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.
Topics
Practice areas
Questions Presented
- 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.
- Whether the defendant's proffer satisfied the ordinary relevance standard for obtaining unprivileged records.
- Whether the defendant's challenges to the jury instruction concerning fresh complaint evidence and to the Commonwealth's closing argument required reversal.
Holdings
- 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.
- 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.
- 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.
Key quotations
“We therefore have made clear that a judge cannot bypass the initial privilege analysis on which the Bishop procedure depends” (441 Mass. at 260-261)
“It is only where a privilege is asserted and found to be applicable that the review required by Bishop occurs.” (441 Mass. at 261)
“The credibility of the children’s accusations is the central issue in the case.” (441 Mass. at 263)
Factual background
The defendant was convicted of raping and indecently assaulting and battering his two children. Before trial, he sought Department of Social Services and Massachusetts Society for the Prevention of Cruelty to Children counseling records concerning the children. He proffered that the records might show coaching or repeated leading questions and might bear on accusations that changed over time and arose during an acrimonious marital dissolution. The motion judge denied access under the heightened Bishop relevance standard without first determining whether a privilege had been asserted and applied.
Procedural history
The defendant sought production of records concerning his two children, who were the alleged victims, arguing that the records could contain evidence of coaching or inconsistent statements relevant to credibility. The Superior Court denied the motion based on insufficient relevance without determining whether the records were privileged. A divided Appeals Court panel affirmed, and the Supreme Judicial Court granted further appellate review. The Supreme Judicial Court remanded for a privilege determination under the first stage of the Bishop protocol.
Remand instructions
The Superior Court must hold a further hearing to determine whether a privilege applies to any of the requested records. If a privilege applies, the judge must make written findings and the defendant may proceed to stage 2 of the Bishop protocol. If no privilege applies to some or all records, the defendant must be allowed access to the unprivileged records so he may determine whether being deprived of them at trial made the trial unfair.