive from justice is excluded from the calculation.

Admission is not automatic where the witness is the defendant. In Commonwealth v. Maguire, 392 Mass. 466 (1984), the Supreme Judicial Court overruled earlier law and held that the admission of a prior conviction is subject to reviewable discretion, with the question on appeal being whether the danger of unfair prejudice outweighed the probative value for impeachment. That discretion is directed at the prior convictions of a defendant who testifies, which is one factor in the decision whether the defendant takes the stand.

Documents, Messages, and Recordings

A witness may be confronted with a document, a message, or a recording, and the proponent must be able to authenticate it.

Mass. G. Evid. § 901(a) requires evidence sufficient to support a finding that the item is what its proponent claims. For electronic communications, the account name is not enough. In Commonwealth v. Williams, 456 Mass. 857 (2010), messages sent from the defendant’s social media page were held insufficiently authenticated, because the foundation established only that they came from someone with access to the page and did not identify who sent them. Commonwealth v. Purdy, 459 Mass. 442 (2011), states the test: confirming circumstances sufficient for a reasonable jury to find authorship by a preponderance of the evidence. Section 901(b)(5) permits voice identification by anyone who has heard the voice under circumstances connecting it to the speaker.

A writing may also be used to refresh a witness’s recollection under § 612(a) without being admitted, and where recollection cannot be refreshed, § 803(5) governs a recorded recollection. Counsel should decide before the witness testifies whether the document will refresh recollection, support a recorded recollection, or prove a prior inconsistent statement.

The related rules on obtaining and admitting this material are on digital evidence in Massachusetts criminal cases, phone, computer, and digital device searches, and the text message and phone evidence FAQs.

Police Witnesses

Counsel can compare a police witness’s trial testimony with the officer’s report, dispatch log, booking record, and body-worn camera footage. Those records may establish what the officer reported or recorded before testifying.

Records bearing on the officer’s credibility may be available. Commonwealth v. Wanis, 426 Mass. 639 (1998), sets two different standards. On a motion under Mass. R. Crim. P. 17, a judge should normally issue a summons to a police department’s internal affairs division for the statements of percipient witnesses, and “[n]o special showing of relevance or need is required” for those statements. For other internal affairs information, the defendant must seek a summons and, where production is opposed, show a judge, normally by affidavit, a specific and good faith reason for believing that the information is relevant to a material issue in the criminal case. Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), obligate the Commonwealth to disclose exculpatory material and material bearing on the credibility of its witnesses.

When a defendant testifies, Doyle v. Ohio, 426 U.S. 610 (1976), prohibits the prosecution from using the defendant’s postarrest, post-Miranda silence to impeach the account given at trial. See your right to remain silent.

Cooperating Witnesses and Informants

A witness testifying under a cooperation or plea agreement may expect a charging or sentencing benefit. Counsel should examine the terms of the agreement and the witness’s understanding of the expected benefit.

In Commonwealth v. Ciampa, 406 Mass. 257 (1989), the Supreme Judicial Court held that testimony under a plea agreement founded on a promise of truthful cooperation, and the agreement itself, are admissible. Admitting the agreement is not by itself improper vouching if the judge and counsel handle it appropriately. The Court required a cautionary instruction because the agreement creates a risk that the jury will assume the Commonwealth can verify whether the witness is telling the truth. The Court reversed the convictions because other errors in the handling of the agreement were not cured by the instructions.

Counsel should obtain the agreement, related correspondence, the charges avoided, the sentencing exposure, and any prior occasions on which the witness cooperated.

Identification Witnesses

Cross-examination of an identifying witness addresses the conditions of the observation and the procedures that followed it: lighting, distance, duration, obstruction, stress, the presence of a weapon, the time between the event and the identification, and the way the identification procedure was conducted.

Commonwealth v. Gomes, 470 Mass. 352 (2015), concluded that certain scientific principles about eyewitness identification are so generally accepted that juries should be instructed on them, and appended a provisional instruction that was later replaced by the model instruction. Counsel can use those principles to organize questions about perception, memory, and the identification procedure. Gomes also states that the instruction does not preclude expert testimony on eyewitness identification and that a judge may permit an expert to elaborate on the accepted principles or challenge them.

Complaining Witnesses

Cross-examination of a complaining witness is governed by the same rules as any other witness, with two additional constraints.

The rape shield statute, M.G.L. c. 233, § 21B, and Mass. G. Evid. § 412 exclude evidence of the reputation of a complainant’s sexual conduct entirely, and exclude evidence of specific instances of that conduct with two exceptions: sexual conduct with the defendant, and recent conduct alleged to be the cause of a physical feature, characteristic, or condition of the complainant. Either exception requires a written motion, an offer of proof, and an in camera hearing held outside the presence of the jury, and the judge admits the evidence only on a finding that its weight and relevancy outweigh its prejudicial effect to the complainant.

Two decisions explain when the constitutional right to cross-examine permits questioning despite the statutory restriction. Commonwealth v. Bohannon, 376 Mass. 90 (1978), S.C., 385 Mass. 733 (1982), permits cross-examination about the complainant’s prior false allegations of the same crime. Because no sexual conduct occurred, questioning about those allegations does not elicit testimony about prior sexual activity, and the statute is therefore not implicated. The exception is narrow. It requires a factual basis from independent third-party records for concluding that the prior allegations were made and were untrue, allegations of the type of crime charged, and a subject that significantly touches a central issue in the case. Commonwealth v. LaVelle, 414 Mass. 146, 152 n.4 (1993).

Commonwealth v. Jacques, 494 Mass. 739 (2024), holds that prior sexual abuse of the complainant by a third party is “sexual conduct” within the statute, so the statute restricts it. The Court also held that the trial judge violated the defendant’s constitutional rights to confront the witness and present a defense by foreclosing all cross-examination on the subject. The Court reversed and remanded for a new trial. Counsel must therefore address the statutory restriction and the constitutional basis for the proposed questioning separately.

Where the complainant does not testify, the Commonwealth may seek to prove the case through 911 calls and statements made at the scene, which raises separate evidentiary and constitutional questions. See excited utterances, spontaneous utterances, and the recanting complainant, and for the substantive charges, domestic violence defense and intimidation of a witness.

A married complainant may have a statutory reason for not testifying. M.G.L. c. 233, § 20 provides that neither spouse may be compelled to testify in a criminal proceeding against the other, apart from the child abuse exception, and the choice belongs to the witness-spouse rather than the prosecutor. See Massachusetts spousal privilege and marital communications, which explains how that choice interacts with the hearsay routes described here.

Expert Witnesses

An expert must disclose the facts and data the opinion rests on, Mass. G. Evid. § 705, and the opinion must satisfy the reliability requirement of § 702.

An expert may base an opinion on facts or data that are not in evidence, provided those facts or data are independently admissible and are a permissible basis for an expert in that field. Department of Youth Services v. A Juvenile, 398 Mass. 516, 531 to 532 (1986). Where counsel believes the opinion rests on something inadmissible, the remedy is a request for a voir dire on the basis of the opinion. Id. at 532.

The right to test that basis is protected. In adopting the rule that allows an expert to state an opinion without first disclosing the underlying facts, the Supreme Judicial Court cautioned that the permissive language “does not permit a judge to exclude questions designed to elicit the underpinnings of the expert’s opinion.” Id. at 532.

A ruling admitting expert testimony does not settle its reliability. The judge decides first whether the theory or process underlying the opinion is valid, but that ruling “is not final on the reliability of the opinion evidence, and the opponent of that evidence may challenge its validity before the trier of fact.” Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994).

Cross-examination of an expert addresses the methodology, whether it was applied correctly here, the assumptions the opinion depends on, the error rate, and what the expert did not test.

The Confrontation Clause and Absent Analysts

Under Crawford v. Washington, 541 U.S. 36 (2004), a testimonial out-of-court statement is admissible only where the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Commonwealth v. Gonsalves, 445 Mass. 1 (2005), holds that Article 12 is at least as protective as the Sixth Amendment.

In forensic cases, Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), holds that a certificate of analysis is testimonial and that the analyst must appear.

Smith v. Arizona, 602 U.S. 779 (2024), applies the Confrontation Clause when a testifying expert conveys an absent analyst’s statements and the expert’s opinion depends on those statements being true. The Court held that “[w]hen an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth.” A state evidentiary label calling the material basis evidence rather than substantive evidence does not change the constitutional analysis. The Court also reaffirmed that a defendant’s ability to subpoena the absent analyst is no substitute for confrontation, because the Clause places the burden on the prosecution to present its witnesses.

When the Commonwealth offers a substitute analyst, counsel should establish on voir dire or cross-examination what the testifying witness personally did, what the witness is repeating from an absent analyst, and whether the opinion depends on the truth of those statements.

Attorney Serpa has written separately on cross-examining an absent accuser, where the complainant does not testify and Mass. G. Evid. § 806 governs the attack on the credibility of the hearsay declarant.

Cross-Examination in 209A and 258E Hearings

A protective order hearing is a civil proceeding, and the rules of evidence are applied with more flexibility than at a criminal trial. Reliable hearsay may be considered. Mass. G. Evid. § 1106.

The respondent’s rights come from due process rather than from Article 12, because a c. 209A proceeding is civil. Frizado v. Frizado, 420 Mass. 592, 596 to 598 (1995), holds that the respondent has the right to be heard, which includes the right to testify and to present evidence, and that “[a] defendant has a general right to cross-examine witnesses against him,” which a judge may limit for good cause. Whether those rights were honored turns on the fairness of the particular hearing. F.A.P. v. J.E.S., 87 Mass. App. Ct. 595 (2015), applies the same standard and the Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5:03 (2011), which direct that the common law rules of evidence be applied with flexibility subject to fundamental fairness.

Testimony at the hearing creates a recorded prior statement that either side may seek to use in a later criminal case, subject to the rules governing impeachment, hearsay, and substantive admissibility. If the respondent faces a related criminal charge, the decision whether to testify also implicates the Fifth Amendment in a civil proceeding where the judge may draw an adverse inference from silence. See 209A abuse prevention orders, 258E harassment prevention orders, and the Fifth Amendment in Massachusetts civil cases.

Preparing the Examination

Attorney Serpa prepares a cross-examination by organizing the evidence, identifying the permissible purpose of each question, and preserving any excluded line of inquiry.

Collect the prior statements. Counsel gathers police reports, supplemental reports, 911 recordings, body-worn camera footage, grand jury testimony, hospital and medical records, protective-order affidavits and testimony, messages, and social media.

Compare the accounts. Counsel identifies what changed, what appeared for the first time, and what the witness omitted when inclusion would have been natural.

Build a chronology. Counsel uses dispatch logs, call records, and timestamps to establish the sequence and test the witness’s account.

Test perception and memory. Counsel establishes what the witness could see and hear from that location and what the witness did in the hours afterward.

Identify a possible motive or bias. Counsel reviews agreements, pending matters, related civil or family proceedings, and relevant immigration applications.

Assemble the impeachment material in usable form. Counsel marks and organizes each exhibit so counsel can confront a denial with the underlying document rather than argue with the witness.

Preserve the record. Counsel states the purpose, cites the rule, and makes an offer of proof whenever the judge excludes a line of questioning.

Cross-examination is one part of a trial. See also jury selection, opening statements and closing arguments, and trial motion practice.

Serpa Law Office can be reached at 617.936.0201 for a free and confidential consultation. The Boston office is at 20 Park Plaza #400A. The Braintree Office is at 25 Braintree Hill Office Park Suite 200A.

Related Page

• Rights and Legal Concepts in a Massachusetts Criminal Case