Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

5.DISCOVERY

5.1. WHAT YOU ARE ENTITLED TO FROM THE DEFENSE

Rules 14 and 23 of the Rules of Criminal Procedure provide prosecutors with important, powerful discovery tools. For complaints and indictments issued on or after September 7, 2004, after the Commonwealth delivers all required discovery under Rule 14 (a)(1)(A) or by court order, and on or before the date agreed by the parties or ordered by the court, the defendant must automatically provide prosecutors with reciprocal discovery, including witness statements. Pursuant to Rule 23, upon motion, prior to putting a witness on the stand, prosecutors are entitled to request and receive from the defendant any statements pertaining to that witness. These two rules, and the overlap between them, entitle you to seek and receive witness statements that the defendant intends to use at trial to impeach your witnesses, before the witness testifies. Statements of Commonwealth witnesses, regardless of who has possession, are Rule 14 and/or Rule 23 statements and should be produced.

A summary of important discovery rules follows. A few sample discovery motions are provided in section 6. If you are familiar with the definitions and the parameters of both parties’ requirements, and you file motions, you can ensure you receive all that you are entitled to receive.

5.1.1.Rules Regarding Reciprocity and Notice Requirements

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  After the Commonwealth provides the defendant with its required discovery, and files a certificate of compliance, the defendant must provide automatic reciprocal discovery pursuant to Rule 14(a)(1)(B).
  

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  Pursuant to Rule 14(a)(1)(B) which applies to all complaints and indictments issued on or after September 7, 2004, following the Commonwealth’s delivery of all discovery under Rule 14(a)(1)(A) or by court order, and on or before the date agreed by the parties or ordered by the court, the defendant shall automatically disclose to the Commonwealth:
  

a) Intended expert opinion evidence (other than criminal responsibility, which should be requested for upon motion) including (for each expert) identity, current C.V. list of publications and all reports pertaining to the case);

b) Material and relevant investigators’ reports, photographs, tangible objects, all intended exhibits, reports of physical examination of any person or of scientific tests or experiments, and statements of persons that the defendant intends to call as witnesses;

c) All promises, rewards or inducements made to witnesses that the party intends to present at trial; and

c) Names, addresses, dates of birth and statements of persons the defendant intends to call as witnesses.

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  Upon motion, a judge may order a defendant to provide the Commonwealth with written statements of witnesses whom the Commonwealth intends to call at trial which are in the possession, custody or control of the defendant or his attorney, and the order is not limited to statements the defendant could use for impeachment. Commonwealth v. Durham, 446 Mass. 212 (2006); Rule 14(a)(2).
  

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  A defendant is not obliged to disclose an adverse report of a non-testifying expert: a defendant may not be compelled to produce witness statements or other material that he does not intend to use at trial. Commonwealth v. Haggerty, 400 Mass. 437, 441 (1987) (the phrase “intends to use at trial” is not limited to case-in-chief evidence, but includes cross-examination material of proposed witnesses.) See Commonwealth v. Durham, 446 Mass. 212 (2006).
  

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  A defendant cannot be compelled to disclose his statements to counsel or to counsel’s staff, or anything qualifying as attorney work product (i.e. legal research, opinions, theories, and conclusions). Rule 14(a)(5).
  

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  A defendant is required to provide the Commonwealth (upon motion) with notice of:
  

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  any intended alibi defense, including the specific places the defendant claims to have been at the time of the crime and the names of the alibi witnesses. See Commonwealth v. Edgerly, 372 Mass. 337 (1977); Rule 14 (b)(1)(A). (Note: With the 2004 changes to Rule 14, the Commonwealth is now required to file its list of counter-alibi witnesses 7 days after the defendant files notice of alibi. See Rule 14(b)(1)(B));
  
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  any defense of lack of criminal responsibility, the names and addresses of his expert witnesses, and whether his experts intend to rely on any of his own statements as to his mental condition or lack of criminal responsibility at the time of the crime. See Blaisdell v. Commonwealth, 372 Mass. 753, 767 (1977); Rule 14 (b)(2);
  
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  any defense based on license, claim of authority or ownership, or exemption, Rule 14(b)(3); and
  
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  prior to trial, any intention to offer evidence regarding prior sexual conduct of the alleged victim; such evidence may be excluded at trial if a defendant willfully ignores the notice provision. See Michigan v. Lucas, 500 U.S. 145, 152-53 (1991).
  

5.1.2.File the Certificate of Compliance

After you have provided the defendant with all required discovery (discussed further below) (except expert reports) you must file a certificate of compliance pursuant to Rule 14 (a)(3). The certificate must identify what has been provided.

After you file the certificate of compliance:

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   Move for additional discovery that is not automatic under the rule (e.g. alibi);
   
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   Ask for specific date for D’s compliance with discovery; and
   
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   Argue that you need discovery from D before any hearing on evidentiary motions.
   

Samples of these motions, as well as a sample Certificate of Compliance, are provided in the Motions Section, section 6, infra.