Commonwealth v. Lampron
806 N.E.2d 72, 2004 Mass. LEXIS 141, 441 Mass. 265 (2004)
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Rule of Law:
An affidavit supporting a defendant's pretrial motion for production of third-party records under Mass. R. Crim. P. 17 (a) (2) may contain reliable hearsay, provided it identifies the source and establishes with specificity the relevance of the requested documents. This relaxes the personal knowledge requirement of Mass. R. Crim. P. 13 (a) (2) for such specific motions, but not for other pretrial motions.
Facts:
- 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.
- The defendant had knowledge of the alleged victim’s history of drug and alcohol abuse.
- The defendant claimed the alleged victim had voluntarily used drugs during the alleged rape.
- The alleged victim was transported by the defendant and subsequently admitted to a psychiatric facility due to anxiety about her relationship with the defendant.
- Over a two-year period, the defendant observed the alleged victim's pattern of consensual participation in drug use and sexual conduct with multiple partners.
- The defendant had personal knowledge of the alleged victim's termination of three pregnancies.
- Defense counsel’s affidavit asserted that the sought-after records likely contained information relevant to issues such as consent, the victim’s state of mind, and her motive to fabricate.
Procedural Posture:
- 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 in Superior Court.
- Defense counsel issued subpoenas duces tecum to several medical, psychiatric, and social services providers for records relating to the alleged victim's treatment, which the providers asserted were privileged.
- The Commonwealth filed a motion to quash the subpoenas in Superior Court.
- A Superior Court judge quashed the subpoenas because defense counsel failed to obtain prior judicial approval, but the order was "without prejudice" to seeking records following the Bishop-Fuller protocol.
- The defendant subsequently filed a motion for inspection of the same records, accompanied by defense counsel’s affidavit, in Superior Court.
- After a hearing, the Superior Court judge ordered the records produced.
- The Commonwealth filed a petition under G. L. c. 211, § 3, seeking relief from the Superior Court judge's order, to a single justice of the Supreme Judicial Court.
- A single justice of the Supreme Judicial Court denied the Commonwealth’s petition for relief.
- The Commonwealth appealed the single justice's decision to the full bench of the Supreme Judicial Court.
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Issue:
Does an affidavit supporting a defendant's pretrial motion for production of third-party records under Mass. R. Crim. P. 17 (a) (2) satisfy the "personal knowledge" requirement of Mass. R. Crim. P. 13 (a) (2) if it contains reliable hearsay, identifying the source, and establishing with specificity the relevance of the requested documents?
Opinions:
Majority - Spina, J.
Yes, an affidavit supporting a defendant's pretrial motion for production of third-party records under Mass. R. Crim. P. 17 (a) (2) may contain reliable hearsay, identifying the source, and establishing specific relevance, which satisfies the personal knowledge requirement of Mass. R. Crim. P. 13 (a) (2). The court found no abuse of discretion in the single justice's denial of relief to the Commonwealth. The court clarified that requests for documents from nonparties are governed by Mass. R. Crim. P. 17 (a) (2), as the Bishop-Fuller protocol for privileged records is not triggered until a privilege is asserted in response to a proper court order. Since Rule 17 (a) (2) is silent on the required showing, the court adopted the standards from its Federal analogue, Fed. R. Crim. P. 17 (c), which demands a showing of 'good cause.' This includes proving the documents are evidentiary, relevant, not otherwise procurable, necessary for trial preparation, and sought in good faith. While Mass. R. Crim. P. 13 (a) (2) generally requires affidavits to be based on personal knowledge, the court, considering that prosecutors can issue subpoenas over their own signature, relaxed this requirement for defense counsel's affidavits under Rule 17 (a) (2). Therefore, such affidavits may contain hearsay, provided the source is identified, the hearsay is reliable, and it establishes with specificity the relevance of the requested documents. This relaxation, however, is strictly limited to Rule 17 (a) (2) motions and does not extend to other pretrial motions. The Superior Court judge acted within his discretion in accepting the defense counsel's affidavit, which, though containing hearsay (including from the defendant), appeared sufficiently reliable and established relevance for the issuance of the summonses.
Analysis:
This ruling clarifies the threshold for pretrial discovery of non-privileged, third-party records in Massachusetts criminal cases, aligning state practice with federal standards. It balances a defendant's right to prepare a defense with the need to prevent 'fishing expeditions' and protect third-party privacy, even before privilege is asserted. By allowing reliable hearsay in affidavits for these specific motions, the court pragmatically acknowledges the realities of defense investigations, providing a clearer procedural path for obtaining potentially crucial evidence while still requiring a showing of specific relevance and good faith. The explicit limitation of this hearsay exception to Rule 17 (a) (2) motions prevents a broader erosion of the personal knowledge requirement for other pretrial proceedings.
