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

5.3. POTENTIALLY CONTESTED DISCOVERY ISSUES

5.3.1. Lost or Destroyed Evidence

Exculpatory evidence, and evidence a defendant has specifically asked to inspect, must be preserved. Commonwealth v. Neal, 392 Mass. 1, 10-13 (1984). However, the Commonwealth is not required to gather every conceivable piece of evidence that might benefit the defendant. Id. at 8. When potentially exculpatory evidence is lost or destroyed, the defendant must “ ... establish a reasonable probability, based on concrete evidence rather than a fertile imagination, that access to the (material) would have produced evidence favorable to his cause.” Commonwealth v. Gomes, 403 Mass. 258, 276-77 (1988). The Commonwealth’s failure to preserve potentially useful evidence will be subjected to a balancing test “ ... to determine the appropriateness and extent of remedial action. The courts must weigh the culpability of the Commonwealth, the materiality of the evidence and the potential prejudice to the defendant ... Our test does not require the Commonwealth to prove good faith or earnest efforts to preserve evidence.” Commonwealth v. Willie, 400 Mass. 427, 432 (1987).

However, the defendant does not have to show bad faith on the part of the Commonwealth to obtain dismissal of an indictment. Commonwealth v. Henderson, 411 Mass. 309, 311-12 (1991). The federal rule with respect to lost or destroyed exculpatory evidence is less stringent for the prosecution: “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law”, Arizona v. Youngblood, 488 U.S. 51, 58 (1988). But “[t]he rule under the due process provisions of the Massachusetts Constitution is stricter [for the prosecution] than that stated in the Youngblood opinion.” Commonwealth v. Henderson, 411 Mass. at 311.
Rape defendants may try to build a defense around the fact that DNA testing was not conducted, despite the fact that, given the time and expense involved, such tests are not conducted in all cases. However, defendants may not assert that the failure to perform the test amounted to a violation of due process, or more specifically, a violation of the duty to provide exculpatory information: “the failure to conduct ... tests does not constitute suppression of evidence in violation of due process within the doctrine of Brady v. Maryland.” Commonwealth v. Richenburg, 401 Mass. 663, 669 (1988). The defendant may question and comment on the Commonwealth’s failure to perform a specific test; but the Commonwealth must be permitted on redirect examination to elicit the reasons why a particular test was not performed. Commonwealth v. Flanagan, 20 Mass. App. Ct. 472, 476 n.2 (1985). Before such an inquiry, the prosecutor should request a sidebar conference to alert the judge to the proposed line of questioning and, if necessary, the specific questions to be asked and their expected responses. Commonwealth v. Lodge, 431 Mass. 461, 468 (2000).

5.3.2. Notes of Interviews

Defense counsel may attempt to compel you to produce notes you and/or your investigators took during interviews, particularly interviews of the victim. However, unless they are verbatim (making them statements, see supra), or contain otherwise unavailable exculpatory information, notes taken of a witness’s statements are not discoverable as a matter of right. See Commonwealth v. Borans, 379 Mass. 117, 151-54 (1979).

The Supreme Judicial Court has ruled that notes of victim witness advocates are subject to the same discovery rules as the notes of prosecutors. Commonwealth v. Bing Sial Liang, 434 Mass. 131 (2001). Thus, exculpatory information within an advocate’s notes must be disclosed, and prosecutors are responsible for asking advocates about their conversations with victims or witnesses, reviewing the advocates’ notes, and disclosing any exculpatory evidence therein. Id. Statements of a victim or witness, as defined in Mass. R. Crim. P. 14(d) (writings by or recordings of the witness), must also be disclosed from advocates’ notes. Id. “But in all other respects, the notes are protected as work product pursuant to Mass. R. Crim. P. 14(a)(5).” Id. Because advocates “perform as part of the prosecution team, the work of advocates is subject to the same legal discovery obligations as that of prosecutors and their notes are subject to the same discovery rules.” Id.

5.3.3. “Prior False Allegations:” Bohannon

SEE SAMPLE MOTION, SECTION 6.
In general, evidence of prior false accusations by a witness is excluded under the rule that evidence of prior bad acts may not be used to impeach a witness’s credibility. Miller v. Curtis, 158 Mass. 127 (1893). However, in Commonwealth v. Bohannon, 376 Mass. 90 (1978), the court held that in certain, special circumstances, a defendant accused of rape is entitled to place before the jury evidence of prior false accusations of rape made by the victim. The special circumstances in Bohannon included: “the witness was the victim in the case on trial, her consent was the central issue, she was the only Commonwealth witness on that issue, her testimony was inconsistent and confused, and there was a basis in independent third-party records for concluding that the prior accusations of the same type of crime had been made and were false.” Commonwealth v. Sperazza, 379 Mass. 166, 169 (1979).
A complainant’s prior false accusations of sexual assault may fall outside the protections of the rape shield statute as they do not involve evidence of past sexual behavior, but rather evidence of the witness’s behavior in either falsely accusing someone or threatening an accusation as part of a plan or design. “False accusations do not attack the witness for lifestyle but for an ability, readiness, or proclivity to lie and fabricate.” Commonwealth v. Nichols, 37 Mass. App. Ct. 332, 336 (1994). However, as impeachment, this type of evidence must be handled cautiously; it should not be admitted unless independent third-party evidence warrants a finding that the prior allegation was in fact false. See Commonwealth v. McDonough, 400 Mass. 639, 648-51 (1987).
In Commonwealth v. Blair, 21 Mass. App. Ct. 625 (1986), the court held the judge did not err in excluding proffered evidence of alleged prior false accusations of sexual misconduct where the defendants failed to show a factual basis from independent third-party records and failed to show that the complainant was the source of any prior false accusation. In Commonwealth v. Doe, 8 Mass. App. Ct. 297, 302 (1979), the defendant’s presentation “fell short of suggesting a pattern of similar accusations ... [unlike] the offer of proof in the Bohannon case.”
Prior accusations of rape, in a pattern similar to that shown in Bohannon and fitting the special circumstances set forth in Bohannon, may constitute exculpatory evidence pursuant to Brady. However, beware of defense discovery motions which purport to be seeking Bohannon-type evidence, but in fact are larger scale fishing expeditions for privileged information (see the discussion on the rape shield statute, infra). The Bohannon exception “is a narrow one ...

and is applicable only in ‘unusual fact situations where justice demands.’” Commonwealth v. Hicks, 23 Mass. App. Ct. 487, 489 (1987). If there is no independent evidence that such prior allegations were false, they are irrelevant and therefore inadmissible. Commonwealth. v. Sherry, 386 Mass. 682, 691-92 (1982).

5.3.4. Victim’s Sexual Conduct (Rape Shield Law)

SEE SAMPLE MOTION, SECTION 6.

What is the Rape Shield Statute?

The “Rape Shield Statute” Mass. Gen. Laws ch. 233, § 21B (created in 1977 and amended in 1983), precludes evidence of the reputation of a victim’s sexual conduct in sexual assault cases and limits the use of evidence of specific instances of sexual conduct, allowing only that which relates to the defendant or to a condition of the victim which, after an in camera hearing held subsequent to a written motion, is found sufficiently relevant. (“If after said hearing, the court finds that the weight and relevancy of said evidence is sufficient to outweigh its prejudicial effect to the victim, the evidence shall be admitted; otherwise not.”)

What is the intent of the statute?

“The rape shield statute is principally designed to prevent defense counsel from eliciting evidence of the victim’s promiscuity as part of a general credibility attack.” Commonwealth v. Fitzgerald, 412 Mass. 516, 523 (1992); see also Commonwealth v. Sa, 58 Mass. App. Ct. 420 (2003) (evidence that a victim engaged in consensual sexual intercourse with her boyfriend within hours of being raped is not relevant to the victim’s credibility).

To which sexual assault crimes does the statute apply?

ch. 265, §§ 13B (Indecent A&B on child)

13F (Indecent A&B on a mentally retarded person)

13 H (Indecent A&B)

22 (Rape)

22A (Rape of child with force)

23 (Rape and abuse of child)

24 (Assault with intent to rape)

24B (Assault with intent to rape child)
To whom do the protections apply?

The statute applies to victims of forcible rape and indecent assault and battery (thus, by definition, both men and women), but does not apply to victims of unnatural and lascivious acts. Commonwealth v. Ruffen, 399 Mass. 811, 816 (1987). The statute applies to children as well as to adults. Commonwealth v. Frey, 390 Mass. 245, 252 (1983).

What are the express prohibitions of the statute?

In any proceeding, specific instances of prior sexual conduct and reputation for promiscuity are inadmissible, with two exceptions:

1. 
   evidence of an adult victim’s prior consensual sexual activity with the defendant; and
   
2. 
   evidence explaining “any physical feature, characteristic, or condition of the victim,” if the weight and relevance outweigh the prejudicial effect on the victim.
   

Examples of the victim’s condition include the origin of semen samples found in the victim, sexually transmitted diseases, pregnancy, trauma or injury.

The defendant must file a written motion, and provide an in camera offer of proof to the court. Make sure that the defendant has complied with the written notice requirements: a court may exclude evidence otherwise admissible under the statute if the defendant doesn’t comply. See Commonwealth v. Gauthier, 32 Mass. App. Ct. 130, 133 (1992) (the omission of written notice is not to be treated as a “trifling” matter).

When do the statute’s prohibitions yield to the defendant’s constitutional rights?

If the defendant can show that a victim’s prior sexual conduct is relevant to

(1) bias,

(2) a motive to lie, or

(3) misidentification,

then the “… general evidentiary rule of exclusion must give way to the constitutionally based right of effective cross-examination,” Commonwealth v. Joyce, 382 Mass. 222, 228 (1981), because the “basic constitutional right of a defendant to present a full defense” prevails, Comm. v. Thevenin, 33 Mass. App. Ct. 588, 592 (1992).

(1) Bias/Motive to Lie:

If prior sexual conduct of the victim is “relevant to a showing of bias or motive to lie, the general evidentiary rule of exclusion must give way to the constitutionally based right of effective cross-examination.” Commonwealth v. Joyce, 382 Mass. 222, 228 (1981). Be prepared to distinguish the facts of your cases from cases such as the following, where evidence was allowed:

• 
  victim might have lied to deflect questions from her mother about her pregnancy, Commonwealth v. Pearce, 43 Mass. App. Ct. 78, 87 (1997), rev’d on other grounds, 427 Mass. 642 (1998);
  
• 
  victim with record of prostitution may have claimed rape as way to avoid prosecution, Commonwealth v. Joyce, 382 Mass. 222, 228 (1981);
  
• 
  victim’s interest in preserving a romantic relationship with another might have provided a motive to claim rape, Commonwealth v. Fetzer, 19 Mass. App. Ct. 1024, 1025 (1985);
  
• 
  victim might have feared angry reaction by mother and boyfriend after lying about her whereabouts, Commonwealth v. Heath, 24 Mass. App. Ct. 437, 441-47 (1987);
  
• 
  victim’s fear of abusive boyfriend may have caused her to claim rape, Commonwealth v. Kowalski, 33 Mass. App. Ct. 49, 52 (1992);
  
• 
  victim’s fear of disapproving parents may have caused her to claim rape, Commonwealth v. Stockhammer, 409 Mass. 867 (1991);
  
• 
  victim’s prior rape in similar circumstances may have caused this mentally troubled victim to be unable to distinguish consensual sex from rape, Comm. v. Baxter, 36 Mass. App. Ct. 45 (1994). Baxter is limited to its “particular facts”: where there is no similarity between the alleged act and prior acts of abuse, and where there is no showing of a debilitating psychiatric injury, defendant was properly barred from cross-examining the victim on the prior abuse. Commonwealth v. Syrafos, 38 Mass. App. Ct. 211, 218-19 (1995).
  

In addition to distinguishing the facts of your case from cases such as the above examples, the following cases upholding exclusion may be helpful:

• 
  OK to exclude victim’s three month-old offer of prostitution as too remote to support inference of consent, Commonwealth v. Vieira, 401 Mass. 828 (1988);
  
• 
  prior kissing/flirtatious behavior with defendant not probative of consent, Commonwealth v. Fionda, 33 Mass. App. Ct. 316, 322-23 (1992);
  
• 
  victim was not shown to have been in a position where she would have to justify sexual activity to a third person, Commonweatlh v. Shaw, 29 Mass. App. Ct. 39, 43 (1990).
  

(2) Misidentification:

• 
  Defendant wanted to introduce a foreign pubic hair found in the victim’s genital area, to show that another not he, had attacked the victim, Commonwealth v. Cardoza, 29 Mass. App. Ct. 645 (1990);
  
• 
  victim’s recent sexual history would support defendant’s argument of misidentification, Commonwealth v Fitzgerald, 412 Mass. 516 (1992).
  

(3) Prior False Allegations:

• 
  The rape-shield law does not prohibit an attack on the victim’s credibility through evidence of prior, false allegations of having been sexually attacked where the requirements of Bohannon are met. See section 5.3.3, supra.
  

In 2005, the Supreme Judicial court reconciled the competing interests of ch. 233, §21 and the rape shield statute, ch. 233, § 21B, and held in Commonwealth v. Harris, 433 Mass. 714 (2005), that a trial judge has the discretion in a rape case to admit evidence that the complaining witness had previously been convicted as a "common nightwalker," but the exercise of that discretion must take into consideration the objectives of the rape shield statute.

In carving out this “extremely narrow exception” to the rape-shield statute, the Court held that where:

• 
  the sexual conduct in question has led to a criminal conviction;
  
• 
  the conviction meets all the technical prerequisites of § 21; and
  
• 
  the judge is satisfied that the probative value of the conviction
  

for purposes of impeaching the complainant outweighs the prejudice to the Commonwealth and the complainant,

the prior conviction may be admissible for impeachment purposes. Keep in mind, however, that under the Court’s ruling, “neither the facts surrounding their sexual conduct nor their reputation in such matters is admissible, and, even if a complainant’s prior conviction of prostitution satisfies all the technical prerequisites of § 21, the judge must consider the policies to be promoted by the rape shield statute and may exclude the conviction due to those policy considerations.” Id.