455 Mass. 171 | Mass. | 2009
We consider whether the Commonwealth, in a criminal case, may seek the production of records from a third party in advance of trial or an evidentiary hearing by issuing a subpoena duces tecum directly to the party under G. L. c. 277, § 68, or whether it must first obtain judicial approval, pursuant to Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979), as construed by Commonwealth v. Jjimpron, 441 Mass. 265, 268-271 (2004) (Lampron). We conclude that it must first obtain judicial approval.
Background. On January 19, 2007, the defendant, then sixteen years of age, was arraigned in the District Court on charges of murder in the first degree and related offenses in the stabbing death of a fellow student at Lincoln-Sudbury High School. He was ordered held without bail in the Department of Youth Services secure unit at the Plymouth County correctional facility (facility). A probable cause hearing was scheduled for March 5, 2007. See Mass. R. Crim. P. 3 (f), as appearing in 442 Mass. 1503 (2004).
On February 9, 2007, the district attorney for the northern district (district attorney or Commonwealth) issued a subpoena duces tecum to the facility’s keeper of records, seeking “any books, papers, visitor log, taped phone calls, and pin list”
On various dates between February 13 and March 1, 2007, the Commonwealth presented evidence of the stabbing to a grand jury, which indicted the defendant for murder in the first degree on March 1, 2007. Accordingly, the scheduled probable cause hearing in the District Court never took place; on March 14, the Commonwealth entered a nolle prosequi on the charges in that court.
Thereafter, the Commonwealth issued to the keeper of records three more subpoenas — on April 2, May 14, and July 26, 2007 — collectively requesting recordings of the defendant’s telephone calls for the period from February 13 to July 31, 2007.
In January, 2008, the defendant notified the Commonwealth of his intent to rely on a defense of lack of criminal responsibility because of mental disease or defect. See Mass. R. Crim. P. 14 (b) (2) (A), as appearing in 442 Mass. 1518 (2004). In April, 2008, the defendant, asserting that the Commonwealth had informed him of its intent to search the subpoenaed recordings for evidence of criminal responsibility, moved to suppress the recordings. The defendant claimed that the Commonwealth lacked authority to issue the subpoenas without first obtaining judicial approval pursuant to Mass. R. Crim. P. 17 (a) (2),
At the outset of the hearing on the defendant’s motion, the judge (with the parties’ agreement) decided to focus on whether the Commonwealth had erred in failing to comply with the requirements of rule 17 (a) (2) and Lampron because if so, the judge reasoned, the subpoenas would have issued improperly, and thus the judge would not need to address the defendant’s constitutional claims. The judge added that, were he to conclude that the Commonwealth had erred in failing to comply with the requirements of rule 17 and Lampron, it would still be entitled, in a future motion, to seek to satisfy those requirements.
On May 14,2008, following the hearing (at which the facility’s telephone system administrator was the sole witness), the judge allowed the defendant’s motion to suppress. He concluded that the Commonwealth had erred in failing to seek prior judicial approval before issuing the subpoenas, and ordered the parties to turn over all copies of the recordings and associated documents to the clerk of the Superior Court, where they would be impounded.
Subsequently, the Commonwealth moved under rule 17 and Lampron for judicial approval to subpoena a portion of the recordings it had originally sought, namely, recordings of the defendant’s telephone calls from January 19 to March 6, 2007. On May 23, 2008, the judge found the Commonwealth had failed to satisfy the requirements of Lampron and denied the motion. He said, however, that closer to trial he would be willing to revisit the Commonwealth’s attempt to subpoena the telephone calls, further noting that any future attempt by the Commonwealth to subpoena
Thereafter, the Commonwealth filed a petition under G. L. c. 211, § 3, in the county court, seeking review by a single justice of the denial of its Lampron motion. Alternatively, it requested leave to pursue an interlocutory appeal from the allowance of the defendant’s motion to suppress. See Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). The single justice denied the Commonwealth’s petition (from which the Commonwealth did not appeal),
Discussion, a. Defendant’s standing. The Commonwealth claims the defendant lacks standing to challenge the issuance of the subpoenas because the subpoenas concern telephone records of a third party, the facility, and because in any event the defendant had no reasonable expectation of privacy in his telephone calls. We disagree. Although the recordings are, in a proprietary sense, those of the facility rather than the defendant, the defendant has a direct interest in them because they consist of his own conversations with family and friends.
1. Subpoenas by statute and rule. General authority for issuing subpoenas in criminal cases is granted by G. L. c. 233, § 1
The earliest statutory authority for issuing criminal subpoenas — a precursor to G. L. c. 233, § 1 — granted such power to justices of the peace. See St. 1783, c. 51, § 2 (justices of peace “authorized and impowered to grant subpoenas for witnesses in all criminal causes pending before” various courts). A subsequent version of that statute provided that, unless in connection with a “complaint brought before himself,” a justice of the peace could issue a subpoena in a criminal case only at the “request” of a prosecutor or defendant for “witnesses to appear at any court ... to give evidence.” St. 1791, c. 53.
Through a recodification of the Massachusetts statutes in 1836, justices of the peace retained their authority to issue subpoenas at
Following the 1836 recodification of our statutes, the next major development in our law of criminal subpoenas came in 1979, with the promulgation of the Massachusetts Rules of Criminal Procedure, 378 Mass. 842 (1979). The Reporters’ Notes to Mass. R. Crim. P. 17 explain that the mie “is for the most part in
2. Rule 17 subpoenas. Rule 17 (a) (1) and (2) — consistent with G. L. c. 233, § 1, and G. L. c. 277, § 68 — empower a court clerk or any person authorized by statute to issue a summons,
Where role 17 (a) (2) departs from earlier Massachusetts law is in authorizing the production of subpoenaed records “within a reasonable time prior to the trial or . . . when they are to be offered in evidence” (emphasis added), when the court so directs. The change was “not intended to permit the use of summonses to subvert the discovery role, Mass. R. Crim. P. 14,” as amended, 444 Mass. 1501 (2005), but “to permit the court to avoid delay where the production of many books, papers, documents, or other objects would delay the proceedings if not ordered until the . . . commencement” of the trial or evidentiary hearing. Reporters’ Notes to Mass. R. Crim. P. 17 (a) (2), supra at 1522. Accord Commonwealth v. Mitchell, supra at 791. See 2 C.A. Wright, Federal Practice and Procedure § 274, at 241-242 & n.15 (3d ed. 2000) (although most of Federal role 17 [c] “was a restatement of prior law,” its allowance of either side to inspect subpoenaed records “prior to the trial” was “an innovation,” meant to expedite trial by providing time and place before trial for inspection of subpoenaed materials).
Unlike role 14, which governs discovery between the parties, role 17 allows for pretrial access to records from third parties. See Commonwealth v. Dwyer, 448 Mass. 122, 140 n.22 (2006); Lampron, 441 Mass. at 268. That access is potentially available to both prosecutors and defendants. See Martin v. Commonwealth, 451 Mass. 113, 123 n.20 (2008); Commonwealth v. Draheim, 447 Mass. 113, 118 n.12 (2006); Commonwealth v. Mitchell, 444
In Lampron, we concluded that a party seeking pretrial production of third-party records must file a motion seeking prior judicial approval. See Lampron, 441 Mass. at 270 (only judge has authority, on filing of motion, to issue subpoena for records prior to trial).
c. Commonwealth’s subpoena. The Commonwealth raises several claims regarding the use of its subpoena power in this case. First, it contends that it was authorized, under G. L. c. 277, § 68, to issue the February subpoena without seeking prior judicial approval under Lampron because G. L. c. 277, § 68, authorizes it to subpoena any third-party records as long as the return date coincides with an evidentiary hearing, as the return date for the February subpoena did: it coincided with the scheduled (although not held) probable cause hearing.
Second, the Commonwealth suggests that a reference we made in Lampron to G. L. c. 277, § 68, shows that the Commonwealth may use G. L. c. 277, § 68, instead of mie 17 (a) (2), to obtain third-party records before trial. The Commonwealth is not correct. In Lampron, the Commonwealth argued that defense counsel’s affidavit filed in support of a motion to subpoena documentary evidence was flawed because it included facts not within counsel’s personal knowledge. Lampron, 441 Mass. at 270. In explaining that we were “disinclined to give a hypertechnical reading” to the requirement that such an affidavit be made on personal knowledge, see Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004), we referred to a prosecutor’s authority under G. L. c. 277, § 68, to issue a subpoena under his or her own signature, with no required showing of personal or any other knowledge on the prosecutor’s part. See Lampron, supra at 270-271. The reference was intended only to illustrate the point that, in view of a prosecutor’s ability to issue a records subpoena (for trial or an evidentiary hearing) with no showing of personal knowledge, it would be inappropriate to require a far more onerous showing from the defendant under rule 17; we did not mean to suggest that a prosecutor may obtain third-party records before trial under G. L. c. 277, § 68. In fact, in other cases we have said it would be improper for a prosecutor to do so. See Commonwealth v. Mitchell, 444 Mass. at 798 n.17 (“it would be unethical for the Commonwealth to use [its] statutory authority
Third, the Commonwealth argues that, were it required to comply with Lampron, it should only have to do so where the records sought are privileged or confidential, and the defendant’s telephone calls in this case were neither. Again, we disagree. Although Lampron involved a defendant’s attempt to subpoena statutorily privileged records, we have applied the Lampron standard to requests for other types of records, not all of which were privileged or necessarily confidential. See Commonwealth v. Matis, 446 Mass. 632, 633, 635 (2006) (standard applied to request to inspect, measure, and photograph interior of complainant’s home); Commonwealth v. Reed, 444 Mass. 803, 807-808 (2005) (standard applied to request for medical records concerning complainant’s pelvic examination); Commonwealth v. Lam, 444 Mass. at 231 (standard applied to request for elementary and middle school attendance records). Moreover, the Nixon standard has been applied in Federal courts to both prosecutors’ and defendants’ efforts to seek a wide array of records, not all of which were necessarily confidential. See, e.g., United States v. Smith, 135 F.3d 963, 972-973 (5th Cir. 1998) (government sought from television station nonconfidential videotape recording of interview of defendant); United States v. Beckford, 964 F. Supp. 1010, 1031 (E.D. Va. 1997) (defendants sought, among other things, records from State and Federal correctional facilities concerning defendants themselves); United States v. King, 164 F.R.D. 542, 545-546 (D. Kan. 1996) (defendant sought patrol logs of security company hired to patrol bank where defendant accused of robbing automatic teller machine, as well as personnel records of bank employees); United States v. Walters, 558 F. Supp. 726, 727-728 (D. Md. 1980) (government sought from telephone companies records of telephone calls defendant made to his mother and former employer).
This result is consistent with Federal decisions upholding claims that prosecutors, without first obtaining judicial approval under
We therefore agree with the motion judge that the subpoena
The defendant has not claimed prejudice from the Commonwealth’s procedural misstep in failing to comply with rule 17 (a) (2) and Lampron. He was provided copies of the subpoenaed recordings early in the proceedings, and the Commonwealth has narrowed its interest in the defendant’s calls to a circumscribed period, from January 19 to March 6, 2007. See Commonwealth v. Smallwood, 379 Mass. at 888, quoting Commonwealth v. Hanger, 377 Mass. 503, 509 (1979) (no prejudice where, despite prosecutor’s interview of witness through misuse of G. L. c. 277, § 68, subpoena, existence of interview and statements of witness revealed to defendant “sufficiently in advance of trial to permit investigation”). See also United States vs. Eye, supra (no prejudice where defendant claimed no prejudice; was given copies of recordings shortly after government received them; and was in no worse position than if government had obtained recordings properly under rule 17 [c]); United States v. Noriega, 764 F. Supp. at 1494 (no prejudice where government provided recordings to defendant, “thereby precluding the ‘trial by ambush’ which results when a defendant’s statements hidden from discovery are suddenly used against him at trial”).
We remand the case to the county court for entry of an order vacating the Superior Court order allowing the motion to suppress and remanding the case for further proceedings consistent with this opinion.
So ordered.
We acknowledge the amicus brief filed by the Committee for Public Counsel Services in support of the defendant.
The pin list showed the time and date of the defendant’s telephone calls, as well as the telephone numbers of the recipients.
Pursuant to the telephone use policy of the Department of Youth Services secure unit at the Plymouth County correctional facility (facility), all telephone calls made by a juvenile to outside telephone numbers and conversations between the juvenile and visitors in the facility’s visitor’s room — all of which are apparently conducted by telephone — are monitored and recorded, with the exception of telephone communications between the juvenile and his attorneys or clergy. Plymouth County Correctional Facility (PCCF) 482, Inmate Telephone System (August 10, 2006).
On September 1, 2007, shortly after the defendant’s seventeenth birthday, he was transferred to the Cambridge jail, where he remains.
According to the facility’s telephone system administrator (who testified at a motion hearing we describe below), in his ten years at the facility he had received from various district attorneys’ offices “thousands” of subpoenas seeking recordings of inmate telephone calls, and he had mailed the requested recordings directly to those offices. He testified that he typically responded to approximately 150 such requests a month.
RuIe 17 of the Massachusetts Rules of Criminal Procedure, 378 Mass. 885 (1979), provides, in pertinent part:
“(a) SUMMONS. (1) For Attendance of Witness; Form; Issuance. A summons shall be issued by the clerk or any person so authorized by the General Laws. It shall state the name of the court and the title, if any, of the proceeding and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein.
“(2) For Production of Documentary Evidence and of Objects. A summons may also command the person to whom it is directed to produce the books, papers, documents, or other objects designated therein. The court on motion may quash or modify the summons if compliance would be unreasonable or oppressive or if the summons is being used to subvert the provisions of rule 14. The court may direct that books, papers, documents, or objects designated in the summons be produced before the court within a reasonable time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents, objects, or portions thereof to be inspected and copied by the parties and their attorneys if authorized by law.”
The defendant also claimed that the Commonwealth’s obtaining the recordings violated his rights of privacy and against unreasonable searches and seizures, protected by the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, and other constitutional rights as well. In addition, he claimed that the facility violated its policy of
General Laws c. 277, § 68, provides: “The attorney general and district attorneys may issue subpoenas under their hands for witnesses to appear and testify on behalf of the commonwealth, and such subpoenas shall have the same force, and be obeyed in the same manner, and under the same penalties, in case of default, as if issued by the clerk of the court.”
The Commonwealth also challenged the defendant’s constitutional claims, arguing, among other things, that the defendant lacked a reasonable expectation of privacy in the telephone calls because he was aware of, and consented to, the facility’s policy of monitoring and recording.
Because the Commonwealth did not appeal from this order of the single justice, there is no issue before us concerning the correctness of the judge’s denial of the Commonwealth’s motion pursuant to Commonwealth v. Lampron, 441 Mass. 265, 268-271 (2004) (Lampron).
Our decision in Matter of a Grand Jury Subpoena, 454 Mass. 685 (2009), which presented different facts, does not necessarily control the resolution of the defendant’s constitutional claims.
Whether that interest rises to the level of a constitutionally protected right is a matter that, as we have stated, the motion judge, with the assent of the parties, declined to address. It is thus beyond the scope of this appeal.
The court in United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991), further explained that, independent of a defendant’s interest in seeing that the rules of criminal procedure are followed, the court has its own interest in seeing that its subpoena authority is not usurped. See id. at 1493 n.13 (“The government’s argument that Noriega lacks standing to challenge a subpoena served on a third party is off point. The court need not look to any litigant in order to quash a subpoena which seeks to usurp the court’s exclusive authority to permit production of materials prior to trial”).
We note that in comparable cases, this court has considered the merits of claims by defendants that the Commonwealth has obtained records from third parties through the improper use of subpoenas, despite the Commonwealth’s claims that the defendant lacked standing. See Commonwealth v. Cote, 407 Mass. 827, 830 (1990) (defendant claimed in motion to suppress that Commonwealth misused grand jury subpoena to obtain telephone messages from third-party answering service where Commonwealth failed to present messages to grand jury; standing raised by parties in their briefs but not discussed by court); Commonwealth v. Smallwood, 379 Mass. 878, 888 (1980) (defendant claimed in motion to suppress that Commonwealth misused subpoena power under G. L. c. 277, § 68, to interview witness on nontrial day; standing raised in Commonwealth’s brief but not discussed by court. Cf. Commonwealth v. Vinnie, 428 Mass. 161, 178, cert. denied, 525 U.S. 1007 (1998) (where Commonwealth obtained telephone company records by administrative subpoena under G. L. c. 271, § 17B, defendant could challenge through motion to suppress whether Commonwealth had reasonable grounds to believe defendant used telephone for unlawful purpose).
General Laws c. 233, § 1, provides: “A clerk of a court of record, a notary public or a justice of the peace may issue summonses for witnesses in all cases pending before courts, magistrates, auditors, referees, arbitrators or other persons authorized to examine witnesses, and at all hearings upon applications for complaints wherein a person may be charged with the commission of a crime; but a notary public or a justice of the peace shall not issue summonses for witnesses in criminal cases except upon request of the attorney general, district attorney or other person who acts in the case in behalf of the commonwealth or of the defendant. If the summons is issued at the request of the defendant that fact shall be stated therein.”
Such authority included the power to issue subpoenas duces tecum. See Application of a Grand Jury of N.Y., 8 Mass. App. Ct. 760, 764 (1979).
Whether, and if so in what circumstances, a prosecutor has the authority to screen subpoenaed witnesses or records before presenting them to the grand jury is beyond the scope of this case. See generally 1 S.S. Beale, W.C. Bryson, J.E. Felman & M.J. Elston, Grand Jury Law and Practice § 6:2 (2d ed. 2008).
The Commonwealth suggests that R.S. (1836), c. 136, § 25, was enacted partly in response to the difficulty the Commonwealth had in producing witnesses for a trial in 1834 concerning the burning of a convent in Charlestown by an anti-Catholic mob. See The Charlestown Convent: Its Destruction by a Mob, on the Night of August 11, 1834, 29-31 (1870). Notwithstanding the Commonwealth’s dilemma in that particular case, even before the enactment of R.S. (1836), c. 136, § 25, a prosecutor could, as discussed above, obtain a subpoena for a witness from a justice of the peace, and such k subpoena could be enforced by legal process. See The Charlestown Convent, supra at 29-30; Commonwealth v. Buzzell, 16 Pick. 153, 156 (1834). In any event, the Commonwealth makes no claim that R.S. (1836), c. 136, § 25, was enacted to allow prosecutors to subpoena witnesses or records prior to trial or an evidentiary hearing.
Rule 17 of the Federal Rules of Criminal Procedure provides, in pertinent part, as follows (these provisions have not changed substantively since the version that existed in 1979, when our rule 17 was promulgated):
“SUBPOENA.
“(a) Content. A subpoena must. . . command the witness to attend and testify at the time and place the subpoena specifies . . .
“(c) Producing Documents and Objects.
“(1) In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.
“(2) Quashing or Modifying the Subpoena. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.”
“Summons” is synonymous with “subpoena” in our rules of criminal procedure. See Commonwealth v. Mitchell, 444 Mass. 786, 788 n.4 (2005).
This approach finds support in the language of rule 17, which, while not expressly requiring prior judicial approval, states that “[t]he court may direct” that the subpoenaed party produce the requested records before the court within a reasonable time prior to the trial or evidentiary hearing. See Mass. R. Crim. P. 17 (a) (2). The cognate Federal rule has similarly been construed to require prior judicial approval. See 2 C.A. Wright, Federal Practice and Procedure § 274, at 244-245 & n.15 (3d ed. 2000) (“Some courts hold that the court’s discretion must be invoked by motion in advance if a subpoena is to be made returnable in advance of the trial. This is an orderly and desirable procedure and one frequently followed . . .”). Accord 25 Moore’s Federal Practice par. 617.08[1], at 617-19 (3d ed. 2009) (Federal rule 17 [c] “includes a basis for subpoenaing documents for production before trial as long as judicial approval is received”).
In 2008, Federal rule 17 (c) was amended to implement the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(8) (2006). The amendment provides that a pretrial subpoena seeking “personal or confidential information about a victim may be served on a third party only by court order,” and requires that notice normally be given to the victim to allow him or her to move to quash, modify, or otherwise object. Fed. R. Crim. P. 17 (c) (3) (effective Dec. 1, 2008). The Commonwealth argues that this amendment shows that, before its enactment, judicial approval was unnecessary for the issuance of subpoenas for any sort of records. We disagree. Although the 2008 amendment represents the first explicit reference in the rule to the need for a party to obtain judicial approval, the amendment does more than that: it allows the victim to be heard when records concerning him or her are sought from another party. Moreover, even before the 2008 amendment’s enactment, Federal courts “frequently followed” the “orderly and desirable” practice of requiring judicial approval to effectuate the purpose of rule 17 (c). See 2 C.A. Wright, Federal Practice and Procedure, supra-, Moore’s Federal Practice, supra. We have uncovered no authority indicating that Federal courts ever have based the necessity of prior judicial approval on whether the records sought are privileged or confidential.
“[T]he party moving to subpoena documents to be produced before trial must establish good cause, satisfied by a showing ‘(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.” ’ ” Lampron, 441 Mass. at 269, quoting United States v. Nixon, 418 U.S. 683, 699-700 (1974). Regarding the first factor, we said a defendant “is required to make a factual showing that the documents sought are relevant and have evidentiary value,” and that “[p]otential relevance and conclusory statements regarding relevance are insufficient.” Id.
The Commonwealth conceded at oral argument that the April, May, and July subpoenas were defective because none of their return dates corresponded to a scheduled date for an evidentiary hearing.
We note that, when subpoenaing records before trial pursuant to rule 17 (a) (2) and Lampron, the records are to be delivered to the court where the judge may allow the parties and their attorneys to inspect and copy them; the subpoena should not direct that copies of the records be sent directly to the requesting party at the same time that they are submitted to the court.
Although the Nixon case involved a third-party subpoena issued by the
As we have noted before, “[a]ny informal extrajudicial process that exists ... by which a party involved in litigation may successfully obtain investigative materials that may be of help in preparing for trial, or may be useful during trial, is beyond the scope of this case.” Commonwealth v. Mitchell, 444 Mass. at 791-792 n.12.
In United States vs. Eye, U.S. Dist. Ct., No. 05-00344-01-CR-W-ODS (W.D. Mo. April 15, 2008), the court noted that, according to defense counsel, in the Federal Western District of Missouri both prosecutors and defense attorneys had previously taken a “liberal approach” to using Fed R. Crim. P. 17 (c), treating attorney-issued pretrial subpoenas as court orders, because of the attorneys’ status as officers of the court, and considering the rule satisfied so long as the issuing party provided the other side notice and copies of the materials delivered to the court. The court, however, admonished the government not to use a mie 17 (c) subpoena without a court order because of the possibility of subpoenaed records not being timely shared with the defense. Id.
The result we reach in this case — that, apart from grand jury proceedings, the Commonwealth must obtain judicial approval before seeking the production of records from a third party in advance of an evidentiary hearing or trial — is compelled by the authorities we have discussed above, including Mass. R. Crim. P. 17 (a). Under our current law, the only way for a prosecutor, postindictment, or a defendant to subpoena third-party records without first obtaining judicial approval is to subpoena the records for production on the first day of trial, on the theory that the party subpoenaing the records wishes to use them at trial. We are aware of the logistical problems and delay that such a procedure can pose for the parties and the court. To that end, the