Commonwealth v. Kelsey
464 Mass. 315
| Mass. | 2013Background
- Defendant on probation for two unrelated convictions; alleged sale of crack cocaine to a confidential informant during probation.
- District Court denied defense motion to disclose informant’s identity in probation revocation context.
- Probation revocation hearing held; informant’s identity remained undisclosed.
- Informant was a participant and sole nongovernment witness to the alleged offense.
- Probation officer and Commonwealth proceeded without informant’s testimony; judge denied disclosure.
- Court vacates revocation order and remands for further proceedings on disclosure issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether informant identity must be disclosed in probation revocation when informant is participant and sole percipient | Durling-like standards require disclosure where relevant to defense | Disclosure is necessary to present a complete defense given informant’s role | Not automatically required; case-specific balancing needed; error to deny without considering totality of circumstances |
| Scope of due process rights in probation revocation to present a defense | Right to present witnesses is essential to fair determination | Flexibility of probation due process may justify nondisclosure | Right to present a defense is weighty and must be weighed against government interests; depends on circumstances |
| Correct standard for evaluating disclosure in probation context | Informant’s materiality to defense should guide disclosure | Discretionary nondisclosure favored in probation hearings | Requires a totality-of-circumstances balancing; not a blanket rule against disclosure |
| Consequence of prior dismissal of criminal charges on disclosure in probation matter | Informant’s testimony could be crucial in probation proceeding | Criminal case dismissal should not affect probation process rights | Remand for further proceedings; judge may conduct in camera assessment of materiality and interests |
Key Cases Cited
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. Supreme Court 1973) (due process protections in probation revocation; confrontation and defense rights)
- Morrissey v. Brewer, 408 U.S. 471 (U.S. Supreme Court 1972) (probation/parole liberty and revocation process)
- Commonwealth v. Durling, 407 Mass. 108 (Mass. 1990) (scope of due process in probation revocation; flexible, totality-based approach)
- Commonwealth v. Lugo, 406 Mass. 565 (Mass. 1990) (informant disclosure in criminal context; material evidence test)
- Commonwealth v. Swenson, 368 Mass. 268 (Mass. 1975) (informant identity and materiality considerations in disclosure)
- Commonwealth v. Dias, 451 Mass. 463 (Mass. 2008) (informant privilege and in camera proceedings when material to defense)
- Commonwealth v. Johnson, 365 Mass. 534 (Mass. 1974) (materiality and relevancy of disclosure to defense)
- Commonwealth v. Balliro, 349 Mass. 505 (Mass. 1965) (access to material witnesses as part of defense)