Commonwealth v. Pelosi

Summary

The Massachusetts Supreme Judicial Court held that the motion judge improperly bypassed the first stage of the Commonwealth v. Bishop protocol when ruling on the defendant’s request for Department of Social Services and Massachusetts Society for the Prevention of Cruelty to Children counseling records. The court remanded for a determination of whether any privilege applied, emphasizing that unprivileged records must be assessed under the generally applicable relevance standard. The court also rejected the defendant’s separate claims concerning jury instructions and prosecutorial closing argument.

Holdings

1. A judge may not bypass stage 1 of the Bishop protocol. The judge must determine whether a privilege was asserted and whether it applies to the specific records sought, and must state the privilege determination and reasons in writing.
2. The ordinary threshold for obtaining unprivileged records is whether the records have a rational tendency to prove or disprove an issue in the case. The defendant's proffer satisfied that threshold because the requested records could bear on the credibility of the children's accusations.
3. The defendant's arguments concerning the fresh-complaint instruction and alleged improprieties in the Commonwealth's closing argument were without merit and did not require reversal.

Questions Presented

1. Whether the motion judge erred by applying the Bishop protocol's heightened relevance standard without first determining whether a privilege had been asserted and applied to the requested records.
2. Whether the defendant's proffer satisfied the ordinary relevance standard for obtaining unprivileged records.
3. Whether the defendant's challenges to the jury instruction concerning fresh complaint evidence and to the Commonwealth's closing argument required reversal.

Disposition

remanded