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. Counsel uses those materials to frame a precise question and to confront an inconsistent answer with the underlying evidence. In response to a broad question asked without that preparation, the witness may give an explanation instead of confirming 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 jury selection appears in how I pick a jury in a Massachusetts criminal trial.

The Right to Cross-Examine 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. Confrontation means the opportunity for cross-examination.

Massachusetts Guide to Evidence § 611(b)(1) permits cross-examination on any subject relevant to any issue in the case, including credibility. Section 611(b)(2) makes reasonable cross-examination to show bias or prejudice a right. The judge has no discretion to refuse that cross-examination. Section 611(c) permits leading questions on cross.

The right to cross-examine has limits. 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.

Counsel must preserve the issue for appeal when a judge excludes a line of questioning. To preserve the issue, counsel states the purpose of the questioning on the record, identifies the evidentiary or constitutional basis, and makes 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 if the statement meets several conditions.

The statement must have been made under oath before a grand jury. The witness must be subject to effective cross-examination as to the accuracy of the statement. The statement must not have been coerced and must be more than a mere confirmation or denial of an allegation by the interrogator.

Other evidence tending to prove the issue must also be presented. Daye also requires a showing that the declarant was a percipient witness to the events. Counsel should identify the permissible use of the statement before the examination. The question whether counsel may argue the statement as fact in closing depends on the judge’s decision on the permissible use.

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 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 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. Joyce states that, 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 change the rule that evidence of a complainant’s sexual conduct 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.

Counsel may seek to question a witness about an immigration application, the expected benefit, and any required law-enforcement certification if the record shows a connection between the requested benefit and the witness’s cooperation with law enforcement or the prosecution. The judge may impose reasonable limits on that 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. None of those limits applies where the witness has been convicted of another crime within the corresponding period before testifying. Any period during which the defendant was a fugitive from justice is excluded from the calculation.

The judge does not automatically admit a prior conviction 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. The question on appeal is whether the danger of unfair prejudice outweighed the probative value for impeachment. That discretion applies to the prior convictions of a defendant who testifies. The possible admission of those convictions is one factor in the defendant’s decision whether to take the stand.

Documents, Messages, and Recordings

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

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 to authenticate a message. In Commonwealth v. Williams, 456 Mass. 857 (2010), messages sent from the social media page of the defendant’s brother were held insufficiently authenticated. The foundation established only that the messages 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, which requires 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. Section 803(5) governs a recorded recollection where the witness’s recollection cannot be refreshed. 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 relating to the officer’s credibility may be available to the defense. Commonwealth v. Wanis, 426 Mass. 639 (1998), sets two different standards for obtaining internal affairs material. 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. Wanis states that “[n]o special showing of relevance or need is required” for those statements.

For other internal affairs information, the defendant must seek a summons. A defendant who faces opposition to production must also 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 relating to the credibility of its witnesses.

Doyle v. Ohio, 426 U.S. 610 (1976), prohibits the prosecution from using a testifying defendant’s postarrest, post-Miranda silence to impeach the account given at trial. See the 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 and related correspondence and should identify the charges avoided, the sentencing exposure, and any prior occasions on which the witness cooperated.

Identification Witnesses

On cross-examination of an identifying witness, counsel addresses the conditions of the observation and the identification procedures used after the observation. Counsel’s questions concern lighting, distance, duration, obstruction, stress, the presence of a weapon, the time between the event and the identification, and how 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 cross-examination of 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. The statute and § 412 also exclude evidence of specific instances of that conduct, with two exceptions.

The exceptions are 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. 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. Questioning about prior false allegations does not elicit testimony about prior sexual activity, because no sexual conduct occurred. The rape shield statute therefore does not apply to that questioning. The exception for prior false allegations is narrow.

The exception 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 evidence of that abuse. 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.

The Commonwealth may seek to prove the case through 911 calls and statements made at the scene when the complainant does not testify. Those calls and statements raise 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. The witness-spouse, rather than the prosecutor, decides whether to testify. See Massachusetts spousal privilege and marital communications, which explains how a spouse’s decision whether to testify relates to the Commonwealth’s use of the hearsay statements described on this page.

Expert Witnesses

An expert may be required on cross-examination to disclose the facts and data on which the opinion is based, Mass. G. Evid. § 705. The opinion must also 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). The remedy for counsel who believes that the opinion is based on something inadmissible is a request for a voir dire on the basis of the opinion. Id. at 532.

The right to test the basis of an expert’s opinion on cross-examination is protected. The Supreme Judicial Court adopted the rule that allows an expert to state an opinion without first disclosing the underlying facts. In adopting that rule, the 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.

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).

On cross-examination of an expert, counsel addresses the methodology, whether the expert applied it correctly in the case, 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 of a declarant who does not testify at trial 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.”

The constitutional analysis does not depend on whether state evidence law labels the material basis evidence rather than substantive evidence. 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.

Counsel should use voir dire or cross-examination of a substitute analyst offered by the Commonwealth to establish what the testifying witness personally did. Counsel should also establish 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 Restraining Order and 258E Harassment Prevention Order Hearings

A protective order hearing is a civil proceeding. The judge applies the rules of evidence with more flexibility than at a criminal trial. The judge may consider reliable hearsay. Mass. G. Evid. § 1106.

The respondent’s rights are based on due process rather than on 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.

Frizado also holds that “[a] defendant has a general right to cross-examine witnesses against him,” which a judge may limit for good cause. The question whether the judge honored those rights depends 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). The Guidelines 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. The respondent’s decision whether to testify also implicates the Fifth Amendment if the respondent faces a related criminal charge. In a civil proceeding, the judge may draw an adverse inference from silence. See 209A restraining orders (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.

Counsel collects the witness’s 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.

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

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

Counsel tests the witness’s perception and memory. Counsel establishes what the witness could see and hear from the witness’s location and what the witness did in the hours afterward.

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

Counsel assembles 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.

Counsel preserves 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 Quincy Office is at 500 Victory Road, Suite 400A.

Related Page

• Rights and Legal Concepts in a Massachusetts Criminal Case