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

5.2. WHAT TO PROVIDE THE DEFENSE AS A MATTER OF ROUTINE

Mass. R. Crim. P. 14 was amended in 2004 and now mandates automatic discovery from the Commonwealth to the defendant, at or prior to the pre-trial conference, of specific evidence, provided that it is relevant to the case and in the possession, custody or control of the prosecutor, persons under the prosecutor’s direction and control, or persons who have participated in investigating or evaluating the case and either regularly report to the prosecutor’s office or have done so in the case. See Rule 14 (a)(1)(A).

This automatic mandatory discovery to the defendant consists of:

1. 
   Any written or recorded statements, and the substance of any oral statements, made by the defendant or a co-defendant;
   
2. 
   Grand Jury minutes, and the written or recorded statements of a person who has testified before a grand jury;
   
3. 
   Any facts exculpatory in nature;
   
4. 
   The names, addresses, and dates of birth of the Commonwealth’s prospective witnesses other than law enforcement witnesses;
   
5. 
   The names and business addresses of prospective law enforcement witnesses (Note: you are not required to disclose the dates of birth or home addresses of police officers. See Commonwealth v. Righini,64 Mass. App. Ct. 19 (2005));
   
6. 
   Intended expert opinion evidence (other than criminal responsibility) including for each expert their identity, C.V., list of publications, and all reports prepared that pertain to the case;
   
7. 
   Material and relevant police reports, photographs, tangible objects, all intended exhibits, reports of physical examinations, and statements of person the Commonwealth intends to call as witnesses;
   
8. 
   A summary if identification procedures, and all statements made in the presence of or by an identifying witness that are relevant to the issue of identity or to the fairness or accuracy of the identification procedures; and
   
9. 
   Disclosure of all promises, rewards or inducements made to witnesses the Commonwealth intends to present at trial.
   

Pursuant to Rule 14(a)(2), the defendant may move, and following the filing of the Commonwealth’s Certificate of Compliance, the Commonwealth may move, for discovery of other material and relevant evidence not required in subdivision (a)(1) within the time allowed by Rule 13(d)(1).
When there is good cause not to disclose certain information, ask for a protective order pursuant to Rule 14(a)(6) or move for disclosure only to defense counsel pursuant to Rule 14(a)(7). A sample motion is provided in

the Motions Section, section 6, infra.

With respect to some of the above listed items, here is some further information and case law on issues that frequently arise:

• 
  Exculpatory Statements and Information
  

As a matter of practice, take the most liberal view possible of “exculpatory” evidence in order to minimize any likelihood of error.
If a domestic violence or sexual assault victim recants or mitigates her account of the defendant’s criminal activity, produce this new statement to the defense, even if you don’t believe the altered version. Evidence that is material to the impeachment of a Commonwealth witness is exculpatory and must be disclosed. Impeaching material includes any prior inconsistent statement of a witness.
You are responsible for providing defense counsel possible exculpatory evidence from the police, from affiliated government agencies that have participated in the case, and from any others acting on the government’s behalf in the case.
However, the Court can not order you to make direct inquiries of the victim, at the defense counsel’s request: an independent witness, including a complainant, is not an agent of the government.

Evidence favorable to the accused, and material to either guilt or punishment, must be disclosed. Brady v. Maryland, 373 U.S. 83, 87 (1963). Suppression by the prosecution of evidence favorable to the defendant upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of good faith or bad faith of prosecution. Id.
Exculpatory evidence includes “evidence which provides some significant aid to the defendant’s case, whether it furnishes corroboration of the defendant’s story, calls into question a material, although not indispensable, element of the prosecution’s version of the events, or challenges the credibility of a key prosecution witness.” Commonwealth v. Ellison, 376 Mass. 1, 22 (1978).
In determining whether evidence that the government failed to disclose to the defendant satisfied Brady’s materiality test, the question is not whether the defendant would more likely than not have received a different verdict, but whether in its absence he received a “fair trial,” understood as a trial resulting in a verdict worthy of confidence. The “reasonable probability” of a different result is accordingly shown when the government’s evidentiary suppression undermines confidence in the outcome of trial. Kyles v. Whitley, 514 U.S. 419, 434 (1995) (citing U.S. v. Bagley, 473 U.S. 667, 678 (1985)).
In the face of a general request for exculpatory information, “the prosecution’s duty [is] limited to the furnishing of evidence in its possession that [is] obviously supportive of the defendant’s innocence.” Commonwealth v. Monteiro, 396 Mass. 123, 129 (1985). Where the accused has made a request for evidence sufficiently specific to place the prosecution on notice as to what the defense desires, the evidence must be disclosed even if it provides only a ‘substantial basis for claiming materiality exists.’ By way of contrast, where there has been no defense request whatsoever or only a general request for ‘all Brady’ or ‘all exculpatory’ evidence, the prosecutor must disclose only that evidence which is in fact material.” Commonwealth v. Wilson, 381 Mass. 90, 108-09 (1980) (quoting United States v. Agurs, 427 U. S. 97, 106 (1976)). “The due process clause does not require prosecutorial clairvoyance.” Id.
“We have never held that the Constitution demands an open file policy (however such a policy might work out in practice), and the rule in Bagley (and hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate. ... While the definition of Bagley materiality in terms of the cumulative effect of suppression must accordingly be seen as leaving the government with a degree of discretion, it must also be understood as imposing a corresponding burden. On the one side, showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more. But the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of ‘reasonable probability’ is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf, including the police. But whether the prosecution succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith, see Brady, 373 U.S. at 87) the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.” Kyles v. Whitley, 514 U.S. 419, 437-38 (1995).
A prosecutor “has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Kyles v. Whitney, 514 U.S. 419, 437 (1995); Commonwealth v. Martin, 427 Mass. 816, 823-24 (1998).
An independent witness, including a complainant, is not an agent of the government; thus, a court may not order the prosecution to make defense-directed inquiries of the witness. Commonwealth v. Beal, 429 Mass. 530, 531 (1999).
Impeaching material includes any prior inconsistent statement of a witness. See Commonwealth v. Vaughn, 32 Mass. App. Ct. 435, 439-40 (1992). The Commonwealth, however, has no obligation to “analyze and assemble the discrepancies” for the defense. Commonwealth v. Davis, 13 Mass. App. Ct. 179, 186 (1982).

• 
  Expert Proffers
  

You may decide to call an expert to assist you in explaining certain dynamics to the jury, for example, the nature of abusive relationships or how the post traumatic stress a victim encounters can affect her behavior. (See section 3.7.2 supra: Experts, for a discussion of Battered Women Syndrome and Rape Trauma Syndrome.) You must provide the defense with the names and addresses of any expert witnesses you intend to call, copies of any reports they prepare for you, and a synopsis of their qualifications and the subject matter of their testimony.

• 
  Names and Addresses of Witnesses
  

Of course, you are not obliged to provide the current address of the victim if it has been impounded, pursuant to Mass. Gen. Laws ch. 209A, § 8:
Upon the request of the plaintiff, the court shall impound the plaintiff’s address by excluding same from the complaint and from all other court documents which are available for public inspection including any copy of a protection order issued by another jurisdiction, and shall ensure that the address is kept confidential from the defendant and defendant’s attorney.
Neither are you obliged to provide the address of a shelter or a program where a victim may be receiving counseling. Effective Oct. 21, 1996, a new section was added to Mass. Gen. Laws ch. 233, § 20L:
The location and street address of all domestic violence victims’ programs, as defined in G.L. c. 233, s. 20K and rape crisis centers, as defined in G.L. c. 233 s. 20J, shall be absolutely confidential and shall not be required to be revealed in any criminal or civil proceeding.

• 
  Promises, Rewards, and Inducements
  

You must reveal any benefit, promise or understanding that might affect the credibility of a witness. Giglio v. United States, 405 U.S. 150, 153-55 (1972). Typically such promises involve sentencing or charging concessions. However, should your victim be indigent or distressed and you provide her with clothing for her court appearances, the court may view it as a benefit requiring disclosure on your part. See Commonwealth v. Fetzer, 19 Mass. App. Ct. 1024 (1985).

• 
  Police Reports
  

An inventory report which is not investigatory in nature and does not discuss the incident nor detail the defendant’s involvement in the incident, is not considered a police report for purposes of discovery. Commonwealth v. Brown, 57 Mass. App. Ct. 852 (2003).

• 
  Statements of the Defendant
  

With the new Rules amended in 2004, you must now produce written or recorded statements of the defendant in your possession, custody, or control, and the substance of any oral statements. Mass. R. Crim. P. 14(a)(1)(A); Commonwealth v. Lewinski, 367 Mass. 889, 903 (1975). Rule 14(d) defines “statement” as any writing made by a person having percipient knowledge of relevant facts and which contains such facts, (other than drafts or notes that have been incorporated into a subsequent draft or final report) or a written, stenographic, mechanical, electrical, or other recording, or transcription thereof, which is a substantially verbatim recital of an oral declaration and which is recorded contemporaneously with the making of an oral declaration.

• 
  Statements of Witnesses
  

You must produce all material and relevant “statements” of all Commonwealth witnesses as that term is defined in Rule 14(d). If you want to oppose pretrial production of a witness’ statement, you should seek a protective order under Rule 14(a)(6). Rule 23(d) permits the Commonwealth to seek a protective order denying or restricting examination of a witness’s statements upon a showing of cause. Such an order may be appropriate if the statement is not related to the trial testimony; if there is a risk involved to persons named in the statement; or if the statement is commingled with work product. Commonwealth v. Lewinski, 367 Mass. 889, 902-03 (1975).