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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Wanis, 426
Supreme Judicial Court of
Massachusetts,
Argued
Decided
Susan M. Prosnitz,
John P. Zanini, Assistant
District Attorney, for plaintiff.
Eva S. Nilsen,
Connie Karassas,
Carol A. Donovan and John F. Palmer,
Scott Harshbarger, Attorney
General, and William J. Meade, Assistant Attorney General, for the Attorney
General.
Before WILKINS, C.J., and
ABRAMS, LYNCH, GREANEY, FRIED,
WILKINS, Chief Justice.
This is the first of two cases we decide today concerning
the right of a criminal defendant to obtain an order requiring the production
of records of the internal affairs division of a police department.
The record contains neither a statement of agreed facts
nor an answer to the complaints, but the parties appear to agree that the
criminal charges are based on events substantially as alleged in the complaint
of the Boston police department, filed pursuant to G.L.
c. 211, § 3, with a single justice of this court. On the evening of
Subsequently, counsel for two of the defendants moved for
the production of evidence from the records of the police department and of the
Commonwealth. On
The
[1] The police department's petition for relief relied
solely on a claim that internal affairs records are exempt from disclosure as
public records. The police department
argues that the materials subject to the order are (1) "investigatory
materials," which G.L. c. 4, § 7, Twenty-sixth (f ), exempts from disclosure and (2) materials
relating to a person "the disclosure of which may constitute an
unwarranted invasion of personal privacy," which G.L.
c. 4, § 7, Twenty-sixth (c ), exempts from disclosure. The police department argues that the
defendants' right to disclosure, therefore, must be decided by the balancing of
interests prescribed in Commonwealth v. Fuller, 423 Mass. 216, 225-227,
667 N.E.2d 847 [426 Mass. 642] 1996), which concerned a
defendant's right of access to evidence protected by a statutory
privilege. (FN3)
The Commonwealth's petition under G.L.
c. 211, § 3, challenged the production order on the additional ground that it
had neither possession nor control of the documents, and that hence they were
not documents of an exculpatory nature that Mass. R.Crim.
P. 14, 378 Mass. 874 (1978), requires the prosecution to produce. The Commonwealth also contended that a judge,
in deciding whether to order production of records of an internal affairs
division of a police department, should apply the standards stated in
Commonwealth v. Fuller, supra, and asserted that the defendants had failed
to meet those standards. The
Commonwealth argues before us that it, not a judge, should decide whether the
records of an internal affairs division contain information that must be
disclosed in response to a motion to produce.
[2] 1. A
defendant's right of access to information gathered by an internal affairs
division does not turn on whether the investigatory materials are or are not
subject to disclosure as public records.
See G.L. c. 66, § 10,
generally requiring disclosure of public records, and G.L.
c. 4, § 7, Twenty-sixth, providing certain exemptions. Even if the custodian of internal affairs
documents could meet the statutory burden (G.L. c.
66, § 10 [c ] ) of showing with specificity
that an exemption applies, a criminal defendant may nevertheless have a right
to obtain such documents. In Bougas v. Chief of Police of Lexington, 371 Mass. 59,
64, 354 N.E.2d 872 (1976), we stated that, if a defendant wants information not
available as a public record, "such discovery should follow normal
procedures in criminal cases where its availability lies in the discretion of
the trial judge under standards developed by this court."
The defendants do not argue that the subject records are
public records under G.L. c. 4, § 7,
Twenty-sixth. Thus, the applicability of
statutory exemptions is not in issue here, as they [426 Mass. 643]
were in Globe Newspaper Co. v. Police Comm'r of
Boston, 419 Mass. 852, 858-859, 648 N.E.2d 419 (1995), and WBZ-TV4 v.
District Attorney for the Suffolk Dist., 408 Mass. 595, 603, 562 N.E.2d 817
(1990). The defendants are correct in
arguing that the fact that material is not a public record does not answer the
question of the defendants' right of access to information in the hands of a
police department's internal affairs division.
See Boston Police Superior Officers Fed'n
v. Boston, 414 Mass. 458, 466-467, 608 N.E.2d 1023 (1993); Bougas v. Chief of
Police of Lexington, supra; Town Crier, Inc. v. Chief of Police of Weston,
361 Mass. 682, 691, 282 N.E.2d 379 (1972).
[3][4] 2. The Commonwealth should not have been subjected
to an order to produce documents from the police department's internal affairs
division. There has been no showing that
the prosecutor had access to these materials, or that the police department was
obliged to provide its investigative files to the prosecution. Rule 14(a)(1) of the
Massachusetts Rules of Criminal Procedure, requires, among other things, that,
on motion, the prosecution must disclose "any facts of an exculpatory
nature within the possession, custody, or control of the prosecutor." The rule reaches police officers who are participants
in the investigation and presentation of the case and police officers who
regularly report to the prosecutor or did so in reference to a given case.
3. The Commonwealth and the police department rightly
acknowledge that a defendant has constitutional rights with respect to the
statements of persons who were witnesses to an alleged crime which are in the
government's possession. See Brady v.
[5][6][7] We reject any suggestion that all records of an
internal affairs division investigation, even if arguably relevant and
material, are to be produced automatically in response to a defendant's motion
under rule 14 or Mass. R. Crim. P. 17, 378 Mass. 885
[426 Mass. 644] (1979). We
also reject the Commonwealth's position that no such information need be
produced until either (a) the prosecution has reviewed the documents or (b) a
judge has conducted a judicial in camera review of them and, in each situation,
has found exculpatory evidence. We
conclude that, on motion pursuant to rule 17, a judge should normally issue a
subpoena to the internal affairs division of a police department directing it
to produce any statements of percipient witnesses. No special showing of relevance or need is
required for the production of statements of percipient witnesses. It is, of
course, true that a defendant, as in the two cases decided today, may cause an
investigation to be conducted, but that is not an adequate reason for declining
to order production of internal affairs records. (FN4)
As to percipient witnesses, whose statements are plainly relevant and may
be exculpatory (at least for impeachment), we see no reason generally to
protect their statements from disclosure, although in a specific case the
police department may be able to demonstrate that there is a good reason for
nondisclosure of some or all of a witness's statement. See, e.g., Commonwealth v. Hernandez,
421
[8] If a prosecutor has possession or control of the
records of an investigation by an internal affairs division of a police
department with respect to a particular matter, the prosecutor must review that
material in response to a rule 14 motion for the production of exculpatory
facts. If the prosecutor does not have
possession, custody, or control of such material, as we have said, a defendant
may obtain the statements of percipient witnesses by use of a rule 17 motion.
[9] What we have said disposes of the issues we must decide. We add the following as a guide with respect
to internal affairs division records not involved in this case. A defendant may not obtain information in the
possession of an internal affairs division, other than statements of percipient
witnesses, without seeking a summons for the production of that information
and, if production is opposed, without making a showing to a judge (normally by
affidavit) that there is a specific, good faith reason [426 Mass. 645]
for believing that the information is relevant to a material issue in the
criminal proceedings and could be of real benefit to the defense. Such a standard meets constitutional
requirements.
[10] An internal affairs division investigation of police
misconduct often requires the cooperation of people, police officers and
civilians, who may be reluctant to provide information against a police
officer. Although no promise of complete
confidentiality should be given, an assurance that such information will not be
disclosed except on a court order may reassure a person providing a
statement. A percipient witness, of
course, should recognize that he or she may well be called as a witness and
that his or her statements cannot be wholly confidential. An understanding that certain information is
to be made available only in special circumstances can help preserve the
integrity of the investigation and the morale of the police. A judge who has been provided with both (a) a
good faith, specific, and reasonable basis for believing that the records of an
internal affairs investigation (beyond statements of percipient witnesses) will
contain exculpatory evidence that is relevant and material to the issue of a
defendant's guilt and (b) good reason to deny production of the records, may
elect to conduct an in camera review of the records before deciding what
records, if any, should be disclosed.
Within constitutional limits and in accord with the standards that we
have set forth, the decision whether to order production of records of an
internal affairs division lies in the discretion of the trial judge.
4. A judgment shall be entered in the county court that
the order for production, dated
So ordered.
(FN1.) Filipe Monteiro
and Louis J. Gordon.
(FN2.) The orders, not quite in identical
words, appear on the docket sheets of the three cases and nowhere else. In quoting one of the orders, we have
eliminated abbreviations and various capital letters.
(FN3.) Neither the police department nor the
Commonwealth argues that a common-law privilege exists, or should be created,
to protect from disclosure internal affairs division information obtained from
percipient witnesses to the conduct alleged to be criminal. The defendants use the word
"privilege" only in the sense that they consider the statutory
exemptions of the public records law to be similar to privileges. "We have been especially reluctant to
create new privileges on the basis of speculation or conjecture as to the harms
which may result from our failure to do so." Babets v. Secretary
of Human Servs., 403
(FN4.) There must, of course, be a showing
that such an investigation is warranted.
Perhaps regulations concerning internal affairs investigations should
require that, when an investigation is requested, a defendant must file a
personal affidavit setting forth his factual claims.