Section Review

Commonwealth v. Bishop after Commonwealth v. Fuller: Is the Real Battleground Stage One?

Lee D. Flournoy practices civil and criminal trial law in Pittsfield.

A high stakes and emotional prosecution - a client accused of a crime even criminals despise, an accuser whose motives are clouded in mystery - what could make things more difficult for defense counsel?

Add the problem of navigating the procedural wonderland of the decisions in Commonwealth v. Bishop, 416 Mass. 169 (1993) and Commonwealth v. Fuller, 432 Mass. 216 (1996) to try to obtain arguably privileged records in order to reveal potential motive for a false accusation. The 10 years of evolving Supreme Judicial Court holdings in this area - driven by a desire to balance the alleged victim's or witness's right to privacy and the defendant's right to expose evidence of bias - have necessarily put last the shared interests of trial judges, counsel and victim advocates in simplicity, clarity and predictability. It is hard to be certain how one judge or the next will apply the procedural steps of the various stages required to obtain and use such records. As the procedures have been applied to civil cases where counsel seek privileged data about non-party witnesses and even opposing parties, more practitioners will need to learn how to manage Bishop.1

Historically, the Supreme Judicial Court had, pre-Bishop, emphasized the Sixth Amendment and Article XII rights to confrontation in permitting defense counsel to probe the bias of a witness. Commonwealth v. Stockhammer, 409 Mass 867 (1991). In the Bishop case, the court devised a five-step matrix for identifying and protecting the relevant interests when privileged records of an alleged victim are sought in discovery. It contemplated that the trial court would first determine whether a privilege exists as to the desired materials, and second, that the proponent of discovery would make a proffer of relevancy. If the proffer passed muster, the court was expected to review the materials in camera to determine whether the records should be revealed to counsel. In the third stage, subject to a protective order and as officers of the court, counsel were to have access for the limited purpose of determining whether disclosure of the records was necessary to a fair trial or, in other words to "preparing and mounting" a defense. At this stage, the court was required to accept written fourth-stage submissions and make written findings. The fifth and final step was, and remains, traditional questions of admissibility at trial.

In Fuller, the Supreme Judicial Court set about to clarify and improve upon Bishop in a fashion that made access to Bishop materials appreciably more difficult. Rape crisis centers mounted a vigorous challenge, building upon Pennsylvania v. Ritchie, 480 U.S. 39 (1987) that the pertinent statutes created a constitutionally based and inviolable privilege. Justice Greaney's opinion, acknowledging that balance between privacy and confrontation had proved "elusive," dodged the question of whether a privilege is ever absolute in the face of the confrontation clause. Although, the opinion suggests that the answer would be "no." Instead, it made clear that before a privilege as ironclad as Chapter 233, ß20J could be invaded, the "likely to be relevant" standard really meant "material," and "material" meant likely to create a reasonable doubt that would not otherwise exist.

The huge retrenchment in access to privileged material wrought by this opinion was highlighted by the opinion of the Appeals Court in Commonwealth v. Pare, 43 Mass App. Ct. 566 (1997), which, although decided after Fuller, retrospectively applied the Bishop standard in effect at the time of Pare's trial. The Pare opinion noted that evidence is to be considered relevant under Bishop if it only "throw[s] light," or "shed[s] light on an issue" or, "in connection with other evidence, it helps [the fact-finder] a little." It is relevant if it "could have been helpful" for a jury in determining whether a complainant was telling the truth. So long as evidence possesses any of these probative tendencies, even if it "is of marginal significance, we cannot say that it [is] irrelevant." Commonwealth v. Pare. This is, of course, an enormous difference from evidence likely to create a reasonable doubt that would otherwise not exist.

The Fuller court underscored that it did not expect routine in camera review of sensitive counseling records, but would expect the trial court to closely scrutinize an offer of proof (before permitting records to be summonsed) to determine whether the defense has shown a good faith, specific and reasonable basis to believe that the evidence in the records is exculpatory and likely to create a reasonable doubt that would not otherwise exist. This showing was not expected to be made until late in the discovery process, so that the defense could make the requisite showing that the information was not otherwise available. Subsequent holdings (see Commonwealth v. Oliveira, 431 Mass. 65 (2000)) expanded the Fuller protocol to "any privileged records."

While Fuller places a heavy burden on defense counsel to investigate and articulate a theory that will impress the court with its materiality, there are still some pathways to locate and articulate the leverage points to access exculpatory information. After the very recent case of Commonwealth v. Oliveira (II), 438 Mass. 325 (2003), it would appear that a great deal of that opportunity may lie at the front end of the process. The first task is that some showing of relevancy is necessary to get "potentially privileged" records into the courthouse for the Stage One showing. At least one Superior Court judge has carefully distinguished the showing of relevancy necessary to issue a summons and trigger the privilege inquiry (using the old Bishop standard, above) from the much greater (Fuller) showing of materiality necessary at the Stage Two. Commonwealth v. Spinney, Nos. 0077CR0983-85 (April 17, 2001) (Agnes, J.) In light of the Oliveira decision of February 2003, this appears to be the correct holding.2

The Supreme Judicial Court in Commonwealth v. Oliveira, 438 Mass. 325 (2003) made clear that the privilege stage is to be taken most seriously, and that privileges not asserted, preferably by the privilege holder, are not to be assumed or applied. The court makes clear that it welcomes the attempt of trial judges to devise means to ascertain the actual wishes of the privilege holders, recognizing that many may not get notice of interest in their records, do not have and cannot afford counsel, and may have interests that differ from the prosecutor, and that at least notice to the privilege-holder and perhaps appointment of counsel is appropriate. See also Commonwealth v. Neumyer, 432 Mass. 23, 36 n. 16 (2000). Commonwealth v. Pelosi, 55 Mass. App. Ct. 390, 397 (2002).

Defense counsel would thus be well advised to resist the Department of Social Services usual importunances to "concede privilege and skip to Stage Two," which may feel like forward progress, but under Fuller is an invitation to a black hole. Many DSS workers, psychiatric nurses and psychologists, even in inpatient facilities, as well as the plethora of ancillary mental health workers, do not have licensure sufficient to trigger a privilege, and, as Oliveira points out, the court has refused to and will not expand upon the legislative delineations of privilege.

Such expanded attention to Stage One will mean more work for prosecutors, DSS attorneys, defense counsel and judges as the battle in Fuller shifts from the offer of relevancy to much more careful scrutiny of how and by whom the record was created, whether the presence of others pierced the privilege, and whether the records contain "communications" to and from non-licensed persons or other materials that may not be privileged. See J.M.E. v D.R.T. J.M.E. v. D.R.T., No. 92-7982 (Nov. 1, 1996) (Middlesex, Botsford J.) for a thoughtful discussion of the possible attacks upon the scope of a privilege within a psychiatric record. See also Commonwealth v. Pare, 43 Mass App. Ct.566 (1997) text at and notes 12 and 13.

This effort will be fruitful for the defense. In Oliveira, four of the seven justices disapprove any withholding of non-privileged materials, considering that absent a privilege, the defense has broad rights of access under Mass. R. Crim. Proc. 14 (a) (2) and 17(a) (2), and that it is counsel's responsibility and prerogative, absent a privilege, to search a record not only for "its own immediate relevance but rather in its indication of the existence of some other avenue of fruitful inquiry."3

Stage Two is familiar territory for those who defend cases in which psychiatric data or other privileged records are pertinent. The detailed offer of proof must be handled with exquisite care if it is not to force the defense to give up its overall strategy. Strictly read, the requirement of a showing that the requested records are likely to create a reasonable doubt that would "not otherwise exist" (emphasis supplied) calls for the defense to broadcast its strategic approach and the perceived shortcomings of the defense without the records. Pare v Commonwealth, 420 Mass 216 (1995) rebuffed a defense request to file the offer of proof on an impounded basis in order to protect the defendant's Fifth Amendment privilege. There may be cases in which counsel will meet with real success in obtaining exculpatory material from DSS or pediatric records, physicians records alone having been held not to be privileged in Commonwealth v. Clayton, 52 Mass. App. Ct. 198 (2001). See Oliveira, 438 Mass. 325 (2003). In that case, counsel may make the agonizing choice to forego pursuit of further material in order to keep strategic approaches secret.

In such a case, making a record of the reasons for the decision and the defendant's concurrence in those decisions is important to avoid an ineffective assistance attack for not seeking all available records as in Commonwealth v. Oliveira, I and II.

A few suggestions for what may work in a Stage Two offer of proof can be gleaned from those opinions, almost horror-stricken in tone, of the Appeals Court and the Supreme Judicial Court, which confront the extremely exculpatory materials that have been found on appellate review to have been withheld or foregone in cases such as Pare and Oliveira4 as trial courts and counsel struggle to follow Fuller. The appellate courts are prepared to consider records of team interventions as almost "presumptively material" because of the susceptibility of young children to suggestive questioning. (Pare, at 43 Mass App. Ct 566 (1997) and 427 Mass. 427 (2000). Fuller cites prior false accusations, a tendency to fantasize or to have difficulty in distinguishing fantasy from reality, and bias of alleged victim or family against the defendant as examples of solid showings of relevancy and materiality, and later opinions recite these, almost talismanically, as reasons for disclosure. Family turmoil following upon the accusations, hospitalizations for psychiatric reasons, or treatment for cognitive difficulties post-accusation also appear as reasons the records should have been disclosed.5 

The more detail counsel can provide, the better the chances for disclosure. Diligent investigation, including, if appropriate, scrutiny of Probate Court and 209A records, motions for disclosure of team investigations, interviews with mutual friends or family of the defendant and alleged victim, if any, and material gleaned from non-privileged discovery can be used as a foundation. The expectation, or even a report of, mere inconsistencies in the victim's various accounts will not suffice. It would appear from the wording of the appellate opinions that to show Fuller relevancy and materiality, one need not be certain that the material in the records will offer the expected gloss on events, but one must offer a reason to believe that the events occurred and that they logically would appear in such records. In a situation in which alleged victim and the defendant are strangers, this task is daunting. If little or nothing is known about the family and its issues, counsel faces a wall of blank bricks. And extra creativity and persistence is required.

There are several situations with special problems. If the alleged victim has received treatment or lived out of state, consultation with counsel about the privileges that pertain in that jurisdiction is vital. Determining where a witness has received treatment can be exceptionally difficult, although Commonwealth v. Dexter, 500 Mass. App. Ct. seems to suggest at Note 5 that in the event of a focused query (i.e. the defendant is able to show that the witness is on psychotropic medication) it may be that the court will order production of the physician's name, although there seems to be stronger authority to the contrary in Commonwealth v. Beal, 429 Mass. 530, 531, 534 (1999) and in the text of Dexter.

Once the Bishop Stage Two submission has been prepared, the court undertakes the often laborious task of sorting out the multiple theories of relevancy and materiality that will necessarily be offered by the still-blindfolded defense. After the court's scrutiny of what may be voluminous records, a protective order may issue revealing relevant and material privileged documents to trial counsel. Counsel sees these for the purpose of preparing a Stage Four submission. If counsel is able to get to Stage Three and look at these documents, it will almost certainly be without permission to take copies or to discuss the records with the defendant. It is only upon filing of the Stage Four submissions by both parties that the court is expected to rule upon whether the disclosure of the material is necessary to a fair trial. After Fuller, the standard to reach Stage Three is so stringent that Stage Four would seem almost redundant, but according to Commonwealth v. Sheehan, Stage Four is in fact very much alive and necessary. In that case, a judge endorsed the Stage Two offer (filed pre-Fuller) as indicating a finding of relevancy, and one year later (five months after Fuller), a different judge re-endorsed the same motion, noting that there was no exculpatory evidence for use at trial. The SJC reversed, reading in a sophisticated manner the subtle suggestions in the young child's record indicating a tendency to fantasize. The court apparently applied Bishop throughout (despite the intervening Fuller decision), and cautioned that the parties should have made proper Stage Four submissions and the judge written Stage Four findings.

This sketch of some of the procedural pitfalls and opportunities inherent in Fuller compliance is not meant to discourage the already overworked, but to suggest that the extra effort is put forth in the service of resolving a tangle of legal issues that serves to engage, perplex and divide even the Supreme Judicial Court. It is to be hoped that the continuing efforts of counsel and judges on the trial and appellate levels will strike a balance in which that disfavored old chestnut of prosecutors' closings - "Why would [the victim] make this up?" - will need never again be met with a frustrated defender's silent curse at never having had a fair crack at answering the question.

End notes

1. See Donovan v. Prussman Essex Superior Court No. 99-175-D (Agnes, J.) It is an interesting decision and will quickly cure criminal lawyers of self-pity. It reads the patient-psychotherapist privilege statute Gl. c. 233 20B (c) as requiring quite a bit more of the proponent than of a criminal defendant because relevancy is balanced against the interests of justice. In that case, records of a motor vehicle tort plaintiff, who claimed what seemed a dubious set of psychiatric damages, were withheld in the interests of justice, with Judge Agnes noting that the legislative exception for persons putting their mental condition at issue was strongly conditioned upon balancing.[back]

2. Though the Fuller opinion at note 8 does not make this distinction, Oliveira makes clear that non-privileged material is not to be automatically screened by a judge for relevancy.[back]

3. The remaining three justices concurred only with the finding that no privilege was asserted, and rejected what they considered to be the attack by the majority opinion in dicta on the Bishop-Fuller protocol. Thus, Oliveira may not be the encouragement that it appears at first blush. [back]

4. It is tribute to the complexity of these issues that Pare and Oliveira have made multiple visits to appellate courtrooms and Commonwealth v. Sheehan, 438 Mass. 183 (2001), Commonwealth v. Neumyer, and Commonwealth v. Oliveira are either direct appellate review or further appellate review cases.[back]

5. Because the majority of the decisions to date were first tried before Fuller, the much more inclusive standard of relevancy of Bishop is used, but decisions like Pare and Oliveira make fairly clear that certain fact patterns are seen as compelling.[back]

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