(2015) Rule 12(b)(2)(C)
Rule 14(b)(2)(C) discovery for the purpose of a court-ordered examination under Rule 14(b)(2)(B)
In Commonwealth v. Hanright, 465 Mass. 639, 648 (2013), the Supreme Judicial Court held that, when a judge orders a defendant under Rule 14(b)(2)(B) to submit to a forensic mental evaluation, the judge may also require the defendant to disclose to the court-appointed examiner ("Commonwealth's examiner" or "examiner") treatment records necessary to conduct that forensic evaluation. Rule 14(b)(2)(C) sets out the scope and sequence of that disclosure and the procedure by which it is implemented. Under the rule, both experts – the Commonwealth's examiner and the defendant’s expert – must be given equal access to the information they collectively deem necessary to conduct an effective forensic examination and produce a competent report. The rule achieves this result, without involving the prosecutor, through a reciprocal discovery process that makes available to each expert (1) the defendant’s pertinent medical and mental-health records and (2) the raw data from tests or assessments of the defendant administered during the course of the experts’ respective examinations of the defendant. By ensuring that the experts are working from a common, comprehensive set of records and objective, test-generated data, the rule advances the reliability and fairness of the examinations and the ensuing reports, and it promotes efficiency in the examination process.
Rule 14(b)(2)(C)(i) outlines the defendant’s disclosure obligation. The rule requires that the defendant make available to the Commonwealth's examiner, within 14 days of the examiner’s appointment, three categories of information: (a) the defendant’s mental-health records, broadly defined, that are possessed by defense counsel, (b) the defendant’s medical records that are possessed by defense counsel, and (c) the raw data from any tests or assessments administered to the defendant in the course of the defense expert’s examination of the defendant. This discovery obligation is intended to provide equal and full access for both parties to the defendant’s pertinent mental-health and medical history at the time each expert is conducting his or her examination of the defendant. Full discovery of pertinent source material at this point, when the examiners are forming their respective opinions concerning the defendant’s mental health without yet having access to the opinions of the other, promotes the truth-seeking function of the trial, see Hanright, 465 Mass. at 644-645, while making the examination process more efficient.
In defining the scope of the mental-health and medical records to be produced as those possessed by defense counsel, the rule intends as wide a reach as is reasonably possible, covering every such record that the defense collected in the course of considering whether to assert this defense. At this point in the process, the defendant has waived any privilege that might preclude producing his statements and records to the Commonwealth's examiner, see Hanright, 465 Mass. 2 at 645-648, and the rule means to give both experts access to every record reasonably available, relying on the experts independently to decide which records are relevant to the inquiry. If, in examining the defendant and the records that the defendant produced, the Commonwealth's examiner identifies a mental-health or medical record that the defense overlooked, or chose not to collect, and thus did not produce, Rule 14(b)(2)(C)(iii), discussed below, provides for a process by which the examiner can seek that record. Any such records would, under the rule, be available to both experts.
The raw testing data that Rule 14(b)(2)(C)(i) requires the defendant to produce consists of objective, uninterpreted test results, for example, multiple-choice, bubble outputs from a psychological test with quantification on various scales. As discussed below, Rule 14(b)(2)(C)(iv) requires the same disclosure from the Commonwealth's examiner. The intent is to provide both experts with all of the relevant, objective testing data available at the time each writes his or her report, thus avoiding the need for supplemental reports or evaluations that consider pertinent testing data first revealed in the other expert’s report. Not only would the necessity of such supplemental reports or evaluations extend the examination process, but these reports would necessarily be written after reviewing the opposing expert’s report, thus putting in question the independence of this supplemental evaluation of these testing data. The rule’s discovery obligation reaches only raw testing data; it does not apply to the defense expert’s work product, such as notes interpreting this raw testing data or notes relating to a clinical interview of the defendant. This mandatory disclosure of raw testing data generated by the experts during the course of their respective examinations works no unfair advantage to either side. The discovery obligation is mutual. As with defendant’s mental-health and medical records, the raw data resulting from tests administered to the defendant are essential to determining the defendant’s mental-health at the time in question, and all of these data must be considered by both examiners if their respective reports are to serve their truth-seeking function. Finally, the test results will ultimately be released with the final reports under Rule 14(b)(2)(B)(iii); the only question Rule 14(b)(2)(C)(i) & (iv) address is the timing of that release.
As noted, Rule 14(b)(2)(C)(i) requires the defendant to produce the mental-health and medical records and raw testing data within 14 days after the judge appoints the Commonwealth examiner. Under Rule 14(b)(2)(C)(ii), the defendant’s duty to disclose records and raw testing data continues throughout the examination period provided under Rule 14(b)(2)(B). If the defendant discovers records or raw testing data that was subject to production under Rule 14(b)(2)(C)(i) but was not produced, those records or data must be produced as soon as they are discovered. Moreover, if subsequent to the initial production under Rule 14(b)(2)(C)(i) defense counsel obtains records covered by the rule or the defense expert generates test data covered by the rule, Rule 14(b)(2)(C)(ii) requires that these materials be promptly produced to the Commonwealth's examiner.
As noted, this subsection anticipates the possibility that the Commonwealth's examiner will learn of additional medical or mental-health records that he or she believes necessary to conducting a professionally competent examination. For example, a record provided by the defendant, or a comment by the defendant during the court-ordered examination, might refer to an earlier hospitalization of the defendant for which the defendant did not produce records. If the examiner concludes that there is a reasonable possibility that such records exist and should be reviewed, Rule 14(b)(2)(C)(iii) provides for a procedure by which the examiner can file with the court a prescribed form under seal identifying the requested records (with as much specificity as circumstances reasonably permit) and stating the reason(s) for the request. Because at this point the court has yet to find sufficient evidence of privilege waiver by the defendant to permit the prosecutor’s involvement in the examination process, see Rule 14(b)(2)(B)(iii), under Rule 14(b)(2)(C)(iii), the examiner may not inform the prosecutor of the document request or its contents, absent permission from either the defense or the court.
Upon receiving the sealed request, the court must issue a copy to the defendant, notifying the Commonwealth only that a sealed request for additional records has been filed. The defendant has 30 days to file ex parte a written objection to the requested production. If the defendant timely files such an objection, the judge has the discretion to hold an ex parte hearing on it, including, again in the judge’s discretion, permitting the Commonwealth's examiner to participate. If the judge grants any part of the examiner’s request, the judge must inform the clerk to which records the examiner may have access, and the clerk must then subpoena those records. When the records arrive at the clerk’s office, the clerk must notify the examiner and the defendant of the records’ availability for examination and copying, subject to a protective order forbidding their disclosure to the prosecutor unless the judge determines that the conditions set forth in Rule 14(b)(2)(B)(iii) for permitting prosecutorial access to the examiners’ reports are met. The clerk’s office must maintain the records under seal.
When the report of the Commonwealth's examiner is disclosed to the parties under Rule 14(b)(2)(B)(iii), the records related to the examiner’s Rule 14(b)(2)(C)(iii) request for additional records shall also be released to the parties, subject to the judge’s narrow discretion to forbid such release. At this point in the process, the defendant has effectively waived any claim of privilege concerning evidence relating to the mental-health defense. See Hanright, 465 Mass. at 645-647. The only reason for withholding from the prosecutor information concerning the examiner’s request for additional records would presumably be a concern that information there set forth would have little or no relevance to the mental-health defense and would cause unfair prejudice to the defendant in conducting the mental-health defense, a balancing of interests with which judges are quite familiar. As is so with the release of the examiners’ reports and supporting records, the release of records relating to a request for additional records would be confined to the parties; these records would remain sealed to the public. Granting the prosecutor access to the records relating to a denial of an examiner’s request for records would not only 4 permit full communication between the prosecutor and the examiner in preparing for trial, but it would also allow the Commonwealth to weigh the possibility, however remote, of seeking appellate review of the denial.
As noted above, once the Commonwealth's examiner completes his or her examination of the defendant, the examiner must disclose to the defendant all raw data from any tests or assessments that the examiner conducted or requested. This ensures full reciprocity between the parties. Presumably, the only mental-health or medical records available to the examiner would be those provided by the defendant or produced in response to a court order under Rule 14(b)(2)(C)(iii), making any reciprocal discovery of such records unnecessary. The production of raw testing data by the court-ordered examiner would result in both experts having full access to the same records and raw testing data before they complete and file their respective reports.
(2012): In 2012, Rule 14 was amended in several respects. These revisions are discussed below.
Mental health issues
This amendment responds to the Supreme Judicial Court's expansion of the Blaisdell procedure to analogous situations such as defenses based on an inability to form the requisite intent for an element of the crime, see Commonwealth v. Dias , 431 Mass. 822, 829 (2000), on an inability to premeditate, see Commonwealth v. Contos , 435 Mass. 19, 24 n.7 (2001), and where the defendant places at issue his or her mental ability voluntarily to waive Miranda rights, see Commonwealth v. Ostrander , 441 Mass. 344, 352 (2004). In addition, the Court has indicated in dicta that the same would hold true in the case of a defense based on battered woman syndrome, see Ostrander , 441 Mass. at 355 (2004).
There are two different dimensions to the problem that this subsection addresses. One concerns giving notice to the Commonwealth of a complex issue that the prosecutor otherwise would have no reason to expect to litigate. The other deals with redressing the unfairness of allowing a defense expert to testify based on statements obtained from the defendant without giving the prosecution an opportunity to obtain equivalent access for its expert.
The proposed amendment addresses the first concern by expanding the scope of the notice provision beyond the context of Blaisdell to include all mental health defenses. A mental health defense is one that places in issue the defendant's mental condition at the time of the alleged crime, based on a claim that some mental disease or defect or psychological impairment, such as battered woman syndrome, affected the defendant's cognitive ability. These are complex issues for which the prosecutor should have time to prepare, whether an expert testifies for the defense or not. As used in this subsection, the term "mental health defense" does not include a claim that the defendant's cognitive ability was affected by intoxication, an issue that arises more frequently and does not present the same level of complexity as do the former examples.
The proposed amendment addresses the second concern by requiring notice whenever the defendant intends to rely on expert testimony concerning the defendant's mental condition at any stage of the process on any issue, whether it related to culpability, competency or because it concerns the admission of evidence. Thus, for example, if the defendant intends to introduce expert testimony in support of a claim that a confession was not voluntary, as in Ostrander, the notice would specify that the witness would testify as to the defendant's mental condition at the time of the confession. If it appears that the expert will rely on statements of the defendant as to his or her mental condition, then the judge may order the defendant to submit to an examination pursuant to subsection 14(b)(2)(B).
The proposed amendment deletes "physiological tests" from those that may be included in a court-ordered examination. This deletion is not intended to work any substantive change to the rule but rather to eliminate a superfluous term. Under the rule, "physical tests" is meant to include "physiological tests," including but not limited to neurological tests and examinations such as magnetic resonance imaging (MRI) and positron emission tomography (PET) scans.
The Rule applies not only to experts who are psychiatrists, but to psychologists as well.
The regime for disclosure of expert reports has been amended in light of Commonwealth v. Sliech-Brodeur , 457 Mass. 300 (2010). The timing of the release of the Commonwealth's expert's report was altered only to make clear that the parties can agree on its disclosure at a time earlier than previously set out in the Rule. See Sliech-Brodeur , 457 Mass. at 325 n.34 (2010). As required by Sliech-Brodeur, defense experts as well as the prosecution's must prepare and disclose reports. In order to avoid infringing on the defendant's privilege against self incrimination, the defense expert's report is released to the prosecution at the same time that the defendant receives the report of the Commonwealth's expert. The Rule also has been amended to address the timing of the exchange of reports. The latest date of exchange would be when the defendant expresses a "clear intent" to rely on mental impairment as an issue in the case, relying in part on the defendant's statements or testimony. This will often occur at the final pretrial conference or comparable event. The Rule attempts to avoid the delay and inconvenience of disclosing the reports only after the defendant's expert offers testimony on direct examination. Finally, the rule as amended makes clear the judge's discretion to review any expert report filed with and sealed by the court, and, if feasible and appropriate, to release to the parties any unprivileged material contained in the report prior to the report's full disclosure to the parties.
Once the reports have been released to the parties, they may be shared with the respective experts for each side.
The Rule has been amended to require more detail in the content of the report that both prosecution and defense experts must file. This portion of the Rule is patterned after 18 U.S.C.S. § 4247(c) . In one major respect, however, the Rule goes beyond the federal model by requiring the report to contain a complete account of the statements of the defendant that are relevant to the issue of his or her mental condition. This includes both statements relating to the underlying incident as well as any statements prior to or following it that are relevant to the defendant's mental condition. If the examiner considered written statements of the defendant, the report should contain the relevant portions. If the examiner considered oral statements of the defendant, the report should include the substance of what the defendant said that bears on the question of his or her mental condition. In reporting on the defendant's statements, examiners should not withhold relevant evidence contrary to their own position.
The protection of the work product doctrine and the principle that notes or preliminary drafts are not discoverable if they are incorporated into a final report, applicable elsewhere in the discovery regime that Rule 14 establishes, apply as well in this context.
This provision gives trial judges the flexibility to require the parties to provide additional discovery beyond the information contained in the notice that the defendant must give and the reports that the experts must file. It is a very limited grant of discretion and should be reserved for cases presenting discovery issues that are out of the ordinary. In this respect, it is more restrictive than the analogous discovery provision in Rule 14(a)(2).
Self defense and first aggressor
This amendment implements the discovery obligation created by Commonwealth v. Adjutant , 443 Mass. 649 (2005). The procedure it mandates applies only to situations such as those in Adjutant, where the defendant intends to rely on self defense claiming that the victim was the first aggressor. The notice procedure established in this amendment does not apply to other instances where prior violent conduct by the victim may be admissible, such as where the defendant intends to introduce evidence of a violent act by the victim of which he or she was aware at the time of the incident that is the subject of the criminal case before the court. See Commonwealth v. Fontes , 396 Mass. 733, 735-36 (1986). However, in a case where the defendant wishes to introduce evidence of an act of prior violence by the victim to support a claim based on both Adjutant and Fontes, the notice provision of this subsection would apply.
Beyond notice of an intent to raise the issue of prior violent acts by the alleged victim as it bears on the identity of the first aggressor, the amendment also requires the defendant to provide specific information about each incident. Where the defendant lacks specific details as to the time and place of a prior incident, the notice should contain as much information as is available, subject to a continuing duty to supplement the notice as counsel becomes aware of further facts.
The reciprocal obligation on the Commonwealth extends to all evidence that it intends to introduce to rebut the defendant's claim that the victim was the first aggressor. This may concern the victim's role in the incidents of prior violence upon which the defendant may rely, or any other evidence the Commonwealth may introduce in rebuttal.
Nothing in this amendment is intended to derogate from the discovery obligations of Rule 14(a)(1)(A)-(B) concerning physical evidence or documents that either party may rely on with respect to prior acts of violence by the victim.
This subsection does not affect the ultimate decision the judge must make on the admissibility of the evidence contained in the defendant's notice, or of any rebuttal evidence the prosecution might offer. The rule does contemplate, however, that failure to provide notice in advance may bar a party from offering evidence that might otherwise be admissible.
In 2012, Rule 23 was eliminated because the 2004 revision of Rule 14 largely made it irrelevant. Almost all of the statements that Rule 23 required a party to produce after a witness testified were made part of the automatic pretrial discovery mechanism of Rule 14. Because a small class of statements covered by Rule 23 was not included in the definition of a statement in the 2004 revision of Rule 14(d), an amendment to this subsection was made. The amendment brings within the confines of Rule 14 the remaining class of statements that were subject to the discovery provision of the former Rule 23.
Section 14(d)(1) was amended to include not only writings made by a witness, but also writings made by another and signed or otherwise adopted by the witness. A person otherwise adopts a statement when he or she approves it or accepts it as accurate. See, e.g., Smith v. United States , 31 F.3d 1294,1301 (4th Cir. 1994) ("[n]otes taken by prosecutors and other government agents during a pretrial interview of a witness may qualify as a 'statement' ... if the witness has reviewed them in their entirety - either by reading them himself or by having them read back to him - and formally and unambiguously approved them - either orally or in writing - as an accurate record of what he said during the interview. ")
Section 14(d)(2) was amended to remove the requirement that a witness's statement has been recorded contemporaneously. This is an issue that will only be relevant with respect to written accounts of what the witness said, since by their nature stenographic, mechanical, electrical or other means of recordings must be made contemporaneously. With respect to written accounts, Rule 14(d) includes substantially verbatim statements of a witness that are contained in a document written by someone else, whether the document consists solely of the witness's statement or the witness's statements appear only in part of the document. In the latter case, only that portion of the document that consists of the substantially verbatim account of the witness's statement must be produced. This provision is intended only to require the production of statements that can "fairly be deemed to reflect fully and without distortion" what the witness said. See Palermo v. United States , 360 U.S. 343, 352-53 (1959); United States v. Hodges, 556 F.2d 366 (5th Cir. 1977) cert. den. 434 US 1016 (1978) (that investigators' notes contained occasional verbatim recitation of phrases used by the person interviewed did not make such notes discoverable).
(2008) The definition of a statement was revised in 2008 to exempt the means by which hearing impaired attorneys gain access to an electronic display of the words a witness utters. Whether through a computer assisted real time translation or other means, so long as the witness’ words are not transcribed or saved in electronic form, as in a computer file, the fact that a contemporaneous transcript of the witness’ words appears on a screen to assist a hearing impaired attorney does not fit the definition of a statement under the terms of Rule 14. This amendment does not affect any other aspect of an attorney’s discovery obligations, such as the requirement that a prosecutor reveal exculpatory evidence.
(2004) This rule is based on the concept of reciprocity and has as its aim full pretrial disclosure of items normally within the range of discovery. It is emphasized, however, that this rule establishes a formal discovery procedure and is not intended to discourage those disclosures which may take place at a pretrial conference under Mass. R. Crim. P. 11 or whatever other informal discovery may be agreed upon by the parties. See Commonwealth v. Delaney, 11 Mass. App. Ct. 398 (1981).
The 2004 amendments. The substance of the original version promulgated in 1979 was drawn from Fed. R. Crim. P. 12.1, 12.2 and 16, N.J.R. Crim. P. 3:13-3 (1972), Fla. R. Crim P. 3.220 (1975), and the ABA Standards Relating to Discovery and Procedure Before Trial (Approved Draft, 1979). As more fully discussed infra, in 2004 the Rule was substantially revised to eliminate the requirement of pretrial motions in many routine areas of discovery, instead mandating that such discovers. be (1) mandatory, and (2) provided automatically to both prosecution and defense. These automatic discovery obligations stem directly from the rule itself, but pursuant to subdivision (a)(1)(C) have all the force and effect of a court order. Discovery of items not included in the automatic discovery regime remains subject to the court's discretion, and may be requested by pretrial motion.
The decision to broaden the ambit of mandatory discovery reflects a conviction that full, automatic, and even-handed discovery to both sides will improve both the administration and delivery of justice. Comprehensive discovery affords counsel a full opportunity to prepare the case, rather than be hijacked by surprise evidence, as the Supreme Court has noted. See Wardius v. Oregon, 412 U.S. 470 , 473-74 (1973)("the end of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduce surprise at trial.") It also brings Rule 14 in line with the broad discovery requirements that have existed in district court since the abolition of trial de novo in 1994 under G.L. c. 218, § 26A and District Court/ BMC Rule 3(c) . Finally, the decision to afford mandatory discovery to the prosecution as well as the defense assures that one party will not be disadvantaged by a comparative inability to prepare.
A second major innovation - mandating discovery without the need for motions or argument - is designed to manage court events more efficiently. In areas where discovery is routinely afforded in practice, requiring motions and hearings simply delayed the case and absorbed court and counsel time and expense. The revision recognizes that it is far more efficient to provide automatic discovery of such items to both sides, so long as all parties have a full opportunity to argue against discovery of any of these items where special circumstances in the case warrant divergence from these presumptive procedures. Moreover, automatic discovery early in the case provides the defense with notice of the Commonwealth's case prior to plea negotiations or the filing of other pretrial motions. The grounds for such motions, and the advisability of a plea, may only be revealed through discovery.
The 2004 amendments made some additional, more minor changes to Rule 14. A revision to Rule 14(d) modified the definition of "statements" for purposes of this rule, as described below. Rule 14(e), which formerly specified the timing requirements for discovery motions, was deleted because revised Rule 13(d) now governs all pretrial motion deadlines, including discovery motions. The 2004 amendments did not make substantive changes to section (b), concerning notice of certain defenses to the prosecution, or section (c), concerning sanctions for non-disclosure.
Initially Rule 14(a) classified the items now included in sections (a)(1)(iv) through (ix) as "discretionary discovery," to be ordered within the sound discretion of the trial judge. In 2004, however, subdivision (a) was substantially revised to require these items to be produced to the opposing party automatically. However, if a party believes good cause exists for non discovery of an item listed as automatic discovery, it may resist disclosure pursuant to Rule 14(a)(1)(C), providing for a mandatory stay of discovery of any item that the obligated party believes should not be disclosed, pending resolution by the court.
Subdivision (a)(1) of this rule details the parties' automatic discovery rights. 14(a)(1)(a) sets out the defendant's rights to certain mandatory discovery without motion, and (a)(1)(b) provides reciprocal automatic discovery rights to the prosecution. To a very large extent, the scope of disclosure called for by this subdivision is a codification of prior Massachusetts practice.
Subdivision (a)(1)(A). Mandatory Discovery for the Defendant. This provision lists the items that the prosecution must produce for discovery, with the qualification that the prosecutor's automatic discovery obligation is confined to ascertaining and delivering relevant material it and/or its agents already possess or control. The first paragraph of this subsection limits the Commonwealth's discovery obligation to material "in the possession, custody or control of the prosecutor, persons under its direction and control, or persons who have participated in investigating or evaluating the case and either regularly retort to the prosecutor's office or have done so in the case .....This language, inserted in 2004, is not intended to change existing case law but to reflect it. The language is specifically drawn from Commonwealth v. Daye, 411 Mass. 719 , 734 (1992) (also stating that a prosecutor "cannot be said to suppress that which is not in his possession or subject to his control"). Daye and many cases since describe the prosecution's duty of disclosure as extending to all discoverable material existing in its own files and in the files of others who have participated with them in the prosecution. The latter officials are usually police, but may include others assisting in the prosecution. Thus in Commonwealth v. Martin, 427 Mass. 816 , 823-24 (1998), the S.J.C. reversed a conviction because the prosecutor failed to turn over evidence he did not know existed, but which was known to the Commonwealth's crime lab, because "the prosecution had a duty to inquire" concerning the existence of such tests. Id. at 823. See also Commonwealth v. Bing Sial Liang, 434 Mass. 131 , 135 (2001) (victim witness advocates are part of prosecution team and are subject to the same discovery rules); Commonwealth v. Gallarelli, 399 Mass. 17 , 20 n. 4 (1987). It is also clear, however, that the scope of the prosecutor's duty of disclosure does not extend to complainants and independent witnesses who are not agents of the prosecution with regard to some aspect of the case. Commonwealth v. Lampron, 441 Mass. 265 , 269 n. 4 (2004) (records of medical and social service providers, including D.S.S.); Commonwealth v. Beal, 429 Mass. 530 (1999) (complainant); Commonwealth v. Wanis, 426 Mass. 639 (1998) (Rule 14 does not reach Internal Affairs Division records because the IAD is not part of the prosecution team).
Under (a)(1)(A), each of the following items must be produced for the defense at or before the pretrial conference, provided it exists and is (1) relevant to the case, (2) within the possession or control of the prosecution or its agents as just defined, and (3) not the subject of a motion for a protective order, which stays its production under subdivision (a)(1)(C)). Even before the 2004 revision, the prosecution was required to turn over most of these items in District Court and the Boston Municipal Court pursuant to Dist./ Mun. Ct. Rule 3 and G.L. c. 218, § 26A , which eliminated trial de novo and mandated broad discovery to the defense.
(a)(1)(A)(i). Statements of the defendant(s). Rule 14 previously included the written or recorded statements of the defendant and any co defendants in its category of mandatory discovery which must be disclosed. The 2004 revision includes these items as automatic discovery, and adds "the substance of any oral statements" of the defendant or codefendants. This addition reflects the broader discovery requirement established by case law. The substance of the defendant's oral statements must be provided "as a matter of course to counsel for the defendant" according to Commonwealth v. Lewinski, 367 Mass. 889 , 903 (1975). See also Commonwealth v. Gilbert, 377 Mass. 887 , 892-94 (1979); Commonwealth v. Lopes, 25 Mass. App. Ct. 988 (1988); Commonwealth v. Lapka, 13 Mass. App. Ct. 24 , 31 (1982); Commonwealth v. Janard, 16 Mass. App. Ct. 931 , 933 (1983).
Subdivision (a)(1)(A)(ii). Grand jury minutes and statements of grand jury witnesses. The rule had developed in both the Massachusetts and federal courts that pretrial discovery of grand jury minutes was to be allowed when the defendant showed a "particularized need" that the release of a part or all of the minutes would serve. Dennis v. United States, 384 U.S. 855 (1966); Commonwealth v. Cook, 351 Mass. 231 (1966), cert denied, 385 U.S. 981. The Supreme Judicial Court in Commonwealth v. Stewart, 365 Mass. 99 (1974), announced a new rule mandating that the court routinely order discovery of "the grand jury testimony of any person called as a Commonwealth witness which is related to the subject matter of his testimony at trial.The defense will not be required to show 'particularized need.'" Id. at 105-06.
Superior Court Rule 63 (1974) mandates that stenographic notes of all testimony given before a grand jury shall be taken, but that transcripts thereof need be furnished only as required by the prosecuting officer unless the court orders otherwise. It is within the judge's discretion under this subdivision to order the transcription of a stenographic record. Compare Commonwealth v. Pimental, 5 Mass. App. Ct. 463 (1977) (no error in ordering trial to proceed despite Commonwealth's failure to comply with order to supply defendant with copy of grand jury minutes where minutes not transcribed).
Commonwealth v. Stewart, supra, required production of the grand jury testimony of "any person called as a Commonwealth witness." 365 Mass. 106. However, since 1979 Rule 14 has required the pretrial production of the relevant "written or recorded statements of a person who has testified before a grand jury," whether or not the Commonwealth intends to call that person at trial. There is no requirement that the grand jury testimony have been given before the grand jury which returned the indictment against the defendant, Commonwealth v. Cavanaugh, 371 Mass. 46 57-58 (1976), as long as that testimony is relevant to an issue at trial. See Commonwealth v. Barnett, 371 Mass. 87 , 94 (1976). However, a 2004 amendment requires the prosecution to also provide automatic discovery of the minutes of the grand jury that brought the indictment in the case.
Although the relevant grand jury testimony must be routinely supplied by the Commonwealth, if the judge rules that the requested testimony is either not relevant or is to be the subject of a protective order, a motion for production under Mass. R. Crim. P. 23 must be made at the time the witness testifies on direct examination.
(a)(1)(A)(iii). Exculpatory evidence. This provision requires the prosecution to provide automatic discovery of "any facts of an exculpatory nature." It derives from the constitutional requirement established in Brady v. Maryland, 373 U.S. 83(1963), that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. Accord, United States v. Agurs, 427 U.S. 97 (1976); Moore v. Illinois, 408 U.S. 786 , 794 (1972); Commonwealth v. Adrey, 376 Mass. 747 , 753 (1978); Commonwealth v. Ellison, 376 Mass. 1 , 21 (1978). This duty is also an ethical one, imposed on the prosecution by S.J.C.Rule 3:07, R. P.C. 3.8(d) .
The term "exculpatory" is not intended to be technically construed as encompassing alibi or other complete proof of innocence. Rather, case law at present defines exculpatory evidence to include (but not necessarily be limited to) all information that is material and favorable to the accused because it tends to cast doubt on defendant's guilt as to any essential element of the crime charged, including the degree of the crime; or tends to cast doubt on the credibility of a Commonwealth witness, or on the accuracy of scientific evidence, that the government anticipates offering in its case in-chief. In Commonwealth v. Ellison, 376 Mass. 1 , 22 n. 9 (1978), the S.J.C. interpreted the Brady obligation as encompassing "evidence which provides some significant aid to the defendant's case, whether it furnishes corroboration of the defendant's version of facts, calls into question a material, although not indispensable, element of the prosecution's version of the events, or challenges the credibility of a key Commonwealth witness." See also United States v. Bagley, 473 U.S. 667 , 676-77 (1985) (impeachment material); Commonwealth v. Hill, 432 Mass. 704 (2000); Commonwealth v. Tucceri, 412 Mass. 401 , 414 (1992); Blumenson, Fisher and Kanstroom, Massachusetts Criminal Practice, Sec. 16.6 (1998) (defining exculpatory evidence and the legal consequences of non-disclosure). The S.J.C. has advised that even minor prior inconsistent statements are exculpatory in the case of an important witness, and urged prosecuting attorneys to "become accustomed to disclosing all material which is even possibly exculpatory, as a prophylactic against reversible error and in order to save court time arguing about it." Commonwealth v. St. Germain, 381 Mass. 256 , 262 n. 10 (1980).
To establish a violation of the rule of Brady v. Maryland, supra, as incorporated herein, the defendant must demonstrate upon review that evidence actually existed, Commonwealth v. Adams, 374 Mass. 722 , 732-33 (1978); that evidence would have tended to exculpate him, Commonwealth v. Pisa, 372 Mass. 590 , 595 (1977), cert denied, 434 U.S. 869 (1977); and that the Commonwealth failed to disclose it upon proper request, Commonwealth v. Gilday, 367 Mass. 474 , 487 (1975). Accord, Commonwealth v. Adrey, 376 Mass. 747 (1978). Evidence in possession of the police is Brady material even if the prosecutor is unaware of it, so the prosecutor has a constitutional duty of inquiry. Commonwealth v. Martin, 427 Mass. 816 , 823-24 (1998); Commonwealth v. Baldwin, 385 Mass. 165 , 177 n. 12 (1982); Kyles v. Whitley, 514 U.S. 419 (1995); However, there is no duty to search for exculpatory evidence outside the Commonwealth's possession. Commonwealth v. Martinez, 437 Mass. 84 (2002); Arizona v. Youngblood, 488 U.S. 51 (1988) (police do not have a constitutional duty to perform any particular tests). Evidence in government hands but not within the possession, custody or control of the prosecution team presents a special problem. In Commonwealth v. Wanis, 426 Mass. 639 (1998), the Supreme Judicial Court found that particular evidence in the files of the Internal Affairs Division of the police could be exculpatory evidence to which the defendant was constitutionally entitled, but because the I.A.D. was not a part of the prosecution team it could not be reached by the discovery mechanisms of Rule 14. The proper mechanism in such cases is a subpoena. Id. at 644; Commonwealth v. Lampron, 441 Mass. 265 , 269 n. 4 (2004) (records of medical and social service providers, including D.S.S.):
Although exculpatory evidence is included within automatic discovery, if the defense is aware of items that may be exculpatory that have not been delivered by the pretrial conference, it should file a discovery motion specifying that evidence under subdivision (a)(2), as the magnitude of the error in non disclosure is in part a function of the specificity of the motion. Commonwealth v. Tucceri, 412 Mass. 401 (1992); Commonwealth v. Gallarelli, 399 Mass. 17 , 21 n.5 (1987). In addition to preserving the issue for appeal, specificity can operate to avoid appeals by directing the attention of the prosecutor to those particular materials which the defendant believes would be helpful. A prosecutor cannot be expected to appreciate the significance of every item of evidence in his possession to any possible defense which the defendant may assert. Commonwealth v. Pisa, 372 Mass. 590 , 595 (1977), cert denied, 434 U.S. 869 (1977). Assembly and disclosure of those materials - and thus the entire pretrial phase of the proceedings - is expedited by specific motions in such cases.
(a)(1)(A)(iv). Names, addresses, and dates of birth of the Commonwealth's prospective non-law enforcement witnesses. Names, addresses, and the criminal records of prospective witnesses were originally denominated discretionary discovery in Rule 14(a). However, some case law emerging around the time of the Rule's promulgation mandated such discovery. Commonwealth v. Adams, 374 Mass. 722 , 732 (1978); Commonwealth v. Clark, 363 Mass. 467, 474 (1973); Commonwealth v. Ferrara, 368 Mass. 182 (1975) (confrontation right to juvenile records which indicate bias despite confidentiality of juvenile records). But see Halner v. Commonwealth, 378 Mass. 388 , 390 (1979). Legislation since makes defense discovery of names and addresses of Commonwealth witnesses a matter of right in district courts, and also requires the court to order the Probation Department to produce the prior criminal record of these witnesses. G.L. c. 218, § 26A .
Therefore, in 2004 Rule 14 was amended to include this provision, which requires automatic discovery of the names, addresses, and birthdates (which are necessary to locate a witness' criminal record) of prospective witnesses other than law enforcement witnesses, which are covered by subdivision (a)(1)(v)). It also requires the Commonwealth to provide this information to the Probation Department. A separate provision in this Rule, (a)(1)(D), requires the court to order the Probation Department to furnish the parties with the criminal record of all defendants and Commonwealth witnesses within five days of the Commonwealth's notification to the department of its prospective witnesses.
In some cases, there may be special circumstances warranting non disclosure of a witness' address. For example, if a witness may be threatened or endangered by a defendant, disclosure should not be compelled. See e.g., Commonwealth v. Rivera, 424 Mass. 266 , 269-72 (1997); Commonwealth v. French, 357 Mass. 356 , 399 (1970). The identity of informants may be privileged against disclosure in some cases. Commonwealth v. Abdelnour, 11 Mass. App. Ct. 531 , 538 (1981); Roviaro v. United States, 353 U.S. 53 (1957). There are several options available in such cases. Ordinarily the Commonwealth will move for a protective order under subdivision (a)(6), which stays automatic discovery of the contested item until the issue can be resolved by the court. If after a witness' identity and address have been disclosed, the court is advised that his safety is endangered, there is provision in Mass. R. Crim. P. 35 for the perpetuation of testimony. Once a witness' testimony is recorded, little reason remains for the defendant to attempt to intimidate him. Finally, subdivisions (a)(6) and (a)(7) provide specifically that the court can order information (including witnesses' names) to be disclosed only to defendant's counsel and not to the defendant himself. See also G.L. 258B § 3(h) , which allows a person to request non disclosure of his or her address, telephone number, or place of employment or education, and if granted then prohibits disclosure of that information in open court.
If, after the initial phase of discovery, it is determined that additional witnesses will be called, the defendant may, in the discretion of the court, be granted time within which to investigate and interview that witness. See generally Commonwealth v. Lopez, 433 Mass. 406 , 413-414 (2001); Commonwealth v. Baldwin, 385 Mass. 165 , 176-77 (1982); Commonwealth v. Mains, 374 Mass. 733 (1978).
The Commonwealth's Probation Department records reveal with assurance only Massachusetts convictions; where known facts suggest that a witness has a record elsewhere, an inquiry as to out of state convictions may be a reasonable practice. Commonwealth v. Corradino, 368 Mass. 411 , 422 (1975). See also Commonwealth v. Donahue, 396 Mass. 590 , 599 (1986) (normally the state must produce the federal "rap sheet" of witnesses to the defendant).
(a)(1)(A)(v). Names and business addresses of prospective law enforcement witnesses. In the first two decades of practice under Rule 14, it had become routine for the Commonwealth to provide the business address of a police witness when ordered to provide all prospective witness addresses. The 2004 amendment recognized this, and the fact that felons are statutorily barred from serving as police officers, by creating this subdivision that modifies the Commonwealth's obligation with regard to prospective witnesses who are law enforcement officers. In such cases the Commonwealth must provide automatic discovery of the name and business address of the witness. Further discovery concerning the witness, including home address and birth date, may be pursued by motion under subdivision (a)(2). However, in the rare case where a prospective police witness has a criminal record which could be used for impeachment, the Commonwealth should provide automatic discovery of this fact under subdivision (a)(1)(A)(iii)(exculpatory evidence).
(a)(1)(A)(vi). Intended expert opinion evidence. The Commonwealth's intended expert opinion evidence was made part of automatic, mandatory discovery to the defense under this 2004 provision. The subdivision specifies that expert opinion evidence includes "the identity, current curriculum vitae, and list of publications of each intended expert witness, and all reports prepared by the expert that pertain to the case." Discovery of the prosecution's expert opinion is also a matter of statutory right in district court. G.L. c. 218, § 26A .
Subdivision (vi) does not apply to experts who may have been interviewed or retained but whose testimony or reports are not intended for use at trial. It also does not apply to expert evidence relevant to a defendant's criminal responsibility or to a mental impairment relevant to mens rea, which are governed by Rule 14(b)(2) as described infra.
Under the general automatic discovery provisions of subdivision (a)(1)(A), only evidence in the possession, custody or control of the prosecution at the time of the pretrial conference is due at that time. A party may discover or retain an expert later in the course of trial preparation, at which point it must provide discovery of its intended expert opinion evidence under the continuing duty requirement of subdivision (a)(4).
(a)(1)(A)(vii). Material and relevant police reports, photographs, tangible objects, intended exhibits, reports of physical examinations of any person or of scientific tests or experiments, and statements of persons the Commonwealth intends to call as witnesses. Most of these items were treated as "discretionary discovery" in the original provisions of Rule 14. The 2004 amendments to Rule 14 make discovery of these items mandatory and automatic. However, in district court defense discovery of these items had been mandated since 1994 under G.L. c. 218, § 26A par. 2, which requires the prosecution to provide discovery of certain specified items and also "any material and relevant evidence [and] documents." Because subdivision (vii) does not include the latter term but only specified items, the Commonwealth's mandatory discovery obligation remains broader in district courts than in courts where sec. 26A does not apply. Nevertheless, the items included in this subdivision are likely to exhaust the Commonwealth's evidence in many cases and therefore obviate the need for filing motions to obtain further discovery in those cases.
This provision encompasses "statements of persons," but with regard to this item limits the scope of discovery to statements of only those persons whom the Commonwealth intends to call as witnesses at trial. Rule 14(d), described infra, defines the term "statement." Mass. R. Crim. P. 23(b) affords an overlapping right to a testifying witness' statements prior to cross examination. Similarly, subdivision (iii) requires that a witness' prior inconsistent statement be provided to opposing counsel as exculpatory evidence, insofar as it would diminish the credibility of the witness. Commonwealth v. St. Germain, 381 Mass. 256 , 262 (1980). Some statements of persons who may not be prospective witnesses must be produced for defense discovery pursuant to other provisions, such as police reports included in this subdivision, co defendants' statements pursuant to subdivision (i), grand jury minutes and relevant testimony pursuant to subdivision (ii), exculpatory statements pursuant to subdivision (iii), and statements made by or in the presence of an identifying witness relevant to the issue of identity pursuant to subdivision (viii).
This subdivision also mandates automatic discovery of any relevant reports of physical examinations or scientific tests or experiments. Often but not always, these will be in conjunction with expert opinion evidence, which must be produced pursuant to subdivision (vi). Under this provision such reports must be produced if relevant, whether or not intended for use at trial and whether or not prepared by an expert. When tests of physical evidence have been conducted by the Commonwealth, the defense also has a right of access to that evidence to conduct its own independent tests, at least unless the testing of another available item would be as probative on the issue. Commonwealth v. Neal, 392 Mass. 1 , 10 (1984); Commonwealth v. Nicholson, 20 Mass. App. Ct. 9 , 16 n.4 (1985). Regarding access to the government's evidence for investigation generally, see California v. Trombetta, 467 U.S. 479 , 485 (1984) (Sixth Amendment right); Commonwealth v. Balliro, 349 Mass. 505 (1965) (art. 12 right).
(a)(1)(A)(viii). Identification procedures and statements. Under this subdivision promulgated in 2004, the Commonwealth must provide automatic discovery of any statements made by, or in the presence of, an identifying witness if relevant to the issue of identity or to the fairness or accuracy of the identification procedures. It must also provide a summary of identification procedures to the defense.
Many cases are not "wrong man" cases. In such cases, if there have been no identification procedures the prosecution is not required to do anything under this subdivision. But where identification is at issue and procedures have been used they should be disclosed. Commonwealth v. Dougan, 377 Mass. 303 , 316 (1979) (the due process right to fair identification procedures "would mean little if it did not carry with it the right to be informed of the details of any out of-court identification, even if it were not used at trial"). Prior Massachusetts case law (as well as the constitutional obligation to disclose exculpatory evidence) affords the defendant a right to discover whether the witness previously failed to identify him. Commonwealth v. Clark, 378 Mass. 392 , 403 (1979).
(a)(1)(A)(ix). Promises, rewards or inducements made to prospective witnesses. Such inducements offered by the prosecution affect the credibility of the witness, and the defense is constitutionally entitled to discover it. See Commonwealth v. Hill, 432 Mass. 704 , 715 (2000); Giglio v. United States, 405 U.S. 150 , 154-55 (1972); Commonwealth v. Luna, 410 Mass. 131 , 139-40 (1991). An implicit quid pro quo may exist, and must be disclosed, even in the absence of any explicit promise. Even if there are no explicit promises, any implicit quid pro quo must be revealed. Commonwealth v. Johnson, 21 Mass. App. Ct. 28 , 40-41 (1985). Moreover, even if there is no quid pro quo by which consideration is given in return for testimony, any material understanding or agreement between the government and a key witness or his attorney must be revealed. Commonwealth v. Collins, 386 Mass. 1 , 11-12 (1982); Commonwealth v. Gilday, 382 Mass. 166 , 175-76 (1980) (promise to witness' attorney not known to witness must be disclosed); California v. Trombetta, 467 U.S. 479 , 485 (1984).
This subdivision requires the Commonwealth to disclose promises, rewards or inducements to only those witnesses it intends to present at trial. However, this obligation does not exhaust the Commonwealth's constitutional obligation to disclose all exculpatory evidence, or its parallel obligation under subdivision (iii) of this Rule. Such exculpatory evidence could, for example, include a promise or inducement made to a hearsay declarant whom the Commonwealth does not intend to present at trial.
(a)(1)(B). Reciprocal discovery to the prosecution. Originally, Rule 14(a)(3) (as then numbered) provided that a court could order reciprocal discovery to the prosecution in its discretion. This provision derived from then recent holdings of the Supreme Court relative to the rights of the prosecution to discover the defendant's case.
The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.
United States v. Nixon, 418 U.S. 683 , 709 (1973) (emphasis supplied). Under these cases, the prosecution was empowered to call upon the power of the court to compel production of evidence which will facilitate full disclosure of all the relevant facts. United States v. Nobles, 422 U.S. 225 (1975). See Commonwealth v. Hanger, 377 Mass. 503 (1979); Blaisdell v. Commonwealth, 372 Mass. 753 (1977); Commonwealth v. Edgerly, 372 Mass. 337 (1977); Commonwealth v. Lewinski, 367 Mass. 889 , 903 n. 10 (1975).
Revisions to Rule 14 in 2004 expanded the defense obligation by making reciprocal discovery mandatory, not discretionary. Under Rule 14(a)(1)(B), when the prosecution certifies that it has disclosed and made available the discoverable items it has, it is entitled to automatic reciprocal discovery of specified categories of defense evidence. Any differences between the obligations on the defense and prosecution result from asymmetrical constitutional requirements. There are two, deriving from the defendant's right to due process and privilege against self incrimination. First, the defense obligation is limited to evidence it intends to introduce at trial, whereas the prosecution must turn over some evidence it may intend not to use (and in the case of exculpatory evidence, is constitutionally required to do so). Since its promulgation in 1979, Rule 14 has limited reciprocal discovery to "intended" defense evidence because the U.S. Supreme Court case of Williams v. Florida, 399 U.S. 78 (1970), upheld the constitutionality of prosecutorial discovery only on the basis of this limitation. According to Williams, the Fifth Amendment privilege limits prosecutorial discovery to evidence the defendant intends to introduce. Intention in this context is, of course, fluid as investigation and discovery progress and the defendant is subject to the continuing duty imposed by subdivision (a)(4), infra. The second difference between the prosecution and defense obligations is in the order of disclosure: the prosecution gets its discovery only after it has produced discovery for the defense. In Wardius v. Oregon, 412 U.S. 470 (1973), the Supreme Court found reversible error, in violation of due process, for the prosecution to receive categories of discovery without discovery of those same categories to the defense. To assure against such reversible error, and to allow defendants to assess what evidence they should introduce as required by the Williams "intended evidence" constitutional limitation, the Rule provides for defense discovery to take place first.
Under subdivision (a)(1)(B), automatic reciprocal discovery to the prosecution commences only after the Commonwealth has delivered all defense discovery required pursuant to the automatic discovery provisions of (a)(1)(A) and any other extant discovery orders. After that point, and by a date agreed to by the parties or ordered by the court, the defense is obligated to provide the Commonwealth with discovery of the names, addresses, dates of birth, and statements of its intended witnesses; and of every relevant item described in subdivisions (a)(1)(A) (vi), (vii), and (ix) that it intends to use at trial. In Commonwealth v. Reynolds, 429 Mass. 388 (1999), a pretrial agreement signed by the parties obligated defense counsel to provide not only statements of witnesses it intended to introduce, but also statements of Commonwealth witnesses that it intended to use in cross examination. The specified obligations under this subdivision do not go so far. Just as subdivision (a)(1)(A)(vii) requires the Commonwealth to disclose the statements of its own intended witnesses, subdivision (a)(1)(B) requires the defense to provide discovery of the statements of its own witnesses, not all witnesses. Discovery of other statements must be pursued by motion.
A separate provision in this Rule affords the prosecution notice of certain defenses if the defendant intends to assert one of them at trial. As discussed infra, under subdivision (b), the defense must provide notice and/or discovery if it intends to defend on the basis of alibi, lack of criminal responsibility, or the existence of a license, claim of authority or ownership, or exemption.
(a)(1)(C). Stay of automatic discovery; sanctions. According to this subdivision, the automatic discovery provisions of subdivision (a)(1) which stem directly from the Rule "shall have the force and effect of a court order." If a party violates one of its automatic discovery obligations, the court may impose any of the sanctions permitted for non compliance with a court order under subdivision 14(c). Id.
This provision also allows a party to seek a judicial determination of whether an item should not be subject to discovery, notwithstanding its inclusion in the automatic discovery regime. If a party has good cause for declining to provide such discovery, it should move for a protective order. This subdivision provides that the filing of such a motion stays production of the item pending a ruling by the court.
(a)(1)(D). Record of convictions of the defendant, codefendants and prosecution witnesses. Under this provision, at arraignment the court must issue an order to the Probation Department, directing it to deliver to all parties its record of all prior complaints, indictments, and dispositions of the defendants and all witnesses identified pursuant to subdivision (a)(1)(A)(iv). Under the latter provision, the Commonwealth must notify the Probation Department of its intended witnesses. The court's order must also require the Probation Department to provide this information no later than 5 days after it has been notified by the Commonwealth of its witnesses. See also Reporter's Notes to (a)(1)(A)(iv).
(a)(1)(E). Notice and preservation of evidence. Under this provision promulgated in 2004, if the prosecutor becomes aware of the existence of an item that would be subject to mandatory discovery but for the fact that it is not within the prosecutor's possession, custody or control, the prosecutor must notify the defendant of the existence (and if known, the location) of the item. The defendant may then move for an order requiring the individual or entity in possession of the item to preserve it for a specified period of time. If either party successfully moves for such a preservation order under subsection (E)(ii), that party should insure that the order is served on the individual or entity in possession of the item.
This subdivision does not require the prosecution to search for new evidence. It applies only to evidence already known to exist without inquiry; and only to evidence held by independent third parties who are not part of the prosecution team and thus not subject to rule 14 discovery. In addition to insuring that the defense is aware of potentially significant evidence known to the prosecution, this provision is intended to place the defendant in a position to move the court for an order preventing destruction of the evidence so that a subsequent defense subpoena may be effective. To provide a party or independent witness with recourse when a preservation order is inappropriate or unnecessary, the rule provides for motions to vacate or modify the preservation order, or to protect the probative value of the evidence by alternative means.
(a)(2). Motions for discovery. Although most discovery is made automatic under the rule, there may be additional items not encompassed by Rule (a)(1)(A) that are properly discoverable. Rule 14(a)(2) provides for motions to discover such material. Such a motion may only be made for discovery of material and relevant evidence that is not encompassed by the automatic discovery provisions; if items in the latter category are not produced, the proper response is to file a motion to compel discovery or, in an appropriate case, a motion for sanctions under (a)(1)(C).
The timing and deadlines for discovery motions are set out in Rule 13(d)(1). Additionally, because the Commonwealth must provide discovery before it can obtain reciprocal discovery, subdivision (a)(2) provides that the Commonwealth may file a motion for discovery only after it has filed a Certificate of Compliance under subdivision (a)(3).
Nothing in this Rule is intended to prohibit the court from ex parte consideration of discovery motions in appropriate circumstances, consistent with law.
(a)(3). Certificates of compliance. Under this subdivision, each party must file a certificate of compliance when it has met its automatic or court ordered discovery obligations (other than disclosure of expert reports, which may be written late in the case). The certificate must identify each item provided.
The certificate is properly filed when, to the best of its knowledge and after reasonable inquiry, the party has provided discovery of all covered items it then has. The provision recognizes that additional discovery will likely occur as new information and witnesses are obtained, and mandates a supplemental certificate for that purpose.
(a)(4). Continuing duty. This is taken from Rule 3.220(f) of the Florida Rules of Criminal Procedure and has a counterpart in the Federal Rule, the New Jersey Rule and the ABA Standards Relating to Discovery and Procedure Before Trial (Approved Draft, 1970). This subdivision imposes a continuing duty to promptly provide court ordered discovery as additional information is acquired. The duty continues throughout the trial, Commonwealth v. Costello, 392 Mass. 393 (1984), and includes an obligation to correct previous disclosures that have turned out to be inaccurate. Commonwealth v. Borans, 379 Mass. 117 , 153 (1979); Commonwealth v. Gilbert, 377 Mass. 887 , 893 (1979).
(a) (5). Work product. Work product is protected under the federal rule and the ABA Standards, supra. The sanctity of a party's "work product" is a well recognized principle that was specifically approved by the Supreme Court relating to its application to discovery under the Federal Rules of Civil Procedure, Hickman v. Taylor, 329 U.S. 495 (1947). The principle has equal applicability to criminal discovery.
The definition of "work product" is drawn in part from Rules of Criminal Procedure (ULA) rule 421(b)(1)(1974). The subdivision defines "work product" as limited to portions of documents containing the "legal research, opinions, theories or conclusions of the adverse party or its attorney and legal staff' or statements of the defendant made to counsel or counsel's legal staff. Although witness statements obtained by counsel are not deemed work product under this definition, see Commonwealth v. Paszko, 391 Mass. 164 , 186-88 & n.27 (1984) and Commonwealth v. Bing Sial Liang, 434 Mass. 131 , 140 (2001), in some cases "witness statements may be so commingled with counsel's theories, or so revealing of counsel's mental processes by virtue of the areas covered, as to be unsegregable and constitute work product." Blumenson, Fisher and Kanstroom, Massachusetts Criminal Practice (1998), Sec. 16.2C, citing Commonwealth v. Lewinski, 367 Mass. 889 , 902 (1975) and Upjohn v. United States, 449 U.S. 383 , 400-01 (1981).
(a)(6) (Protective orders) and (a)(7) (Amendment of discovery orders). Although Rule 14(a) provides for automatic, mandatory discovery, if danger or abuse can be shown, or a privilege preventing disclosure applies, discovery need not be granted. The power of the court to restrict the scope of otherwise permissible discovery is recognized in the Federal Rule, the New Jersey Rule, the Florida Rule, and the ABA Standards, supra.
Protective orders are designed for the unusual case in which the granting of discovery will work to the injury of the person whose material is to be discovered or to the injury of some third person. Although a party must move for such an order, this does not imply that the moving party always has the burden of proof. Ordinarily the party or person opposing discovery has the burden of showing why the discovery of requested materials must be denied or granted subject to restriction, but in certain cases including some privileges, statutory or case law may provide that the party seeking disclosure has the burden of proof. Therefore the 2004 revision added to this subdivision an explicit recognition that "nothing in this provision shall be deemed to alter the allocation of the burden of proof with regard to the matter at issue, including privilege."
With respect to automatic discovery mandated under subdivision (a)(1), a motion for a protective order stays the discovery obligation pending a ruling by the court. Subdivision (a)(1)(C). With respect to discretionary discovery sought by motion under subdivision (a)(2), a protective order may be sought only to restrict (and not prevent completely) the scope of discovery, because if reasons exist to wholly deny discovery ab initio, it is within the discretion of the court to deny the discovery motion, without requiring the opponent to the motion to seek a protective order. If what is sought is the modification of an existing discovery order the following subdivision, (a)(7), provides the appropriate remedy.
The provisions of these subdivisions that the court may, in certain situations, grant discovery to a defendant on condition that the material to be discovered be available only to counsel for the defendant, is merely a corollary to that sentence of subdivision (a)(6) which gives the court the power, upon a sufficient showing, to deny, restrict, or defer discovery or inspection. Fed. R. Crim. P. 16(d) and ABA Standards § 4.4 give the judge this same power. The commentary accompanying the ABA Standard indicates that this restriction on disclosure means "such adjustment of the time, place, recipient, and use of disclosures as may commend themselves in the particular case." ABA Standards, supra, comment at 102. Since it is constitutionally permissible to limit pretrial discovery in criminal cases, United States v. Randolph, 456 F.2d 132 (3d Cir 1972), there should be no objection to the Commonwealth's giving material only to defendant's counsel in certain situations, which is preferable to denying discovery altogether. It is contemplated that this provision of Rule 14 will sometimes be used to prevent a defendant from seeing his own psychiatric report. In some instances, the mental well being of the defendant could be adversely affected if he or she has access to such a report. United States v. Moody, 490 F.2d 866 (5th Cir 1974). Although the defendant in Moody had been convicted, the same rationale is applicable to the defendant awaiting trial.
Nothing in this Rule is intended to prohibit the court from ex parte consideration of a motion for a protective order in appropriate circumstances, consistent with law.
(a)(8). Waivers and agreements to alter discovery rights. Rule (a)(8) allows the parties to change discovery requirements by waiver or agreement, including both the scope and timing of discovery. The waiver or agreement must be in writing, signed by the waiving party or the parties to the agreement, identify the specific items included, and be served upon all parties.
Rule 14(b), governing notice to the prosecution of certain intended defenses, was left essentially unchanged by the 2004 revision, except for the substitution of gender neutral language. Under this provision, the prosecution is entitled to notice, and in some cases discovery, when the defendant intends to defend on the basis of alibi, lack of criminal responsibility, or the existence of a license, claim of authority or ownership, or exemption.
The philosophy and provisions of this subdivision are drawn from Commonwealth v. Edgerly, 372 Mass. 337(1977); Blaisdell v. Commonwealth, 372 Mass. 753 (1977); and a number of other sources. See Commonwealth v. Hanger, 377 Mass. 503 (1979); Commonwealth v. Lewinski, 367 Mass. 889 , 902-03 and n. 10 (1975); Fed. R. Crim. P. 12.1, 12.2; Fla. R. Crim. P. 3.200; Rules of Criminal Procedure (ULA) rule 423(a)(1) (2) (1974); National Advisory Commission on Criminal Justice Standards and Goals, Courts, standard 4.9 (1973).
The Supreme Court in Williams v. Florida, 399 U.S. 78 (1970), held that a prosecutor could obtain discovery from a defendant by requesting information pertaining to evidence which the defendant intended to offer at trial without violating the fifth amendment privilege against self incrimination. Although the defense is compelled to make an accelerated determination of the evidence it is to introduce at trial, the nature of this compulsion is such that it is not unconstitutional. While the holding of the Supreme Court related only to the discovery of a defendant's prospective alibi defense, the decision indicates that the rule announced is applicable to other forms or prosecutorial discovery as well. See Commonwealth v. Lewinski, 367 Mass. 889 , 903 n. 10 (1975). The types of disclosures mandated by subdivision (b)(1)-(3) occur in those situations where in fairness the Commonwealth is entitled at least to notification.
(b)(1). Notice of alibi. Notice-of-alibi rules have been in existence at least since 1927 and as of 1978 at least half the statutes had such rules. See Williams v. Florida, 399 U.S. 78 , 81-82 (1970). The substance of this subdivision is taken from Commonwealth v. Edgerly, 372 Mass. 337 , 344-45 (1977).
In Gilday v. Commonwealth, 360 Mass. 170 (1971), the Supreme Judicial Court, mindful of the implications of the Supreme Court's decision in Williams v. Florida, 399 U.S. 78 (1970), held that discovery by the prosecution of the defendant's intent to interpose an alibi defense and of the names of any prospective witnesses in support of the alibi violated due process because in Massachusetts a defendant did not have an equal right to discovery from the prosecution. Nearly all a defendant's rights to discovery had been subject to judicial discretion under Massachusetts law. The Supreme Court in Wardius v. Oregon, 412 U.S. 470 (1973), specifically held that reciprocity in discovery rights was a constitutional prerequisite to the validity of prosecutorial discovery. That requirement is supplied by subdivisions (b)(1)(B)-(C).
The purpose of such a rule is two fold. First, alibi defenses are the most frequently and easily fabricated defenses. See, for example, Commonwealth v. Harris, 364 Mass. 236 , 238 (1973). By requiring the defendant to give the Commonwealth pretrial notice of his intent to interpose such a defense and a list of witnesses to be used in support of the alibi, the defendant is prevented from using an eleventh hour defense, and the Commonwealth is given the tools necessary to uncover fabrication. Fairness to the defendant is insured by granting him discovery of the identities of rebuttal witnesses. Second, the need to grant continuances on the basis of surprise at trial will no longer exist.
As the Edgerly court observes, if, in the court's discretion, no other order is appropriate to serve the purposes of this rule, it may exclude the testimony of any undisclosed witness offered by either party as to the defendant's absence from, or presence at, the scene of the alleged offense. 372 Mass. at 345. Exclusion of such alibi testimony, other than the defendant's, is authorized in subdivision (b)(1)(D). See Commonwealth v. Cutty, 47 Mass. App. Ct. 671 , 673 (1999). If a defendant against whom a sanction is imposed is convicted, he or she may, of course, preserve for argument on appeal the issue of whether imposition of that sanction amounted to an abuse of discretion or the denial of any constitutional right. Commonwealth v. Edgerly, supra at 339 and 343. See generally Commonwealth v. Reynolds, 429 Mass. 388 , 398-399 (1999); Commonwealth v. Durning, 406 Mass. 485 , 496 (1990); Commonwealth v. Chappee, 397 Mass. 508 , 518 (1986); Taylor v. Illinois, 484 U.S. 400 (1988). In Commonwealth v. Hanger, 377 Mass. 503 (1979), the procedure authorized by this subdivision was substantially approved in the absence of any rule, even though the Commonwealth's motion was not presented until the second day of trial.
(b)(2). Notice of intent to defend by lack of criminal responsibility or mental incapacity. The subject matter of this subdivision was treated by the Supreme Judicial Court in Blaisdell v. Commonwealth, 372 Mass. 753 (1977), and the procedures contained herein substantially restate those dictated by the court in that opinion. At its inception, this subdivision governed only a prospective insanity defense, but since then the Supreme Judicial Court has extended its scope to govern other defense claims based on mental impairment or incapacity, including mental incapacity to entertain mens rea, Commonwealth v. Diaz, 431 Mass. 822 (2000), or to voluntarily waive Miranda rights, Commonwealth v. Ostrander, 441 Mass. 344 (2004).
Provisions requiring notice of an intent to rely upon a defense of lack of criminal responsibility or diminished mental capacity have a different purpose than notice of alibi provisions. The latter, as noted above, are directed at preventing "eleventh hour" or fabricated alibis. On the other hand, because rebuttal of an insanity defense requires a degree of expertise on the part of a cross examiner that can only be gained through pretrial research, this subdivision is intended to meet the need of a prosecutor to become familiar with the complex nature of this type of defense.
The Supreme Judicial Court in Gilday v. Commonwealth, 360 Mass. 170 (1971), upheld an order to the defendant to disclose his intent with regard to the interposition of a defense of not guilty by reason of insanity despite the fact that the system of discovery then in effect was non reciprocal. Implicit in the court's opinion is the fact that due process did not require reciprocation by the Commonwealth because only notice of intent to interpose the defense, and not the identity of the defendant's witnesses nor the evidence intended to support of that defense, was required. In short, the only response by the Commonwealth would be that opposition to that defense would be presented, which does not reasonably require notice.
As the court recognized in Blaisdell v. Commonwealth, the privilege against self incrimination is not implicated by a mere notice requirement. 372 Mass. at 767. Nor is there anything in that privilege which precludes
an order requiring a defendant to reveal on motion of the prosecution the information of (a) whether a defendant pursuant to such defense intends to offer expert testimony thereon; (b) the names and addresses of such expert witnesses as the defense intends to call; (c) whether a defendant's experts intend to rely in whole or in part on statements of the defendant pertaining to his mental state at or about the time of the commission of the alleged crime or as it may be otherwise relevant to the issue of his mental responsibility therefor.
Id. That information is required by subdivisions (b)(2)(A)(ii)-(iii) of this rule. If the defendant files the notice of intent, the Commonwealth is subject to the reciprocity requirements of this rule and as imposed by Commonwealth v. Edgerly, 372 Mass. 337 , 342 (1977); Blaisdell v. Commonwealth, 372 Mass. 753 (1977).
If in answer to subdivision (b)(2)(A)(iii) the defendant responds that his expert witnesses intend to rely upon statements of the defendant as a foundation for their testimony, or if that fact becomes apparent from inquiry by the judge or developments in the case, the judge may order that the defendant submit to a psychiatric examination. (b)(2)(B).
If ... a defendant voluntarily submits to psychiatric interrogation as to his inner thoughts, the alleged crime and other relevant factors bearing on his mental responsibility and, on advice of counsel, voluntarily proffers such evidence to the jury, we feel that the offer of such expert testimony based in whole or in part on a defendant's testimonial statements constitutes a waiver of the privilege [against self-incrimination] for such purposes ... In short, by adopting this approach, a defendant who seeks to put in issue his statements as the basis of psychiatric expert opinion in his behalf opens to the State the opportunity to rebut such testimonial evidence in essentially the same way as if he himself has testified ... Under such a view there would be no violation of his privilege should the court then order him under c. 123, § 15 , to submit to psychiatric examination so that the jury may have the benefit of countervailing expert views, based on similar testimonial statements of a defendant in discharging its responsibility of making a true and valid determination of the issues thus opened by a defendant.
Blaisdell v. Commonwealth, 372 Mass. 753 , 765-766 (1977) (citation omitted). The privilege against self incrimination does not bar the Commonwealth's use of evidence which incriminates the defendant, but rather the compelled production of such evidence by the defendant; yet it is clear that an examination pursuant to this subdivision constitutes compelled production. Blaisdell v. Commonwealth, supra, 372 Mass. at 758. See also Commonwealth v. Baldwin, 426 Mass. 105 (1997); Commonwealth v. Wayne W., 414 Mass. 218 , 228-30 (1993). Therefore, if the psychiatric report contains evidence of a testimonial character, it is not to be made available to either party unless the defendant is to testify on his own behalf or is to offer expert testimony based on his statements ([b][B][iii][c]) or unless the defendant, by motion, requests that it be made available. ([b][B][iii][b]). Ordering the examination to be conducted prior to a defendant's formal waiver of the privilege against self incrimination is justified on the basis that:
To require the Commonwealth to wait may ... well cause it to be disadvantaged in meeting the issues raised by a defendant's evidence by virtue of the fact that its expert witnesses will lack adequate time to examine properly a defendant and his evidence in order to prepare for trial. Alternatively, a continuance of the trial may cause needless expense to the Commonwealth, unnecessary inconvenience to the court and to the jurors, and disruption of the progress of the trial which may cause harm to either the prosecution or the defense. To require the Commonwealth to wait until such a waiver occurs at trial seems not only inexpedient and unwise but also unnecessary.
Blaisdell v. Commonwealth, supra, 372 Mass. at 767.
(b)(3). Notice of defenses based on license, authority, ownership or exemption. This subdivision, promulgated in 1979, requires the defendant to furnish the prosecution with notice of his intent to rely upon a defense based upon a license, claim of authority or ownership, or exemption.
A "license" is defined as a right granted by the Commonwealth or other competent authority to do a particular act or carry on a particular business which, without such license, would be unlawful. A "claim of authority" is an assertion that the claimant has received an express or implied right to do an act from one lawfully empowered to grant such right. A "claim of ownership" is an assertion that the claimant has a right of possession enforceable in a court. An "exemption" is a release from a duty or obligation to which others are subject.
The requirement of disclosure in this subdivision is reasonable when considered in light of "the proposition that the end of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduce surprise at trial." Wardius v. Oregon, 412 U.S. 470 , 473 (1973).
The concept of mandating notice of criminal defenses other than alibi and insanity, subdivisions (b)(1)-(2) supra, was advocated by the American Bar Association in the ABA Standards Relating to Discovery and Procedure Before Trial (Approved Draft, 1970):
Subject to constitutional limitations, the trial court may require that the prosecuting attorney be informed of the nature of any defense which defense counsel intends to use at trial ..
Considerations of reciprocity, dealt with by the United States Supreme Court in connection with notice of alibi statutes in Wardius v. Oregon, 412 U.S. 470 (1973) and Williams v. Florida, 399 U.S. 78 (1970), and by the Supreme Judicial Court in Gilday v. Commonwealth, 360 Mass. 170 (1971), are inapposite to subdivision (b)(3). The Williams-Wardius cases hold that state statutes requiring notice to be given the prosecution that an alibi defense is to be raised at trial, with the names of witnesses to be called in support of the alibi, are constitutionally valid only if the defendant is allowed reciprocal rights to receive the names of governmental rebuttal witnesses. The statutes in those decisions, unlike Rule 14(b)(3), involved the furnishing of prosecutors with both notice of, and information pertaining to, the intended defense. See subdivisions (b)(1) and (b)(2), supra. It was to this information gathering aspect of the Oregon and Florida statutes that the Supreme Court addressed itself:
It is fundamentally unfair to require the defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.
Wardius, supra at 476 (emphasis added).
Subdivision (b)(3) involves the giving only of notice. The defendant is not required to divulge the details of his intended defense. Mere notification of intent to raise a defense without more does not trigger considerations of reciprocity. See Gilday v. Commonwealth, 360 Mass. 170 (1971); Blaisdell v. Commonwealth, 372 Mass. 753 , 767 (1977).
The sanction for failure to comply with the requirement of subsection (b)(3) is drawn from Fed. R. Crim. P. 12.1 and 12.2. See also ABA Standards, supra, § 4.7. The court may "for cause shown" ease or lift the requirements of this subdivision.
Sanctions for noncompliance
Sanctions may be issued under this subdivision for violations of discovery obligations established either by the court's order or by the automatic discovery provisions of the rule. The automatic discovery obligations of subsections (a)(1)(A)(discovery to the defense) and (a)(1)(B)(discovery to the prosecution) stem from the rule itself rather than an order issued by the court, but subdivision (a)(1)(C) provides that they "have the force and effect of a court order, and failure to provide discovery pursuant to them may result in application of any sanctions permitted for non compliance with a court order under subdivision 14(c)."
The general sanction provision of subdivision (c)(1) is paralleled by Fed. R. Crim. P. 16(d)(2) and New Jersey R. Crim. P. 3:13 3(f). The power to exclude alibi evidence other than the defendant's testimony is recognized in Commonwealth v. Edgerly, 372 Mass. 337 , 342 (1977), and is express in subdivision (b)(1)(D), supra. See Federal Rule 12.1; ABA Standards Relating to Discovery and Procedure Before Trial § 4.7(a) (Approved Draft, 1970). Subdivision (b)(2)(B), supra, provides the sanction for failure of the defendant to comply with a court ordered psychiatric examination.
"Rights and duties are ephemeral indeed without remedies." ABA Standards, supra, comment at 107. Subdivision (c)(1) is intended to provide the general rule and is based on that assumption that the trial court is in the best situation to consider the opposing arguments concerning a failure to comply with a discovery order and to fashion an appropriate remedy. Remedies for non-compliance with discovery requirements could include a further order for discovery, a continuance, exclusion of certain testimony, or "such other order as [the Court] deems just under the circumstances." (c)(1). A continuance or in some cases a mistrial may be the proper remedy when delayed disclosure leaves the defendant unable to "make effective use of the evidence in preparing and presenting his case." See Commonwealth v. Baldwin, 385 Mass. 165 , 175 & n.10 (1982); Commonwealth v. St. Germain, 381 Mass. 256 , 262-63 (1980). (There is, it should be noted, a statutory limitation on the court's power to grant a continuance without the defendant's consent. When the defendant is in custody, General Laws c. 276, § 35 provides a thirty day limit in such instances.) A dismissal barring retrial may be required when a discovery violation has resulted in irremediable harm to the defendant's opportunity to obtain a fair trial.
Although the court may exercise its general sanction power under subdivision (c)(2) to exclude evidence, it is generally better to grant each party the freedom to present all relevant evidence at trial. However, in regard to alibi evidence, there is sufficient likelihood of abuse to require specifically empowering the court to exclude extrinsic alibi evidence other than the defendant's testimony, and this is specifically authorized by section (b)(1)(D). A court should only employ this sanction, however, when convinced that a failure to comply with an order was deliberate and prejudicial to the Commonwealth. Subdivision (c)(2) also provides that evidence concerning the defense of lack of criminal responsibility cannot be excluded except as provided by subdivision (b)(2).
Definition of "statement"
The definition of the term "statement" was initially drawn from 18 USC § 3500(e)(1)-(2) (1969, Supp. 1976) and Commonwealth v. Lewinski, 367 Mass. 889 , (1975). Definition (d)(1) defines "statements" which have been written by the percipient witness himself or herself. Definition (d)(2) defines "statements" which have been contemporaneously recorded by someone other than the speaker or writer.
The definition in (d)(1) was amended in 2004 to delete the requirement that writings by witnesses be signed or otherwise adopted by the author. In Commonwealth v. Lewinski, 367 Mass. 889 , 901-903 (1975), the Court stated that without any showing of particularized need, a defendant was entitled to all "prior written statements of prosecution witnesses which are available to the prosecution and are related to the subject," and subdivided this into three categories of mandatorily discoverable statements: "any statement made by the witness and in some definite way approved by him, a transcript of a contemporaneous verbatim or substantially verbatim stenographic or other recording of an oral statement by the witness, and a written report consisting of a statement by the witness." The 2004 revision reflects a decision that the definition of written statements made by a witness should encompass written statements of a percipient witness which have not been formally adopted by the witness, and the third category in Lewinsky, although not without ambiguity, implies as much. Under 14(d)(1), these will have been written by the percipient witness himself, and under 14(d)(2), such statements must still be "a substantially verbatim recital of an oral declaration and which is recorded contemporaneously with the making of the oral declaration" (emphasis added). In both cases, such evidence is generally relevant at trial; for example, one need not show a prior statement was adopted as accurate and complete by the writer in order to admit and demonstrate its inconsistencies. Prior informal statements, not intended for court, are not only often admissible at trial but often more probative than formal signed statements in anticipation of litigation. On this view, if the police have taken a statement of a witness who will testify, it should be discoverable to the defense.
However, the revised definition does not extend to "drafts or notes that have been incorporated into a subsequent draft or final report." It would be unnecessary and burdensome to require that every rough draft of a police report or other statement to be turned over in addition to the final one.
Subdivision (e), which formerly specified the time limits for discovery, was deleted as part of the 2004 revisions. In the amended rules, the deadlines for automatic, non motion discovery are detailed in Rule 14(a)(1)(a) and (b), and the deadlines for discovery (and other) motions are found in Rule 13(d).