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Victim Witness Records
In Commonwealth v. Liang, 434 Mass. 131 (2001), the SJC considered
the circumstances under which a defendant may obtain discovery
of the records of a victim/witness advocate. The Court held that
although advocates' records are generally protected as "work
product," 434 Mass. at 134-135, to the extent that they contain
exculpatory information, 434 Mass. 135-136, or witness statements
as defined in R. 14, Mass. R. Crim. P., they are discoverable.
434 Mass. 137-138. The court placed the "primary burden"
for determining whether the advocates' records contain exculpatory
information on prosecutors. 434 Mass. at 136. Prosecutors are
responsible for "asking advocates about their conversations
with victims or witnesses, reviewing the advocates 'notes and
disclosing any exculpatory evidence therein." Id. Defenders
need to be alert specifically to request statements or exculpatory
evidence found in the victim witness advocate's records when filling
out the pre-trial conference report.
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Loss of Potentially Exculpatory Evidence
In Commonwealth v. Harwood, 432 Mass. 290 (2000), the Court upheld
up a Superior Court judge's order suppressing the testimony of
a Commonwealth witness as a remedy for losing a document that
the defendant asserted was exculpatory. 432 Mass. at 290. In so
holding, it attributed mishandling of the file by the insurance
fraud bureau--an independent insurance industry funded investigatory
group--to the Commonwealth. Id. "When a defendant claims
he is prejudiced by missing evidence, a judge must weigh the materiality
of the evidence and the potential prejudice to the defendant,
as well as the culpability of the Commonwealth and its agents."
4323 Mass. at 295. The defendant argued that the lost documentary
evidence was material and the loss prejudicial as it deprived
him of the ability to impeach the credibility of a key Commonwealth
witness. 432 Mass. at 296-298. The Court agreed with the defendant's
assessment of the value of the lost evidence. It then turned its
attention to the culpability of the Commonwealth, writing, "[t]he
prosecutor's obligations for proper handling of exculpatory evidence
extends to material in the possession or control of members of
the prosecutor's staff and 'any others who have participated in
the investigation or evaluation of the case and who either regularly
report or with reference to the particular case have reported
to his office.'" 432 Mass. at 298, quoting, Commonwealth
v Woodward, 427 Mass. 659, 679 (1998). The trial court reasoned
that the Commonwealth had negligently failed in its duty to preserve
evidence that was needed to cross-examine the witness effectively;
therefor, the appropriate remedy was suppression of the witness's
testimony. The trial court declined to dismiss the indictment
due to the conclusion that the Commonwealth had not acted in bad
faith. The SJC agreed with the trial court's reasoning and sanction.
432 Mass. at 302-303.
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