Lead Opinion
Thе issue in this appeal is whether Mass. R. Crim. P. 14 (b) (2) (B), as amended,
1. Background. A grand jury returned twenty-two indictments against the defendant on various charges, including murder in the first degree and various counts of masked armed robbery. These indictments arose out of a robbery of a jewelry counter at a department store in Woburn during which a police officer was killed. Pursuant to Mass. R. Crim. P. 14 (b) (2), as amended,
2. Rule 14 (b) (2) (B). As our task is to interpret a rule of criminal procedure, we begin with the plain language of the rule. Massachusetts Rule of Criminal Procedure 14 (b) (2) (A), as amended,
“(B) If the notice of the defendant or subsequent inquiry by the judge or developments in the case indicate that statements of the defendant as to his or her mental condition will be relied upon by a defendant’s expert witness,the court, on its own motion or on motion of the prosecutor, may order the defendant to submit to an examination consistent with the provisions of the General Laws and subject to the following terms and conditions:
“(i) The examination shall include such physical, psychiatric, and psychological tests as the examiner deems necessary to form an opinion as to the mental condition of the defendant at the relevant time. . . .” (Emphases added.)
The rule outlines additional procedural details concerning the requisite reports of both the defendant’s and Commonwealth’s expert witnesses. In relevant part, the rule as amended requires that “[t]he reports of both parties’ experts must include a written summary of the expert’s expected testimony that fully describes: the defendant’s history and present symptoms . . . [and] the bases and reasons for [the expert’s] opinions” (emphasis added). Mass. R. Crim. P. 14 (b) (2) (B) (iii).
The motion judge denied the portion of the Commonwealth’s motion that sought accеss to the defendant’s treatment records because he read rule 14 (b) (2) (B)’s “examination” allowance narrowly as precluding pretrial discovery of the defendant’s medical and psychiatric records. He found support for his interpretation in this court’s language in Commonwealth v. Sliech-Brodeur,
Rule 14 (b) (2) (B) outlines the circumstances under which a defendant may be required to submit to an “examination.” Because the express language of mle 14 (b) (2) (B) allows for an “examination,” so too does it allow for all that is inherent in a psychiatric examination. As a general matter, review of treatment records is an important aspect of a comprehensive and meaningful psychiatric examination.
The ability of the rule 14 (b) (2) (B) examiner to access a defendant’s medical and psychiatric records furthers rule 14 (b) (2) (B)’s truth-seeking function. See Blaisdell v. Commonwealth,
Moreover, an examiner’s access to a defendant’s treatment records typically is necessary because patients often are “poor historians” of even their own medical history. Commonwealth v. Alvarez,
This case is distinguishable from Sliech-Brodeur, supra at 319 n.27, 323 n.31, where we concluded that a defendant was not obliged to provide the Commonwealth with notes and materials of the defendant’s own psychiatric expert pursuant to rule 14 (b) (2) (B). Unlike access to materials generаted contemporaneously by the defense, allowing a rule 14 (b) (2) (B) examiner access to a defendant’s treatment records is part and parcel of a rule 14 (b) (2) (B) examination. Our conclusion that rule 14 (b) (2) (B) permits discovery of materials that are available to, as opposed to generated by, the defense is consistent with the general precept that rule 14 (b) (2) (B) permits discovery of “helpful medical and psychiatric information at any point in the proceedings pertaining to the trial issue of the defendant’s criminal responsibility,” provided a defendant’s rights are protected. Blaisdell v. Commonwealth, supra at 756-757.
3. Privilege. The defendant argues that requiring him to disclose his treatment history violates his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The motion judge determined that disclosure of the substance of the defendant’s treatment records “does not seem to implicate the privilege against govemmentally compelled self-incrimination.” He suggested, however, that the psychotherapist-
The particulars of any of the defendant’s treatment records are unknown at this stage of the litigation. Nevertheless, even assuming that pretrial discovery of a defendant’s treatment provider information or records implicates the privilege against self-incrimination,
Likewise, the defendant waived any statutory privilege in his mental health treatment records to the extent that he may be obliged to submit to the same court-ordered examination pursuant to rule 14 (b) (2) (B).
Regardless, pursuant to rule 14 (b) (2) (B), the defendant’s treatment provider information and records will, initially, be made available to the rule 14 (b) (2) (B) examiner only. Absent the defendant’s consent, information regarding the defendant’s treatment history will not be revealed to the prosecution prior to the mutual exchange of the expert’s reports.
4. Procedure. Here, the Commonwealth has requested disclosure of all persons having custоdy of any of the defendant’s medical and psychiatric records, and production of all such treatment records to the court, without limitation as to date or type of treatment. Although we recognize the broad scope of this request, we likewise recognize the many factors that may bear on a defendant’s mental condition.* *****
Until the committee has the opportunity to consider these issues, we follow a “same records” approach whereby a defend
5. Conclusion. We reverse the motion judge’s order in so far as it denies the Commonwealth’s motion for access to the defendant’s medical and psychiatric records on behalf of the rule 14 (b) (2) (B) examiner, and remand the case for further proceedings consistent with this opinion.
So ordered.
Notes
When the defendant submitted his notice of intent to offer expert testimony regarding his mental state and the motion judge ruled on the Commonwealth’s responsive motion, Mass. R. Crim. P. 14 (b) (2), as appearing in
Although the Commonwealth sought both provider information and substantive records, as a technical matter, it only seeks disclosure оf provider information from the defendant. Of course, the Commonwealth is not interested in the list of the defendant’s treatment providers for its own sake, but as a means of obtaining the defendant’s medical and psychiatric records from his clinicians. For this reason, we focus mainly on the substantive disclosure of the defendant’s treatment records to the rule 14 (b) (2) (B) examiner.
Moreover, inherent in the requirement of rule 14 (b) (2) (B) that the defendant “submit to an examination,” should the court so order, is the obligation that the defendant cooperate with the rule 14 (b) (2) (B) examiner to the same extent as with the defense expert, including disclosing information about his treatment history (emphasis added). See rule 14 (b) (2) (B) (iv). Requiring such disclosure advances our interests in speedy and efficient trial preparation, given that healthcare information is generally within the defendant’s knowledge and control. See Blaisdell v. Commonwealth,
The defendant objects to the rule 14 (b) (2) (B) examinеr’s discovery of treatment records that defense counsel did not intend to provide to his own defense expert. However, we have said that defense counsel renders ineffec
Compare, e.g., Commonwealth v. Trapp,
Although confidential, see H.J. Alperin, Summary of Basic Law § 10.77,
The defendant does not object to the prosecution’s discovery of his treatment history on the releаse of the experts’ reports.
r example, medical records concerning a defendant’s physical condition may prove highly relevant to the issue whether a defendant suffered from impaired mental health at the time of an alleged offense. See Commonwealth v. Alvarez, supra at 101. See also M.G. Perlin & D. Cooper, 2 Massachusetts Proof of Cases § 36:6, at 45 (2012 ed.) (“The whole conduct of the defendant from childhood, including evidence of the defendant’s physical condition, has been admitted to prove insanity at the time of committing the crime”).
We expect that neither examiner will need to review records that are irrelevant to the issue of the defendant’s mental condition at the time of the commission of the alleged offense.
At the least, such disclosure should include the psychiatric records the defendant referenced in his journal.
Dissenting Opinion
(dissenting, with whom Botsford and Duffly, JJ., join). The court today effects a sea change in the scope of discovery permitted in conjunction with a psychiatric examination pursuant to Mass. R. Grim. P. 14 (b) (2) (B), as amended,
Although the court purports to refer the “scope of requisite
In concluding that such mandatory discovery is no more than “part and parcel” of a rule 14 (b) (2) (B) examination, ante at 645, the court decides for the first time that a defendant must identify, for the use of the Commonwealth’s expert, all of his or her physical and mental health treatment providers and that, upon the expert’s request, those providers must thereafter supply the expert with their treatment records. I disagree that rule 14 (b) (2) (B) as it presently stands can fairly be read to require such mandatory disclosure. I would accordingly affirm the motion judge’s decision as being, on the record before him, squarely within his discretion. That being said, I nonetheless recognize that the Commonwealth raises important questions concerning the proper scope of a rule 14 (b) (2) (B) examination and appropriate related discovery, and that these questions deserve serious consideration.
To avoid the unnecessary risk of untold consequences from a precipitous expansion of mandatory discovery obligations, however, I would refer such questions to the committee, or to an ad hoc committee created for this purpose, and seek its advice concerning whether and to what extent rule 14 (b) (2) (B) should explicitly require the pretrial disclosure of treatment providers and the production of treatment records in conjunction with the rule 14 (b) (2) (B) examination. In performing its work, the committee (or ad hoc committee) should be tasked, among other things, with investigating whether practitioners
The “examination” to which the rule refers is otherwise undefined. Dictionary definitions do not aid the court’s interpretation of its scope.
The rule 14 (b) (2) (B) examination does not implicate a doctor-patient relationship, is evaluative in nature and purpose, and is intended solely to form the basis for the opinion that the expert will render as to the defendant’s mental condition at the relevant time. It is a short step from the court’s flawed premise as to the nature of the “examination” at issue to its mistaken view that the language of rule 14 (b) (2) (B), allowing for an examination, allows also “for all that is inherent in a psychiatric examination,” ante at 643, and that this must include, if the examination is to be “comprehensive and meaningful,” id., the expert’s review of potentially all of a defendant’s medical and psychiatric records, throughout his or her life. Ante at 648-649. Of equal concern is the fact that, on this logic, because the wholesale disclosure of treatment providers and documents is but “part and parcel” of the rule 14 (b) (2) (B) examination itself, such disclosure “falls within the scope of the limited waiver effectuated when a defendant is required to submit to a rule 14 (b) (2) (B) examination.” Id. at 645, 646.
The court discerns further support for its position in the 2012 amendments to rule 14 (b) (2) (B), which addressed the written reports that the experts must file with the court as to the mental condition of the defendant at the relevant time. Ante at 643. The
The court reads into the requirement that the experts’ reports contain a summary that “fully describes” these various matters the obligation that the experts themselves gather a full history of the defendant. Ante at 643-644. The court then sees no way that this extrapolated “requirement” can be met absent the defendant’s compilation and disclosure to the experts of all of the defendant’s treatment providers, throughout that individual’s lifetime, and by the providers’ production of expert-designаted treatment records. Ante at 643-645, 647-649.
The rule as written requires no such thing. It does not require that the expert for either party obtain a full history of the defendant any more than it requires either expert to perform physical, psychiatric, or psychological tests. What it does require from the experts for both parties is that they produce reports fully describing, inter alia, whatever tests were in fact performed and their results, whatever symptoms have been observed, and whatever history of the defendant has been taken. Mass. R. Crim. P. 14 (b) (2) (B) (iii).
Moreover, the Commonwealth has not articulated any reasons why it needs the discovery it seeks in this case. In appropriate circumstances, where necessity is established, Mass. R. Crim. P. 14 (b) (2) (C) (authorizing “[additional discovery” of “other material and relevant evidence relating to the defendant’s mental condition”) already provides a trial judge “the flexibility tо require the parties to provide additional discovery beyond the information contained in the notice that the defendant must give and the reports that the experts must file.” See Reporters’ Notes to Rule 14 (b) (2) (C), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1523 (LexisNexis 2012). As the Reporters’ Notes make clear, however, “[i]t is a very limited grant of discretion and should be reserved for cases presenting discovery issues that are out of the ordinary.” Id.
The court maintains that the mandated disclosure of treatment providers and records has always been “part and parcel” of a rule 14 (b) (2) (B) examination, ante at 645; I conclude otherwise. Based on the plain language of the rule, this court’s prior holdings, see Commonwealth v. Sliech-Brodeur,
That the rule as written does not require the discovery now mandated deepens my concern as to the risk of adverse consequences attendant upon the court’s decision and its departure from current practice. A defendant who has suffered a severe head injury such as the defendant in Commonwealth v. Alvarez,
Defendants ordinarily have not been required to produce prior treatment records either before or after delivery of the experts’ reports, and certainly not all such treatment records upon designation by the Commonwealth’s expert, irrespective of whether defense counsel intends to use them at trial or to provide
Moreover, rule 14 (b) (2) (B) (ii) provides that “[n]o statement, confession, or admission, or other evidence of or obtained from the defendant during the course of the examination, except evidence derived solely from physical examinations or tests, may be revealed to the prosecution or anyone acting on its behalf unless so ordered by the judge.” Apart from underscoring that rule 14 (b) (2) (B) does not anticipate that the Commonwealth’s psychiatric expert will have the subject treatment
While awaiting the committee’s implementation of today’s discovery mandate, the court devises an interim procedure whereby “a defendant is to provide the rulе 14 (b) (2) (B) examiner with the same records provided to or considered by the defense expert,”
In addition to its failure to articulate why it needs the discovery it seeks in this case, the Commonwealth has not established why the sweeping expansion of the scope of permissible discovery under rule 14 (b) (2) (B) it advocates is warranted and appropriate. Given the absence of exigency, the limits of the information before us, and the importance of the interests involved, the court today plunges unnecessarily into uncharted waters. To be sure, we are the ultimate interpreters of rule 14 (b) (2) (B). In performing that task, however, we should tread carefully before embarking on a significant change in practice, first seeking the advice and counsel of those familiar with the rule and with any perceived shortcomings in its application. If, in the interests of more open discovery and fair
Because I believe that changes of such moment should not be made without public consideration and comment, and after duly weighing the possible consequences, I respectfully dissent.
use the word “practitioners” to include both practicing defense attorneys and prosecutors, as well as practicing psychiatrists and psychologists who are called upon to perform rule 14 (b) (2) (B) examinations.
A dictionary definition of an “examination” is “the act or process of examining or state of being examined.” Webster’s Third New International Dictionary 790 (1993). To “examine,” in turn, means “to test by an appropriate method ... to look over: inspect visually or by use of other senses . . . to inspect or test for evidence of disease or abnormality... to inquire into the state of especially] by introspective processes.” Id.
In Blaisdell v. Commonwealth,
The Reporters’ Notes indicate that the 2012 amendments to rule 14 (b) (2) (B) were made in order to incorporate in the rule this court’s holding in Commonwealth v. Sliech-Brodeur,
Thus, we concluded that disclosure to the Commonwealth’s expert of the defendant’s statements to her psychiatric expert, that expert’s notes, the results of tests he performed, and other materials upon which the defendant’s expert relied, prior to trial, was error. Id. at 321. We determined, however, that rule 14 (b) (2) should be amended to require a defendant’s expert to produce, at a point to be recommended by the court’s standing advisory committee on the rules of criminal procedure, “a report that includes the defense expert’s opinion and the bases and reasons for this opinion,” and asked the committee to propose such an amendment. Sliech-Brodeur, supra at 325. The 2012 amendments were made accordingly, requiring the defense expert’s report to be produced after the Commonwealth has delivered its expert’s report to the defendant. See Mass. R. Crim. P. 14 (b) (2) (B) (iii).
The court seems to have imposed an obligation upon defense counsel to compile information identifying all of the defendant’s treatment providers. How this is to be accomplished is unclear when it is questionable whether even an eighteen year old defendant or his family members would have readily at their disposal specifics as to “names, addresses, dates of treatment, and areas of specialized practice of all treatment providers.” Ante at 649. See ante at note 3, 648-649. For an older defendant, particularly one with a history of mental illness, and who is dependent upon the record-retention policies of individual health care providers, such information may be impossible to obtain.
Relying on Commonwealth v. Alvarez,
Apparently the defendant will bear the expense of producing these potentially voluminous records.
While the court states that it “expect[s]” that neither the Commonwealth’s nor the defendant’s expert “will need to review records that are irrelevant to the issue of the defendant’s condition at the time of the commission of the alleged offense,” ante at note 9, it does not suggest that relevancy is a condition of the obligation to produce treatment records. I am unaware of any other instance in our discovery jurisprudence where matters of relevancy are presumptively immaterial. Contrast Commonwealth v. Lampron,
In any event, given the limited information that the Commonwealth’s examiner may have available by which to determine relevancy, it is uncertain how such determinations will be made. Moreover, since any undisclosed record the Commonwealth’s examiner deems “necessary” is to be subpoenaed by the clerk and delivered to the Commonwealth’s expert, without the involvement of a judge, it is less than clear how a defendant will “have the opportunity to move to exclude” any “objectionable” material. Ante at 649.
belying in part on Commonwealth v. Callahan,
“The Commonwealth relies on our decision in Blaisdell to claim that by offering expert testimony the defendant waived his privilege against self-incrimination, as well as the protections of [G. L. c. 233,] § 23B. The Commonwealth misreads our deсision in Blaisdell. In Blaisdell, we ruled that when a defendant notifies the Commonwealth that he intends to raise the issue of his criminal responsibility and to present the evidence of experts who have examined him, then he may be required to submit to a court ordered psychiatric examination. This is so because the defendant, by voluntarily proffering such evidence to the jury, has waived his privilege against self-incrimination to a limited extent. However, we did not hold that the defendant thereby waived his privilege against self-incrimination entirely. Indeed, we imposed stringent guidelines on the use of the fruits of the compelled interview. ... In Commonwealth v. Goulet,374 Mass. 404 , 411 n.4 (1978), we again made it clear that the waiver we found in Blaisdell was a limited waiver that could require a defendant to submit to a court ordered examination. We stated that ‘[t]his waiver is implied in the interest of giving the Commonwealth a fair chance to present countervailing psychiatric testimony; it is not to be understood as a complete relinquishment of the Fifth Amendment and art. 12 privilege which could allow pressure on the defendant to take the witness stand.’ Id.”
Commonwealth v. Callahan, supra at 788-789.