Commonwealth v. Bing Sial Liang

Decision Date08 March 2001
Citation747 NE 2d 112,434 Mass. 131
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Dean A. Mazzone, Assistant District Attorney, for the Commonwealth.

Emily A. Karstetter (Michael B. Roitman with her) for the defendant.

Thomas F. Reilly, Attorney General, Emily R. Paradise, Assistant Attorney General, Stefanie Fleischer Seldin & others, for Attorney General & others, amici curiae, submitted a brief.


In this case we consider whether a judge may order the Commonwealth to disclose to a defendant the notes of a victim-witness advocate (advocate) based on the advocate's conversations with a victim or witness concerning the investigation or prosecution at issue.1 We conclude that the notes of advocates are subject to the same discovery rules as the notes of prosecutors. To the extent that the notes contain material, exculpatory information, Mass. R. Crim. P. 14 (a) (1) (C), 378 Mass. 874 (1979), or relevant "statements" of a victim or witness, as defined in Mass. R. Crim. P. 14 (d), 378 Mass. 874 (1979), the Commonwealth must disclose such information or statements to the defendant, in accordance with due process and the rules of criminal procedure. In all other respects, the notes are protected as work product pursuant to Mass. R. Crim. P. 14 (a) (5), 378 Mass. 874 (1979).

1. Background. The defendant was charged with two counts of assault and two counts of threatening to commit a crime. He later was charged with violating an abuse prevention order. Prior to trial, the defendant filed a motion for production of the notes of the advocate who spoke with the complaining witnesses. A judge in the Boston Municipal Court (motion judge) ordered the Commonwealth to disclose the notes to defense counsel. The Commonwealth filed a notice of appeal with the single justice and a written request for a stay of compliance with the order pending appeal. The Commonwealth also orally requested two different judges in the Boston Municipal Court to issue a stay. No action was taken by these judges. Pursuant to G. L. c. 211, § 3, the Commonwealth then filed a petition for relief in this court, requesting that a single justice vacate the order of the motion judge.

At a pretrial hearing, the Commonwealth informed the motion judge of its petition to the single justice and requested a stay. The judge denied the request as untimely and ordered the Commonwealth to produce the advocate's notes by 4 P.M. that day or suffer dismissal of the case.2 The Commonwealth filed an emergency petition with the single justice, requesting a stay of the motion judge's order. The single justice issued a stay of compliance with the discovery order and thereafter reserved and reported the case to the full court. We direct the single justice to vacate the order of the motion judge requiring the Commonwealth to disclose the notes of the advocate.

2. Jurisdiction. As a preliminary matter, we address the defendant's claim that review of the motion judge's discovery order under G. L. c. 211, § 3, is inappropriate. General Laws c. 211, § 3, grants this court "general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided." The motion judge's discovery order is not reviewable under any established procedure. See, e.g., Application of O'Brien, 403 Mass. 1005, 1006 (1988) ("Discovery orders generally are not appealable because the witness who asserts a privilege can decide not to comply with the discovery order, and the witness can obtain review from a sanction for noncompliance"). Cf. Mass. R. Crim. P. 15 (a), as appearing in 422 Mass. 1501 (1996) (providing Commonwealth right to interlocutory appeal from allowance of motion to dismiss or motion to suppress evidence). Although the Commonwealth could have ignored the order, risked an adjudication of contempt, and appealed from a sanction for noncompliance or the dismissal of the case, we will not require the Commonwealth to disobey a judicial order before an appeal can be taken. See District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 509 n.3 (1995) (given district attorney's position as elected official and chief law enforcement officer in his district, "it is proper for this Court to use its extraordinary powers under G. L. c. 211, § 3, to review the Superior Court's [order for production of prosecutor's file] at this stage rather than to limit the [district attorney] to an appeal to the full court after an adjudication of contempt"). Further, the issue reserved and reported by the single justice involves a matter of great import and continuing concern. See Blaisdell v. Commonwealth, 372 Mass. 753, 755 (1977). The single justice properly exercised her discretion under G. L. c. 211, § 3, to reserve and report the matter for review by the full court.3

3. Discussion. Advocates guide crime victims, their family members, and witnesses through the criminal justice process. They explain the process of a criminal prosecution; notify victims and witnesses of the scheduling of proceedings and the final disposition of a case; and provide information about the availability of witness protection, witness fees, financial assistance, and other social services, including creditor and employer intercession services, where appropriate. G. L. c. 258B, §§ 3, 5. They help victims and witnesses "cope with the realities of the criminal justice system and the disruption of personal affairs attending a criminal prosecution during a time of personal trauma." Commonwealth v. Harris, 409 Mass. 461, 470 (1991), citing G. L. c. 258B, §§ 3, 5.

Performance of these functions had traditionally fallen to the prosecutors themselves. According to the amici, when faced with an increase in crime in the United States during the 1960s and 1970s, and an increasing unwillingness of victims to cooperate in the criminal justice process due to the perceived insensitive treatment they received from law enforcement officials and the courts, many States created victim-witness assistance programs and hired personnel to focus directly and solely on protecting victims' rights.4

In 1983, Massachusetts approved a victims' bill of rights, providing crime victims the right to be informed of and participate in criminal prosecutions. See G. L. c. 258B, inserted by St. 1983, c. 694, § 2. The statute generally requires the staff of the district attorneys to ensure that victims and witnesses are afforded such rights. See G. L. c. 258B, § 3. At the time the bill was passed, most prosecutors' offices already employed advocates and provided the services that the law guaranteed.5

Advocates are included in the statute's definition of "prosecutor" and generally are employees of the prosecution.6 G. L. c. 258B, § 1, as amended through St. 1995, c. 24, §§ 2-4. See 1 L.D. Coffin, D.S. Krupp, & J.A. Healy, Pretrial Conferences, Pretrial Hearings and Discovery Motion Practice, Massachusetts District Court Criminal Defense Manual § 8.4, at 8-13 (Mass. Continuing Legal Educ. rev. 2000) (hereinafter Criminal Defense Manual) ("advocates are paid by the various district attorney [s'] offices [and] work closely with the prosecutors developing cases"). Clearly, the Legislature views advocates as a part of the prosecution team. Although we recognize that the definition of "prosecutor" in G. L. c. 258B, § 1, applies only for purposes of that chapter, we are guided by the Legislature's view as expressed in G. L. c. 258B, § 1, in addressing whether advocates' notes are subject to a discovery order.7 See Commonwealth v. Smith, 431 Mass. 417, 421 (2000), and cases cited (statutory language principal source of insight into legislative intent and purpose). We conclude that, consistent with the language and purpose of G. L. c. 258B, and the function that advocates perform as part of the prosecution team, the work of advocates is subject to the same legal discovery obligations as that of prosecutors and their notes are subject to the same discovery rules.

Pursuant to the due process requirements of the Federal and State Constitutions, prosecutors have a duty to disclose exculpatory facts within their possession, custody, or control, even without a request from the defendant. See United States v. Agurs, 427 U.S. 97, 106-108 (1976) (prosecutors' duty to disclose exculpatory evidence not limited to cases where defendant requests such evidence); Commonwealth v. Beal, 429 Mass. 530, 531 (1999) (prosecutors' duty to disclose extends to information in their possession or in possession of persons subject to their control); Commonwealth v. Daye, 411 Mass. 719, 728-729 (1992), and cases cited (where defendant has not requested exculpatory evidence, prosecutors violate constitutional duty only if they fail to disclose constitutionally material evidence). See also Mass. R. Crim. P. 14 (a) (1) (C). Prosecutors similarly are subject to a duty to disclose exculpatory evidence that advocates obtain from conversations with victims or witnesses, as advocates are agents of the prosecution. G. L. c. 258B, § 1. See Commonwealth v. Beal, supra at 532. Prosecutors have the primary burden of determining whether the advocates possess exculpatory information.8 Although advocates may have acquired extensive knowledge of the legal system, they generally are not attorneys and may be unable to determine whether their notes contain exculpatory evidence. Further, they may be unaware whether a victim or witness has communicated a different version of events to the police, grand jury, prosecutor, or others. Prosecutors therefore are responsible for asking advocates about their conversations with victims or witnesses, reviewing the advocates' notes, and disclosing any exculpatory evidence therein.9 Although the primary burden in this area rests on prosecutors, advocates themselves have...

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