441 Mass. 265 | Mass. | 2004
The Commonwealth filed a petition under G. L. c. 211, § 3, seeking relief from the order of a Superior Court judge for production of treatment records of an alleged rape victim. The basis on which relief was sought was that defense
1. Background. The defendant was indicted on four charges of aggravated rape and one charge of administering a drug with an intent to stupefy or overpower to enable sexual intercourse. Counsel for the defendant issued subpoenas duces tecum to his office the records of several medical, psychiatric, and social services providers relating to their treatment of the alleged victim. The providers asserted that the records were privileged. The Commonwealth learned of counsel’s efforts and filed a motion to quash the subpoenas. A judge in the Superior Court quashed the subpoenas because defense counsel had failed to obtain prior judicial approval.
Defense counsel’s affidavit contains statements to the effect that the defendant has knowledge of the alleged victim’s history of drug and alcohol abuse; that she had voluntarily used drugs during the alleged rape; that she had been transported by the defendant and subsequently was admitted to a psychiatric facil
2. Discussion. The Commonwealth argues that the motion judge erred by allowing the motion for inspection of records because it was not supported by the affidavit of a person with personal knowledge of the facts stated therein. See Mass. R. Crim P. 13 (a) (2), 378 Mass. 871 (1979).
The judge’s insistence on “compliance with the Bishop-Fuller protocol” necessarily involves rule 17 (a) (2) because the protocol is not implicated until the holder of the privilege or the keeper of the records asserts a privilege in response to an order for production and refuses to produce the records, see Commonwealth v. Bishop, supra at 181, or files a motion to quash based on a claim of privilege. The judge must then determine whether the records are privileged. Id.
Here, the Bishop-Fuller protocol has not yet been implicated because no privilege has been asserted in response to the judge’s order, either by way of a “refusal” to comply or by way of a motion to quash. See Commonwealth v. Oliveira, 438 Mass.
Regardless of how a defendant styles his request, pursuit of documents and records in the possession of a nonparty must be considered and analyzed under rule 17 (a) (2) (summons for production of documentary evidence and objects). See Application of a Grand Jury of N.Y., 8 Mass. App. Ct. 760, 767 (1979) (“summons” includes subpoena duces tecum). Rule 17 (a) (2) is silent as to the showing required before a summons for the production of documentary evidence and objects may issue. The rule states that the summons may be quashed or modified “if compliance would be unreasonable or oppressive or if the summons is being used to subvert the provisions of rule 14.”
Because we have not previously considered the question, it is appropriate to look to the Federal analogue of rule 17 (a) (2), on which our rule was modeled, for interpretive guidance. See Matter of a Grand Jury Subpoena, 411 Mass. 489, 500 (1992). Under Fed. R. Crim. R 17 (c), the party moving to subpoena
We turn to the procedure for issuance of a summons for the production of documentary evidence and objects under rule 17 (a) (2). Although the rule authorizes a clerk to issue a summons for a trial or evidentiary hearing, a clerk has no authority to issue such process for attendance or production of documents prior to trial. Only a judge has that authority prior to trial, on the filing of a motion. See K.B. Smith, Criminal Practice and Procedure § 1559 (2d ed. 1983 & Supp. 2003). A judge’s power under rule 17 (a) (2) includes the power to direct a nonparty to produce documentary evidence prior to trial to allow the parties to inspect such documents or objects in preparation of trial. See K.B. Smith, Criminal Practice and Procedure, supra at § 1559. The rule is intended to expedite trial proceedings by avoiding delay caused by the often onerous task of responding to a summons of documents. Id. See Bowman Dairy Co. v. United States, supra at 220 (Federal rule). This procedure must be followed whenever any documents, including documents likely to be privileged, are sought prior to trial. See Commonwealth v. Bishop, supra at 185-186 (judge properly denied defendant’s motion for production of certain school records of victim which, though not privileged, had not been shown to be relevant).
Because a summons for production of documentary evidence and objects prior to trial must be sought by motion, the motion must be supported by affidavit. See Mass. R. Crim. P. 13 (a) (2) (“an affidavit detailing all facts relied upon in support of the motion and signed by a person with personal knowledge of the factual basis of the motion shall be attached”). The Commonwealth argues that defense counsel’s affidavit failed to meet the requirements of rule 13 (a) (2) because it included facts that were not within the personal knowledge of counsel. We note, however, that a subpoena for documents in the possession of a
Although counsel’s affidavit in this case does not contain facts within his personal knowledge, it appears to contain facts that are in the personal knowledge of counsel’s sources. It is also apparent from the affidavit that his sources include the defendant. The information in the affidavit appears sufficiently reliable for the issuance of the summonses for documentary evidence, and the Commonwealth does not contend otherwise. The Commonwealth’s only objection is that the information is hearsay. The Superior Court judge acted within his discretion in accepting this hearsay as reliable and ordering production. See Commonwealth v. Wanis, 426 Mass. 639, 642 (1998) (whether documents or records should be produced prior to trial is reserved to sound discretion of trial judge). Of course, the judge could have insisted, also within his discretion, that the affidavit more specifically identify the sources of the hearsay. Similarly, the single justice acted within his discretion in denying the Commonwealth’s petition under G. L. c. 211, § 3.
We add that, although the defendant has met the requirements of rule 17 (a) (2), that entitles him only to the initial order for production of records. In the event privileges are asserted in
So ordered.
Defense counsel may not, without prior judicial approval, subpoena persons or documents to his office. Cf. Commonwealth v. Smallwood, 379 Mass. 878, 887 & n.3 (1980) (improper for prosecutor to subpoena witness for interview unless authorized to do so).
Rule 13 (a) (2) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 871 (1979), governs pretrial motions and requires that “an affidavit detailing all facts relied upon in support of the motion and signed by a person with personal knowledge of the factual basis of the motion shall be attached.”
While the providers asserted a privilege in response to defense counsel’s improper subpoena, that subpoena was quashed on other grounds. On a proper court order to produce records, privilege may again be asserted, thereby triggering stage 1 of the Bishop-Fuller protocol. The keeper of records as to which a privilege is to be asserted should not deliver the records to the court. Rather, after the privilege is asserted and pending application of the Bishop-Fuller protocol, the keeper of the records should await the further order of the court. Cf. Commonwealth v. Fuller, 423 Mass. 216, 226 (1996).
Rule 14 of the Massachusetts Rules of Criminal Procedure, 378 Mass. 874 (1979), governs pretrial discovery. Rule 14 does not apply here because the records sought are not within the control of the prosecution, or someone under the “control of the prosecutor.”
The term “summons” in the Massachusetts rule is synonymous with “subpoena” as used in Federal rule 17(c). See Reporters’ Notes to Mass. R. Crim. P. 17, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1368 (Lexis 2003).
The subpoena must extend only to the portions of the requested documents that are relevant to the matter. See United States v. Dubrow, 201 F. Supp. 101, 104 (D. Mass. 1962).