Recent MASS SJC Cases Clarify Prosecution’s Duty to Provide Valuable Discovery to the Defense.

The prosecution’s duty to provide exculpatory evidence to the defense has long been a hotly contested issue.  To many, the prosecution seemed to have a “don’t ask, don’t tell” mentality, opining that if the prosecution did know about police misconduct then the prosecution did not have to disclose that conduct.  That attitude surely is not consistent with the goal of a criminal trial – to seek and find the truth.  But, two recent Mass SJC cases seem to make it clear that the prosecution has a broad affirmative duty to inquire into, and disclose, potential misconduct.

The issue of the prosecution’s duty to inquire into, and disclose, exculpatory evidence was recently addressed in Commonwealth v. McFarlane, 493 Mass. 385 (2024) and in Graham v. District Attorney for the Hampden District, 493 Mass. 348 (2024).

In Graham, the court found that:

i. The practice of the district attorney’s office of disclosing adverse credibility findings made about the department’s officer witnesses only on a discretionary basis violated the duty of the district attorney’s office to disclose.

ii. The practice of the district attorney’s office of withholding instances of officer misconduct from disclosure where a particular bad act cannot be attributed clearly to a particular officer violates the duty of the district attorney’s office to disclose.

iii. By failing to gain access to all documents known to have been reviewed by the DOJ, the district attorney’s office failed in its duty to investigate.

Graham, 493 Mass. at 350.

In its decision, the court “reemphasizes the importance of a prosecutor’s dual duties – to disclose and to investigate – in upholding the integrity of our criminal justice system. Graham, 493 Mass. at 350, citing Committee for Pub. Counsel Services v. Attorney Gen., 480 Mass. 700, 702-704 (2018).

The Graham court also noted that “[t]he Commonwealth’s duty to disclose exculpatory information to defendants walks hand-in-hand with its duty to inquire about such information.  Learning that a member of the prosecution team has been accused of misconduct triggers the Commonwealth’s ‘duty to conduct a thorough investigation to determine the nature and extent’ of that misconduct . . . . This duty of inquiry is premised on the prosecutor’s duty to ‘learn of and disclose’ any exculpatory evidence held by any member of the prosecution team . . . . In order to  protect the integrity of the criminal justice system and the rights of individual defendants, this inquiry must be taken seriously by the prosecution and conducted in a timely fashion.” Graham, 493 Mass. at 368.

 In McFarlane, the court held that (i) until a finding of liability has been made, a pending civil lawsuit constitutes an unsubstantiated allegation of police misconduct that does not tend to negate guilty and that a prosecutor has no duty to inquiry into pending civil lawsuits against a prosecution team member, and (ii) the duty of inquiry does require the prosecution to inquire about the existence of any findings of civil liability related to the performance of a police officer’s duties. McFarlane, 493 Mass. at 387.

Once the Commonwealth obtains exculpatory information, it must produce that information to the defendant. The prosecutor must do so “without regard to its impact on the case.”  CPCS v. Attorney General, 480 Mass. 700, 730 (2018).  “A prosecutor should not attempt to determine how much exculpatory information can be withheld without violating a defendant's right to a fair trial. Rather, once the information is determined to be exculpatory, it should be disclosed -- period. And where a prosecutor is uncertain whether information is exculpatory, the prosecutor should err on the side of caution and disclose it.” In the Matter of a Grand Jury Investigation, 485 Mass. 641, 650 (2020).

Beyond simple disclosure, the Commonwealth has a duty to learn of any favorable

evidence known to the others acting on the government’s behalf in the case. See Kyles v. Whitley, 514 U.S. 419, 437 (1995); Commonwealth v. Ware, 471 Mass. 85, 95 (2015) (“It is well settled that the Commonwealth has a duty to learn of and the schools would’ve been any exculpatory evidence that is held by agents of the prosecution team”). Prosecutors are thus required to make inquiries of all government agents who could be in possession of such information, including, among other sources, police and victim witness advocates.  See Commonwealth v. Liang, 434 Mass. 131, 135 (2001).  "It is well established that the Commonwealth has a duty to learn of and disclose to a defendant any exculpatory evidence that is 'held by agents of the prosecution team.'" Commonwealth v. Ware, 471 Mass. 85, 95 (2015), quoting Commonwealth v. Beal, 429 Mass. 530, 532 (1999). "This 'duty to inquire,' Commonwealth v. Martin, 427 Mass. 816, 823 (1998), is essential to the performance of a prosecutor's discovery obligations." Commonwealth v. Diaz, 100 Mass.App.Ct. 588, 593 (2022).

Members of the prosecution team are presumed to know of their own past misconduct, and that knowledge is imputed to the prosecutor for purposes of Brady purposes.  See Commonwealth v. Sullivan, 478 Mass. 369, 380 (2017) (criminalist’s knowledge at the time of his testimony that he had failed proficiency tests was in the possession of the prosecution team and required to be turned over); Commonwealth v. Scott, 467 Mass. 336, 349 (2014) (chemist’s knowledge of her own misconduct triggered duty to disclose).

Defense counsel should file appropriate motions in their cases and aggressively seek this exculpatory evidence in defending their clients.  It seems clear now that the courts should be holding the prosecution to its burden to produce this evidence – regardless of how damaging it may be to a prosecution’s case.

Counsel should read McFarlane and Graham closely, as well as the cases cited in each case, to fully understand the implications of each case.