A basic rule of criminal procedure is that the Commonwealth must turnover any and all exculpatory evidence (evidence which can lead the fact finder to believe the defendant is innocent) within their possession to the defense. In most cases there is rarely much exculpatory evidence, because if there were, the defendant would probably not have been charged in the first place. A problem arises when there is exculpatory evidence but it is not in the Commonwealth’s possession (even if commonsense says it should be).

Fortunately, Massachusetts Criminal Procedure Rule 17 exists. This rule and accompanying case law allows the Court to issue a summons to a third party to produce evidence, usually records, that the third party would not otherwise be required to produce upon request by the defense attorney. This rule is most often used by criminal defense attorneys to request medical and mental health records and records from the Department of Children and Families about the alleged victim. These records would otherwise be impossible to obtain by the attorney, as they are privileged and confidential; meaning against the law for the keeper of those records to release without an authorization from the alleged victim.

In our recently dismissed case, the client was charged with two counts of assault and battery on a minor and one count of aggravated assault and battery on a minor. The client was the stepfather of the minor child. The child, at the time of the abuse, was in the custody of the mother and the stepfather and had weekly visits with his father and stepmother. The mother and father had been separated for years prior to the alleged abuse, and were engaged in a very contentious custody battle. There were numerous restraining orders and 51As filed against one another alleging abuse against each other and abuse and neglect on their son. It was clear that each parent was bad-mouthing the other in front of the child and that the child was learning to use that information to manipulate each parent whenever necessary.

Our office became involved when the child, now nine years old and in the custody of the father and stepmother, allegedly, reported to the father that two years prior, the stepfather hit him with a belt and punched him in the face and stomach. The father reported this to the Department of Children and Families (“DCF”) and produced pictures of the child’s injuries. DCF did not seem to worry much about the fact that the father produced two year old pictures of the child’s injuries; pictures which he’d apparently just been holding on to for two years. DCF seemed satisfied with the father’s explanation that he did not want to report it because they were in a heated custody battle. Despite the fact that his explanation was completely counterintuitive, DCF and the Commonwealth believed the child when he relayed the allegations again directly to the DCF investigator and the district attorney’s office. It should also be noted that at the time these allegations were made, the mother had recently filed for increased visitation in probate court.

During the discovery phase of the criminal case, the Commonwealth turned over the police report, a videotaped interview of the child making the allegations, and the DCF records for their most recent investigation. The DCF records we were given noted that DCF was involved with the family at the time the abuse was alleged to have occurred and that numerous 51As had been filed against both parents before and after the alleged incident.

After speaking with the stepfather and mother and reviewing the initial evidence we quickly developed the theory (if you haven’t already) that the child was being manipulated and coached by the father in order to better his chances in the probate case regarding the mother’s request for more visitation. While this is a great defense theory, it could still fail if the child takes the stand and keeps to his story. At trial, we could bring out the father’s motive to coach the child through cross-examination, but the jury could still easily think – without the existence of any direct evidence of coaching – that the child had no motive to lie. Not to mention that the child had already convinced DCF and the Commonwealth that he was telling the truth. Considering what we were up against, we knew we needed a “smoking gun” if were going to convince a jury that the child was lying.

In part two of this blog I will discuss how we were able to find the smoking gun using Rule 17 and eventually get the case dismissed.

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