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

5.4. ACCESS TO PRIVILEGED RECORDS AND COMMUNICATIONS

5.4.1. Spousal Privilege

Mass. Gen. Laws ch. 233, § 20, clause two states: “Except as otherwise provided in section seven of chapter 273 and except in any proceeding relating to child abuse, including incest, neither husband nor wife shall be compelled to testify in the trial of an indictment, complaint or other criminal proceeding against the other.” This statute privileges a witness-spouse from testifying against the other spouse in a criminal trial only; it does not apply to a spouse summonsed to appear before a grand jury. In the Matter of a Grand Jury Subpoena, 447 Mass. 88 (2006). Only the witness-spouse may claim the privilege. The witness-spouse may waive her privilege and testify. Commonwealth v. Saltzman, 258 Mass. 109, 154 (1927). However, if a spouse testifies in the grand jury, it does not constitute a waiver of the privilege at trial. In the Matter of a Grand Jury Subpoena, 447 Mass. 88 (2006).

5.4.2. Spousal Disqualification (Private Conversations)

Mass. Gen. Laws ch. 233, § 20, clause one disqualifies husbands and wives from testifying to private conversations with each other (including grand jury proceedings), with the following exceptions:

1. 
   “a contract made by a married woman with her husband”;
   
2. 
   “a proceeding under M.G.L. c. 209D” (the Uniform Interstate Family Support Act);
   
3. 
   “a prosecution begun under M.G.L. c. 273, §§ 1-10, inclusive” (Desertion and Non-Support);
   
4. 
   “any criminal proceeding in which one spouse is a defendant alleged to have committed”
   

• 
  “a crime against the other spouse”
  
• 
  or to have violated a restraining order
  

(“a temporary or permanent vacate, restraining, or no-contact order or judgment issued pursuant to M.G.L. c. 208, §§ 18, 34B or 34C, M.G.L. c. 209, § 32, M.G.L. c. 209A, §§§§§ 3, 3B, 3C, 4, or 5, or M.G.L. c. 209C, §§ 15 or 20 or a similar protection order issued by another jurisdiction, obtained by the other spouse”)

(these domestic violence/restraining order exceptions were added by an amendment effective Nov. 7, 1996);

5. 
   “a proceeding involving abuse of a person under the age of eighteen, including incest”
   

(this exception was also added by the amendment, effective Nov. 7, 1996).

• 
  Thus, for purposes of sexual assault and domestic violence prosecutions, where one spouse is a defendant, and the victim is either the other spouse or a child under 18, the spousal disqualification no longer exists.
  

However, in the event that you have a case which precedes the date of the amendment, or a case in which the victim is neither the spouse nor a child under 18 (e.g., defendant is charged with raping adult neighbor, and you seek to introduce a relevant conversation between the defendant and his spouse), or if two witnesses related by marriage, neither being the defendant, held a “private” conversation which you seek to introduce at trial, or if for some other reason you desire to understand the disqualification as it still applies to other examples of criminal and civil cases not covered by the exceptions, the parameters are as follows (in brief):

• 
  The disqualification applies only to persons validly married; conversations before marriage are not included. Commonwealth v. Barronian, 235 Mass. 364 (1920) (the spousal disqualification depends upon the existence of the marriage at the time of the communication; the spousal privilege depends on the existence of the marriage relationship at the time of trial).
  

• 
  The disqualification covers the contents of the conversation, not its existence. (So a spouse may be asked whether he had a conversation and whether, as a result, he took certain actions.) Sampson v. Sampson, 223 Mass. 451, 458 (1916).
  

• 
  Written communications, Commonwealth v. Caponi, 155 Mass. 534 (1892), exclamations of pain, Commonwealth v. Jardine, 143 Mass. 567 (1887), mere abusive language that is not conveying information, French v. French, 80 Mass. 186 (1859), or abusive, threatening words, Commonwealth v. Gillis, 358 Mass. 215 (1970), are not within the disqualification.
  

• 
  If a third party hears part of the conversation, it is no longer “private,” and the disqualification no longer applies. Commonwealth v. O’Brien, 377 Mass. 772 (1979). Whether conversations held near other people were private depends on the proximity of other people, whether they are within earshot, whether they are just passing by, etc. Whether conversations held in front of children were private depends on the age of the children, their ability to understand, etc. Freeman v. Freeman, 238 Mass. 150 (1916).
  

• 
  The subject matter need not be confidential to be disqualified. Business conversations are included. Commonwealth v. Hayes, 145 Mass. 289 (1887).
  

• 
  The disqualification forbids both spouses from testifying. (The spousal privilege excuses only the nonparty spouse from testifying.)
  

• 
  Excluding the exceptions, the disqualification applies in all actions, whether or not one of the spouses is a party. (The spousal privilege only applies where a spouse is a criminal defendant.)
  

5.4.3. Professional Privileges

Various types of confidential communications are protected, to various degrees, by statute. Brief summaries of these statutory privileges are presented here. Defendants’ efforts to overcome the statutory privileges, and the ensuing line of Bishop-Fuller cases, are discussed in section 5.4.4, infra.

• 
  Domestic Violence Counselor-Victim Privilege
  

Mass. Gen. Laws ch. 233, § 20K: “In criminal actions such confidential communication shall be subject to discovery and shall be admissible as evidence but only to the extent of information contained therein which is exculpatory in relation to the defendant; provided, however, that the court shall first examine such confidential communication and shall determine whether or not such exculpatory information is therein contained before allowing such discovery or the introduction of such evidence.”
“Confidential Communications” are defined as:

• 
  information transmitted in confidence
  
• 
  by and between a victim and a domestic violence counselor
  
• 
  by a means which does not disclose the information to others (other than to a person present for the benefit of the victim, or as reasonably necessary to counseling and assisting the victim)
  
• 
  including all information arising out of the counseling (including reports, records, working papers, memoranda).
  

“Domestic violence victims’ counselor” is defined as:

• 
  a person who is employed or volunteers in a domestic violence program
  
• 
  who has undergone a minimum of twenty-five hours of training and reports to a supervisor
  
• 
  whose primary purpose is the rendering of advice, counseling or assistance to victims of abuse.
  

(Definitions for “Abuse,” “Victim,” and “Domestic violence victims’ program” are also provided in the statute.)

• 
  Mental Health Worker Privilege
  

Mass. Gen. Laws ch. 112, § 172: Any communication between an allied mental health or human services professional and a client shall be deemed to be confidential. Said privilege shall be subject to waiver only if:

1. 
   the professional is a defendant in a civil, criminal or disciplinary action arising from the practice;
   
2. 
   the client is a defendant in a criminal proceeding and the privilege would violate his right to present his case;
   
3. 
   the communication reveals the contemplation or commission of a crime or a harmful act; or
   
4. 
   the client(s) agree(s) to the waiver.
   

• 
  Out-of-Court Physician-Patient Privilege
  

Alberts v. Devine, 395 Mass. 59 (1975): Unless faced with a serious danger to the patient or to others, a physician owes a patient a duty not to disclose without the patient’s consent medical information about the patient gained in the course of the professional relationship, and the violation of that duty gives rise to a civil action for whatever damages flow there from. A civil action will lie against anyone who, with the requisite state of mind, induces a violation of the physician’s duty of confidentiality and thereby causes injury or loss to the patient, Id. at 67-68:
The principle that society is entitled to every person’s evidence in order that the truth may be discovered may require a physician to testify in court about information obtained from a patient in the course of treatment. However, that principle has no application to disclosures made out of court. … the Legislature has demonstrated its recognition of a policy favoring confidentiality of medical facts by enacting G.L. c. 111, ss70 and 70E, to limit the availability of hospital records. Furthermore, G.L. c. 233, s20B creates an evidentiary privilege as to confidential communications between a psychotherapist and a patient. The fact that no such statutory privilege obtains with respect to physicians generally and their patients … does not dissuade us from declaring that in this Commonwealth all physicians owe their patients a duty, for violation of which the law provides a remedy, not to disclose without the patient’s consent medical information about the patient, except to meet a serious danger to the patient or others.”

• 
  Priest-Penitent Privilege
  

Mass. Gen. Laws ch. 233, § 20A: “A priest, rabbi or ordained or licensed minister of any church or an accredited Christian Science practitioner shall not, without the consent of the person making the confession, be allowed to disclose a confession … [nor] … testify as to any communication made to him by any person in seeking religious or spiritual advice or comfort, or to his advice given ... without the consent of such person.” The priest-penitent privilege is an “absolute” privilege and not a “qualified” one. Ryan v. Ryan, 419 Mass. 86, 95-96 (1994).

• 
  Psychologist- Patient Privilege
  

Mass. Gen. Laws ch. 112, § 129A: “All communications between a licensed psychologist and the individuals with whom the psychologist engages in the practice of psychology are confidential. ... except ...

(a) pursuant to ch. 233, § 20B or any other law

(ch. 233, § 20B: disclosure O.K. if: (a) psychotherapist determines need of hospitalization/treatment and discloses for placement purposes;(b) judge finds patient has made communications during court ordered exam, after being told they would not be privileged -- may be used on issues involving mental or emotional condition but no as a confession or admission of guilt; (c) where mental or emotional condition is element of claim or defense and disclosure more important to the interests of justice; (d) after death of the patient, if in interest of justice; (e) if in child custody case, would bear significantly on the patient’s ability to provide suitable custody; (f) in any proceeding brought against the psychotherapist);

(b) upon express, written consent of the patient; or

(c) upon the need to disclose information which protects the rights and safety of others, if

(1) patient presents a clear and present danger to himself,

(2) patient has communicated explicit threat to kill or seriously injure and has the apparent intent and ability to do so,

(3) psychologist has reasonable basis to believe there is a clear and present danger the patient will attempt to kill or inflict serious bodily injury.

• 
  Psychotherapist-Patient Privilege
  

Mass. Gen. Laws ch. 233, § 20B: “[A] patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient’s mental or emotional condition.” If the patient is incompetent, a guardian shall be appointed.
There are six exceptions to the privilege, set forth in the statute, and summarized here:

1. 
   the patient is a threat to himself or others;
   
2. 
   the patient was informed that his communications would not be privileged in the context of a court-ordered examination (“[t]he communications shall be admissible only on issues involving the patient’s mental or emotional condition but not as a confession or admission of guilt,” M.G.L. c. 233, s. 20B(b));
   
3. 
   the patient introduces his mental or emotional condition as an element of his claim or defense;
   
4. 
   the patient is dead, and his mental or emotional condition is an issue in a claim;
   
5. 
   child custody cases; or
   
6. 
   criminal, civil, or administrative proceedings against the psychotherapist
   

• 
  Sexual Assault Counselor-Victim Privilege
  

Mass. Gen. Laws ch. 233, § 20J: “A sexual assault counselor shall not disclose such confidential communication, without the prior written consent of the victim; provided, however, that nothing in this chapter shall be construed to limit the defendant’s right of cross-examination of such counselor in a civil or criminal proceeding if such counselor testifies with such written consent.”
“Such confidential communications shall not be subject to discovery and shall be inadmissible in any criminal or civil proceeding without the prior written consent of the victim to whom the report, record, working paper or memorandum relates.”
“Sexual assault counselor” is defined as:

• 
  a person who is employed or volunteers at a rape crisis center
  
• 
  has undergone 35 hours of training and reports to a supervisor (the supervisor being a licensed social worker, nurse, psychiatrist, psychologist or psychotherapist)
  
• 
  whose primary purpose is the rendering of advice, counseling or assistance to victims of sexual assault.
  

“Confidential communication” is defined as:

• 
  information transmitted in confidence
  
• 
  between a sexual assault victim and a sexual assault counselor
  
• 
  by a means which does not disclose the information to others (other than a person present for the benefit of the victim or to whom disclosure is necessary for the victim’s counseling)
  
• 
  including all information received by the sexual assault counselor, including reports, records, working papers, or memoranda.
  

(“Rape crisis center” and “victim” are also defined.)

• 
  Social Worker-Client Privilege
  

Mass. Gen. Laws ch. 112, § 135B: Communications privileged by statute. In any court proceeding, a client has the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication between him/her and a licensed social worker or a government social worker, concerning the diagnosis or treatment of the client’s mental or emotional condition. Eight exceptions:

1. 
   Disclosure for the purpose of placing or retaining the client in a hospital for mental or emotional illness;
   
2. 
   Court-ordered psychiatric examination, before which the client is informed the communication would not be privileged;
   
3. 
   In any proceeding except child custody or adoption, client introduces his mental or emotional condition as an element of a claim or a defense, and judge finds disclosure more important to the interests of justice than not disclosing;
   
4. 
   In any proceeding after client’s death, mental or emotional condition is introduced by any party in claim or defense, and judge finds disclosure more important to the interests of justice than not disclosing;
   
5. 
   To give testimony in a proceeding connected with Mass. Gen. Laws ch. 119, §§ 23C or 24, or Mass. Gen. Laws ch. 210, § 3;
   
6. 
   If the social worker acquired the information investigating a ch. 119, § 51B report;
   
7. 
   In any other case, where after a hearing the judge determines that the social worker has evidence bearing significantly on the client’s ability to provide suitable care or custody, and disclosure is more important to the welfare of the child than the importance of not disclosing; or
   
8. 
   In any proceeding brought by the client against the social worker and in any malpractice, criminal or license revocation proceeding in which disclosure is necessary or relevant to the claim or defense of the social worker.
   

Mass. Gen. Laws ch. 112, § 135A: A general confidentiality law. A social worker is precluded from disclosing “any information he may have acquired from persons consulting him in his professional capacity” except by written consent, or where the communication “reveals the contemplation or commission of a crime or harmful act” (to the client himself or to others), or where the client brings charges against the social worker.

5.4.4.Judicial Clarification of the Statutory Confidential Communication Privileges

5.4.4.1. The Past: A Brief History of the Bishop - Fuller Process

Even “absolute” statutory privileges which are not constitutionally based, such as the sexual assault counseling privilege, may be outweighed by a defendant’s constitutional rights to confrontation and fair trial.

The court’s attempts to clarify the circumstances in which a defendant may gain access to privileged records was set forth in a line of cases known as the Bishop-Fuller process. This process proved to be a difficult one to navigate by all parties involved.
After Com­mon­wealth v. Fuller, 423 Mass. 216 (1996), and Commonwealth v. Bishop, 416 Mass. 169 (1993), were decided, the SJC took Commonwealth v. Dwyer, SJC No. 9563 on direct appellate review and solicited amicus briefs on the issue of whether the Bishop protocol should be revised. Among the materials it reviewed were protocols developed by the committee formed as announced in Commonwealth v. Pelosi, 441 Mass. 257, 259 n.1 (2004). In cases including Pelosi, 441 Mass. at 259, Commonwealth v. Sheehan, 435 Mass. 183 (2001), and Com­monwealth v. Oliveira, 438 Mass. 325 (2002), the SJC has re­vealed con­sider­able dis­agree­ment among the justices about the efficacy of the Bi­shop protocol.
After extensive review, on December 29, 2006, the SJC issued its ruling in Commonwealth v. Dwyer, 2006 Mass. LEXIS 771, and announced a new protocol governing requests by defendants to inspect statutorily privileged records that are in the possession of a third party. This new protocol replaces the Bishop-Fuller protocol, and applies prospectively to all criminal cases.

5.4.4.2.The Present: Bishop-Fuller Replaced with the Dwyer Protocol

In Dwyer, The defendant was charged with rape of a child and filed a motion to review the victim’s therapy records. The motion was denied and the defendant appealed, specifically challenging the Bishop-Fuller protocol. After extensive review, the SJC granted the defendant a new trial and issued the following new protocol which is designed to provide “a reasonable opportunity for defense counsel to inspect pretrial presumptively privileged records produced by a third party, subject to a stringent protective order.” As a result of this decision, the only case that remains highly relevant of the Bishop line of cases is Commonwealth v. Lampron, 441 Mass. 265 (2004). Also, Commonwealth v. Mitchell, 444 Mass. 786 (2005) will apply in the very limited circumstance under which defense counsel may begin the Dywer process ex parte. The following summarizes the protocol.

The Dwyer Protocol
Step 1. The Defendant’s Filing, and the Commonwealth’s Service, of a Motion Pursuant to Rule 17(a)(2) and Lampron:

• 
  The defendant who seeks documentary evidence and/or objects held by a third party files a motion and affidavit as required by Rule 13(a)(2). The affidavit does not need to contain first hand knowledge, but may rely on hearsay so long as the affidavit identifies the source of the hearsay, the hearsay is reliable, and the affidavit “establishes with specificity the relevance of the requested documents.” Lampron, at 271.
  

• 
  The motion must identify:
  
  • 
    the name and address of the custodian of the records;
    
  • 
    the name, if any, of the person who is the subject of the records; and
    
  • 
    as precisely as possible, the records sought.
    

• 
  The Commonwealth forwards copies of the motion and affidavit to the record holder and (where applicable) to the third-party subject, notifies them of the date and place of the (Lampron) hearing on the motion, and also informs them that:
  
  • 
    the hearing shall proceed regardless of their presence;
    
  • 
    the hearing shall be the third-party subject’s only opportunity to address the court;
    
  • 
    any statutory privilege shall remain in effect unless and until the third-party subject affirmatively waives it; and
    
  • 
    if the third-party subject is the victim, s/he has the opportunity to confer with the prosecutor prior to the hearing.
    

Note that the defense may attempt to file an ex parte Lampron proffer pursuant to Commonwealth v. Mit­chell, 444 Mass. 786, 793-797 (2005). Under Mitchell, the defense must show a reasonable likelihood that disclosure of its Lampron proffer would violate the defen­dant’s Fifth Amendment rights or lead to destruction/alteration of the documents. As stated in Mitchell, this process should only be used in “rare, exceptional circumstances.” Id. You may be able to argue that the test set forth in Mitchell has not been met. The defense is not entitled to make its Lampron proffer just because it doesn’t want the Commonwealth to know the theory of defense or trial strategy.

Step 2. The Lampron hearing and findings:

• 
  At the hearing, the court must determine whether the moving party made a showing that:
  
  • 
    the documents are relevant and have evidentiary value;
    
  • 
    the documents cannot otherwise be reasonably procured in advance of trial;
    
  • 
    the defendant cannot properly prepare for trial without production and inspection in advance of trial, and the failure to obtain such inspection may unreasonably delay the trial; and
    
  • 
    the request is made in good faith and is not intended as a “fishing expedition.”
    

• 
  The judge shall make oral or written findings as to whether:
  
  • 
    the defendant has satisfied the requirements of Rule 17(a)(2), as explained in Lampron; and
    

• 
  the records sought are presumptively privileged. Presumptively
  

privileged records are records prepared in circumstances

suggesting that some or all of the records are likely protected by a statutory privilege.

• 
  Note that neither the custodian of the records nor the third-party subject need be present, nor shall the third-party subject be required to assert any statutory privilege. Dwyer specifies that all records likely to be covered by a statutory privilege are presumptively privileged unless and until the privilege holder actually waives the privilege. There is no requirement at this stage that a judge determine that the summonsed records are in fact privileged.
  

• 
  Prosecutors should be prepared to argue that the records sought are overly broad, and must be described with more specificity, as noted in Dwyer. Also, there is good language in Dwyer that makes it clear that Rule 17 is not to be used for either fishing expeditions or intimidation, nor is it a discovery tool. See also Commonwealth v. Lam, 444 Mass. 224 (2005) (recognizing the Commonwealth’s interest in ensuring that Rule 17(a)(2) is not used as a discovery tool).
  

Step 3. Summons and Notice to Record Holder and Inspection of the Records:

• 
  If the judge finds that the records are not presumptively privileged, or the
  

third-party subject has waived the privilege, a summons shall issue directing the record holder to produce the records to the clerk on the return date.

• 
  The clerk shall maintain the records separately from the court file, and make them available for inspection by defense counsel.
  
• 
  The Commonwealth’s ability to inspect or copy the records is within a judge’s discretion. However, the Commonwealth may inspect or copy any records if consent is given by the record-holder or third-party subject. Also, a defendant may have discovery production obligations under Rule 14.
  

• 
  If part or all of the records sought are presumptively privileged, the summons
  

shall require the records holder to produce the records to the clerk in a sealed

container marked “PRIVILEGED,” with the name of the record holder, the case name and docket number, and the return date specified in the summons.

• 
  The clerk shall maintain the records separately from the court file with the clear designation “presumptively privileged records.”
  
• 
  These records may be inspected only by defense counsel, who must sign and file a protective order in a form approved by the SJC. This order must specify that any violation of its terms shall be reported to the Board of Bar Overseers by anyone aware of the violation.
  
• 
  The records shall not be available for public inspection unless and until the defendant seeks to introduce the records in evidence at trial, by motion in limine, at or before any final pretrial conference, where the Commonwealth would have the opportunity to review the records and respond to the motion.
  
• 
  Disclosure of the contents to the defendant or any other person shall be permitted if, and only if, a judge allows a motion for a specific, need-based written modification of the protective order.
  

Step 4. Challenge to Privilege Designation:

• 
  If, on inspection of the records, defense counsel believes they are not privileged,
  

then in lieu of or in addition to a motion to disclose or introduce at trial, counsel

may file a motion to release the records (or portions thereof) from the strictures of

the protective order.

• 
  Counsel shall provide notice of the motion to all parties.
  
• 
  Prior to the hearing, the Commonwealth may review the records, subject to the same protective order discussed above.
  

• 
  If a judge determines that the records are not privileged, they shall be released
  

from the terms of the protective order and may be inspected and copied in the

manner provided for non presumptively privileged records.

Step 5. Disclosure of Presumptively Privileged Records:

• 
  If defense counsel believes that copying or disclosure of presumptively privileged
  

materials to other persons is necessary to prepare for trial, s/he shall file a motion

to modify the protective order to permit disclosure to specifically named

individuals.

• 
  The motion shall be accompanied by an affidavit explaining with specificity
  

the reason why disclosure is necessary;

• 
  the motion and the affidavit shall not disclose the content of any record; and
  
• 
  counsel shall provide notice of the motion to all parties.
  
• 
  After a hearing, and an in camera inspection of the records by the judge where
  

necessary, a judge may allow the motion only on making oral or written findings

that the copying or disclosure is necessary for the defendant to prepare for trial.

• 
  The judge shall consider alternatives to full disclosure, including stipulations
  

or disclosure of redacted portions of the records.

• 
  Before disclosure is made to any person specifically authorized by the judge,
  

that person shall sign a copy of the court order authorizing disclosure.

• 
  The court order must clearly state that a violation of its terms shall be
  

punishable as criminal contempt.

• 
  All copies of any documents covered by a protective order shall be
  

returned to the court upon resolution of the case.
Step 6. The Use of Presumptively Privileged Records at Trial:

• 
  A defendant seeking to introduce presumptively privileged materials shall file a
  

motion in limine at or before any final pretrial conference.

• 
  The Commonwealth, under the same protective order, may review enough of the
  

records to be able to adequately respond to the motion.

• 
  The judge may allow the motion only upon oral or written findings that the
  

privileged material is necessary for the defendant to obtain a fair trial.

• 
  Prior to permitting the motion, the judge shall consider alternatives to introduction, including stipulations or redacting portions of the records.
  

Step 7. Preservation of Records for Appeal:
All records produced in response to a Rule 17(a)(2) summons shall be retained by the clerk of the court until the conclusion of any direct appeal following a trial or dismissal of a case.
Note: The SJC promulgated model notices, orders and summonses for the Dwyer protocol, which were revised on November 30, 2007 and can be found in the Appendices, section 9.5.1
A Few Thoughts to Keep In Mind:
What if you and defense counsel don’t know if the victim has received treatment or who the victim’s care providers are? If the defense proffer does not state that information with specificity, it does not satisfy Lampron. Much of the time when you receive a Lampron mo­tion, you will not know whether a victim has even received treatment, or the provi­der's name or dates of treatment. The defense lawyer and possibly the motion judge may pressure you to find out, but in many cases you have no obligation to do so. If that information is not in the Com­mon­wealth's possession, custody, or control as defined in the old Rule 14(a)(1)-(2) and the new Mass. R. Crim. 14(a)(1)(A), a judge cannot constitu­tion­ally order a prosecutor to ask a vic­tim about the victim's treatment history. See Com­monwealth v. Beal, 429 Mass. 530, 531-534 (1999); Dexter, 50 Mass. App. Ct. at 34-35. To do so would violate the separa­tion of powers clause, Mass. Declaration of Rights, Part I, art. 30. The District Attor­ney, a member of the executive branch of govern­ment, has the authority to direct Assistant District Attor­neys' pro­secution of criminal cases. See G.L. c. 12, §§ 16 & 27; see also Manning v. Municipal Court, 372 Mass. 315, 315 (1977). Discretionary executive decisions are beyond judicial review. She­pard v. Attorney General, 409 Mass. 398, 401-402 (1991). A victim is not an agent of the pro­secution, and so the Commonwealth has no obli­ga­tion to ask the victim on the defendant's behalf to turn over an item. Beal, 429 Mass. at 532-533.

There are two big caveats to this: First, your ethical obligations. You are bound by the Mass. Rules of Professional Con­duct (SJC Rule 3:07). You should read them, often. If you have reason to believe that the vic­tim's mental health history is a relevant issue in the case, you cannot ethically re­frain from asking the victim about it just to avoid ha­ving to provide it in disco­very. "The prosecutor in a criminal case shall: . . . (j) not in­ten­tionally avoid pursuit of evi­dence because the prosecutor be­lieves it will damage the prose­cution's case or aid the accused." Mass. R. Prof. Cond. 3.8(j); see also for­mer SJC Rule 3:08, PF 7(b). See generally Mass. R. Prof. Cond. 3.8(d). It is un­ethi­cal for prosecutors to "keep[] themselves wilfully ignorant of potentially exculpatory evidence." Beal, 429 Mass. at 535 n.4. On the other hand, defense counsel cannot bring a discovery mo­tion just to intimidate the victim from go­ing for­ward. "In repre­sen­ting a client, a lawyer shall not use means that have no substantial purpose other than to embar­rass, delay, or burden a third person, or use methods of obtaining evi­dence that vio­late the rights of such a person." Mass. R. Prof. Cond. 4.4. Similarly, defense counsel cannot force you to be the one to ask the victim embarrassing or in­timate questions just to under­mine your relationship with the victim. See Mass. R. Prof. Cond. 3.4(a) & (f); see al­so former SJC Rule 3:08, DF 9(b).
Second, under Rule 14(a)(1)(E), if the prosecutor receives information that items exist that would be discoverable if they were in the prosecution’s possession, custody, or control (but they are not), the prosecutor must notify the defendant of the existence of the item and all information known to the prosecutor about its location and the identity of any person possessing it.

Given all that, you often have to make a judgment call about whether to ask the vic­tim about her treatment, and should do so where the records will obviously be at is­sue (e.g., the victim has mental or substance abuse problems relating to his/her ability to per­ceive the crime). See, e.g., Commonwealth v. Figueroa, 413 Mass. 193, 203 (1992), S.C., 422 Mass. 72 (1996); Moran, 439 Mass. at 486-488 (prosecutor elicited victim’s testimony that gynecological procedure before rape gave her reason not to consent; defense should have been entitled to introduce records about nature of pro­cedure). On the other hand, if during the investigation it did not occur to the police, medical personnel, the victim-witness advocate, or the trial prosecutor to ask a victim about her or his mental health history, then it is probably not relevant. But if defense counsel claims it is relevant and pres­sures you to ask the victim, at least make the defense back up the claim with a Lampron affidavit showing rele­vance. To resolve this dilemma in your case, you have to think through your trial strategy tho­­roughly--and well in advance of trial--and discuss it with your supervisor. See Commonwealth v. Slonka, 42 Mass. App. Ct. 760, 771, further ap­pel­late review denied, 425 Mass. 1108 (1997), and Commonwealth v. Pratt, 42 Mass. App. Ct. 695, 700 (1997).

If you refuse to ask the victim something (e.g., who the care providers are), you still have to give defense counsel access to ask the victim. See Mass. R. Prof. Cond. 3.4(a) & (f) (and former SJC Rule 3:08, PF 3(b)); see also K. Smith, Criminal Practice and Procedure § 1408 (1983 & Supp. 1999). However, a victim can refuse to speak to de­fense counsel, or insist that the prosecutor or victim-witness advocate be pre­sent. G.L. c. 258B, § 3(m); see Beal, 429 Mass. at 533-534 & n.3; Com­mon­wealth v. Rivera, 424 Mass. 266, 271 & n.6 (1997), cert. denied, 119 S. Ct. 346 (1998). Com­pare Moran, 439 Mass. at 487 n.1 (2003) (before trial judge denied defense motion to interview victim about medical treatment; case re­versed because not enough medical records came in).
Also remember the Commonwealth does not represent the victim. See Oliveira, 438 Mass. at 336. If the victim is unrepresented by counsel and the victim’s interests “have a rea­son­able possibility of being in conflict with the inter­ests of the client” of either defense coun­sel or the prosecutor, then that lawyer “shall not give advice” to the victim “other than the advice to secure counsel.” Mass. R. Prof. Cond. 4.3(b). Each lawyer has an affirmative duty to correct any misunder­stan­ding the victim may have about that lawyer’s role. Mass. R. Prof. Cond. 4.3(a).