Com. v. Tripolone

Decision Date21 July 1997
Citation425 Mass. 487,681 N.E.2d 1216
PartiesCOMMONWEALTH v. Salvatore J. TRIPOLONE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Wendy J. Murphy, Boston, for New Hope, Inc.

John L. Holgerson, Committee for Public Counsel Services, for defendant.

The following submitted briefs for amici curiae:

Susan M. Basham, Boston and Fernando Laguarda, for National Network to End Domestic Violence & others.

Toni G. Wolfman, Claire Laporte, Audrey C. Mark, and Marie E. Burke, Boston, for the Domestic Violence Council.

Before WILKINS, C.J., and ABRAMS, LYNCH, O'CONNOR, GREANEY, FRIED and MARSHALL, JJ.

WILKINS, Chief Justice.

A judge in the Superior Court entered an order of contempt against the appellant, New Hope, Inc. (New Hope), a counselling center for victims of domestic violence and shelter for battered women. On motion of the defendant, who is charged with rape, armed assault in a dwelling, and violation of an order issued pursuant to G.L. c. 209A, another judge in that court had ordered that New Hope produce the counselling records of the alleged victim for an in camera inspection for exculpatory evidence. New Hope declined to comply with that order which had been entered pursuant to G.L. c. 233, § 20K, inserted by St.1986, c. 492 (§ 20K). The judge who entered the contempt order stayed the judgment pending appeal. We transferred New Hope's appeal here on our own motion.

Section 20K, whose substantive provisions are set forth in the margin, 1 states that, "[a] domestic violence victims' counselor shall not disclose [a] confidential communication without the prior written consent of the victim, except as hereinafter provided." A confidential communication of a victim is not subject to discovery in any civil, legislative, or administrative proceeding without the written consent of the victim. In a criminal proceeding, a confidential communication is "subject to discovery and shall be admissible as evidence but only to the extent of information contained therein which is exculpatory in relation to the defendant," and only after a judge shall have examined the confidential communication and determined that the communication contains exculpatory information.

Last year, we decided Commonwealth v. Fuller, 423 Mass. 216, 667 N.E.2d 847 (1996), which concerned the attempt of a criminal defendant to obtain from a sexual assault counsellor information that was protected by the privilege prescribed by G.L. c. 233, § 20J. We referred to the procedures that this court had established in Commonwealth v. Bishop, 416 Mass. 169, 617 N.E.2d 990 (1993), which are to be applied "when a defendant seeks access to any privileged records, including those protected by § 20J." Commonwealth v. Fuller, supra at 224, 667 N.E.2d 847. In our Fuller opinion, we undertook to set forth a better standard and to prescribe better procedures than we had in our Bishop opinion to be used when an alleged victim's privacy concerns must be balanced against a defendant's asserted needs for exculpatory information. Id. at 225, 667 N.E.2d 847. We said that we did not want a standard that "would result in virtually automatic in camera inspection for an entire class of extremely private and sensitive privileged material." Id. at 224, 667 N.E.2d 847. We, therefore, required that, before a judge should undertake an in camera review of privileged records, the defendant must demonstrate a good faith, specific, and reasonable basis for believing that the records will contain exculpatory evidence that is relevant and material to the defendant's guilt. Id. at 226, 667 N.E.2d 847.

The judge who issued the 1995 order to New Hope to produce the alleged victim's records did not have the benefit of our opinion in Commonwealth v. Fuller, supra, and understandably the standard that this court established in that case for the production of privileged information was not applied. We conclude that the nature of the statutory privilege established by section 20K,...

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13 cases
  • Com. v. Vasquez
    • United States
    • Appeals Court of Massachusetts
    • July 26, 2002
    ...or copies, to the courts, which the Bishop-Fuller4 screening procedures only begin to allay.5 See, e.g., Commonwealth v. Tripolone, 425 Mass. 487, 488-489, 681 N.E.2d 1216 (1997); Commonwealth v. Pare, 427 Mass. 427, 429-433, 693 N.E.2d 1002 (1998). See also Commonwealth v. Sheehan, 435 Mas......
  • Com. v. Pelosi
    • United States
    • Appeals Court of Massachusetts
    • July 10, 2002
    ...990. Where a defendant seeks access to confidential or sensitive material, a balancing test is employed. See Commonwealth v. Tripolone, 425 Mass. 487, 489, 681 N.E.2d 1216 (1997) (court concluded that the Bishop-Fuller protocol applied to communications which were considered by statute "con......
  • Commonwealth v Pelosi
    • United States
    • Appeals Court of Massachusetts
    • July 10, 2002
    ...at 186-187. Where a defendant seeks access to confidential or sensitive material, a balancing test is employed. See Commonwealth v. Tripolone, 425 Mass. 487, 489 (1997) (court concluded that the Bishop-Fuller protocol applied to communications which were considered by statute "confidential"......
  • Com. v. Vega, SJC-09699.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 23, 2007
    ...contains the word "privilege," they nonetheless have been held to create an evidentiary privilege. See Commonwealth v. Tripolone, 425 Mass. 487, 488-489, 681 N.E.2d 1216 (1997); Commonwealth v. Two Juveniles, 397 Mass. 261, 265, 491 N.E.2d 234 (1986). The question before us is whether the L......
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