Commonwealth v. Durham - 446 Mass. 212, 843 N.E.2d 1035 (2006)

Rule:

Under former Mass. R. Crim. P. 14(a)(3)(A), a trial judge is authorized to order the defendant to disclose any material and relevant evidence discoverable under Rule 14(a)(2) which the defendant intends to use at trial. Evidence discoverable under Rule 14(a)(2) includes any material and relevant evidence, documents, or statements of persons within the possession, custody, or control of the adversary. Nothing in Rule 14(a)(2) limits the word "persons" to include only witnesses whom the disclosing party intends to call at trial during the presentation of its case-in-chief. Such a limitation would be contrary to the fact that persons, characterized here as prospective witnesses, belong neither to the Commonwealth nor to the defense. They are not partisans and should be available to both parties in the preparation of their cases. The same can be said for their "statements." The language in Rule 14(a)(3)(A), "including the names, addresses, and statements of those persons whom the defendant intends to use as witnesses at trial," presents only one example of the type of evidence discoverable under Rule 14. The word including bespeaks an expansion rather than a restriction.

Facts:

In the parties' pretrial conference report, executed pursuant to Mass. R. Crim. P. 11, 378 Mass. 862 (1979), the defendant agreed to provide specified reciprocal discovery to the Commonwealth, including any written or recorded statements of any witness, excluding the defendant, in the possession, custody or control of defense counsel or agents that the defendant intended to use for the case in chief. The defendant later filed a motion for additional discovery, seeking the names of all the Commonwealth's prospective trial witnesses and an opportunity to inspect all documentary and physical evidence that the Commonwealth intended to offer at trial. A Superior Court judge allowed the motion, contingent on the defendant providing the same discovery to the Commonwealth, and limiting the obligation to such evidence that pertained to each party's case-in-chief. Subsequently, the Commonwealth filed a motion for additional reciprocal discovery, seeking the disclosure of any written or recorded statement of any prospective witness, including potential witnesses for the Commonwealth, that the defendant intended to offer at trial for any purpose, including for impeachment. The court directed defendant to furnish the Commonwealth with "statements" of witnesses whom the Commonwealth intended to call at trial and which were in the possession, custody, or control of defendant or his attorney. Defendant appealed the order. While the appeal was pending, defendant plead guilty to manslaughter and was sentenced.

Issue:

Could the trial court order the defendant to furnish the Commonwealth with "statements" of witnesses whom the Commonwealth intended to call at trial and which were in the possession, custody, or control of defendant or his attorney? 

Answer:

Yes.

Conclusion:

The high court heard the appeal despite its mootness, as the issue was a recurring one, and held that the order was proper. Under Rule 14(a)(3)(A), the trial court could order a defendant to disclose any material and relevant evidence discoverable under Rule 14(a)(2) that he intended to use at trial. Evidence discoverable under Rule 14(a)(2) included documents or statements of persons within the possession, custody, or control of the adversary. Rule 14(a)(2) did not limit the word "persons" to include only witnesses the disclosing party intended to call at trial during its case-in-chief. The order did not violate the work product provision, Rule 14(a)(5), as it expressly did not apply to work product. The order did not violate federal and state constitutional protections by impairing his right to confront witnesses, his privilege against self-incrimination, or his right to a fair trial and the effective assistance of counsel.