The Supreme Judicial Court today issued its ruling in Commonwealth v. Matis, an interlocutory appeal regarding discovery of evidence in the possession of a third party. In short, Matis wanted his investigator to go into the juvenile alleged victim's house, where she claimed a rape had occurred, and take measurements, photographs, and make observations. The alleged victim's family didn't want him in the house. The judge allowed a motion for an order granting access to the house. The order was ultimately vacated because the homeowners had not been given notice of the hearing, and the case was remanded.
The opinion includes a nice explaination of the new Rule 14 regarding discovery, and Rule 17 regarding compelling evidence and witnesses. I am still troubled by the Court's continued assertion that Rule 17, as construed by Commonwealth v. Lampron, "is not a discovery tool." Lampron and its progeny talk about "fishing expeditions" and other unsavory practices by defendants. This is troubling, because the Commonwealth has the power of administrative subpoenas and other investigative resources not available to the defendant.
Under Lampron, the defendant must show that the material he is seeking to obtain under rule 17 "(1) . . . is evidentiary and relevant, (2) that it is not otherwise accessible in advance of trial by exercise of due diligence, (3) that he cannot properly prepare for trial without access, and the failure to obtain advance access may tend unreasonably to delay the trial, and (4) that the motion is made in good faith and is not intended as a general "fishing expedition."
The problem, of course, is that the defense attorney usually can not make such showings until he has seen the materials he is seeking. Employment records, school records and other sources of potentially valuable information about a witness are out of a defendant's reach unless he can say exactly what is in the records, before he has seen them.
Matis suggests a possible alternative to Rule 17 and Lampron. The Court writes,
In addition, rule 14(a)(2) provides that after receiving all of the discovery it is due from the prosecutor, the defense may move for the discovery of additional "material and relevant evidence," "without the limitation that it be in the possession, custody, or control of the prosecutor or other specified individuals."
It is not clear whether a defendant must show exactly what "material and relevant" evidence he is after, or if he may show that there may be material and relevant evidence in the materials he seeks. The Reporter's Notes to Rule 14 state:
Such a motion may only be made for discovery of material and relevant evidence that is not encompassed by the automatic discovery provisions; . . .
Since Rule 17 is about compelling production of known items and is not a discovery tool, Rule 14, entiteld "Pretrial Discovery", should be about finding out what is out there that may be material and relevant. When a defendant moves for discovery from the Commonwealth, he has to convince the judge that he is either entitled to the materials requested, or that the category of materials sought is likely to include something material and relevant. The whole point of asking for "discovery" is that you don't know for sure what is there.
The analysis and argument should be the same for discovery of materials in the possession of thired parties. So, if the defense wants to see what is in a witness's employment records, Matis seems to say that he should move for an order under Rule 14(a)(2) to compel production by the employer.
