Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

LAW OFFICES OF SAMUEL GOLDBERG GETS ASSAULT AND BATTERY CASE DISMISSED USING DISCOVERY TOOLS TO FIND EXCULPATORY EVIDENCE – PART 2

In my last blog, I laid out the facts for a case, which was recently dismissed because we were able to uncover exculpatory evidence from the Department of Children and Families. Our client was charged with Assault and Battery on a minor (his 7 year old step-son). The child made the initial disclosure of the abuse 2 years after the abuse was alleged to have occurred at a time when the Department of Children and Families were already involved. We motioned the court, pursuant to Massachusetts Criminal Procedure Rule 17; to issue a summons to DCF for their records regarding the child at the time abuse was alleged to have occurred.

Pursuant to Rule 17(a)(2) of the Massachusetts Rules of Criminal Procedure and the protocol established by Commonwealth v. Lampron, 441 Mass. 265 (2004) and Commonwealth v. Dwyer, 448 Mass. 122 (2006), the defendant must assert: 1) that the records sought are relevant and have evidentiary value; 2) the records are not otherwise procurable reasonably in advance of trial by exercise of due diligence; 3) the defendant cannot properly prepare for trial without the production and inspection of the records; and 4) and that the request is made in good faith and not a “fishing expedition.”

We argued that the prior DCF records were relevant because they would provide a snap shot of the child’s life at that time of the alleged abuse. At the time the alleged abuse occurred there was an open investigation into allegations of abuse by the father. The initial discovery provided by the District Attorney’s Office noted that a 51A was filed against the father at that time but that the investigation was found unsupported. Meaning, that at the time of the alleged abuse, DCF could not find any concerns with the child.

During a proper DCF investigation, the investigator not only speaks to the child but also contacts the child’s “collaterals.” In DCF terms, collaterals are people who have regular contact with the child would not necessarily be biased one or the other towards the parents. These collaterals can include teachers, pediatricians, daycare workers, neighbors, and school bus drivers. If DCF completed a proper investigation, the records would reflect any concerns that the collaterals might have had at the time of the investigation, especially regarding any visible injuries on the child. The fact that DCF found no concerns with investigating into separate allegations of abuse at the time the abuse in this case was alleged to have occurred raises doubts as to the credibility of the child and the father. If the alleged abuse occurred at or around the time the Commonwealth alleges there should be corroborating records from DCF.

When the allegations came out against our client, they were first reported to DCF, which was the first agency to investigate. After the investigation, the case was referred to the District Attorney’s Office. As part of the referral, DCF only sent the records from their most recent investigation, not the entire record. DCF does not release its records other than to the caretakers of the child involved at the time of the investigation or to certain members of law enforcement. These records are considered confidential and will only be released to a third party after an order from the court. Thus, Massachusetts Rule of Criminal Procedure Rule 17 was the only avenue we could legally obtain them.
As to the third requirement, we argued that these records were necessary because they potentially contained evidence that would either: clearly corroborate the Commonwealth’s story or severely call into question the child’s and father’s credibility. These records were essential to our defense theory in demonstrating that if the allegations were true, DCF would have seen the signs of abuse when it was alleged to actually happen.

Finally, we argued that this request for records was not merely a fishing expedition in hope to find that one piece of evidence that would exonerate our client. From the initial discovery, we knew that these records were out there. We also knew, based on our experience, that most likely these records would contain positive information for our case.
It begs the question, whether the DCF investigator, at the time of the disclosure, actually looked at the prior records at the time the abuse was alleged to have occurred. We know the District Attorney’s office did not. If they looked at the previous records, we would have been given a copy. In fact, it is quite possible that if the District Attorney’s Office had access to these records in the beginning my client would never have been charged with this crime in the first place.

In my next and final post regarding this case, I will discuss what were actually in the records and exactly how the case was dismissed.

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