By the Court.
This appeal causes us to reconsider the protocols established by Commonwealth v. Fuller, 423 Mass. 216 (1996) (Fuller), and Commonwealth v. Bishop, 416 Mass. 169 (1993) (Bishop), which govern a defendant’s pretrial access to statutorily privileged records of witnesses in criminal cases. The defendant was convicted by a jury of rape of a child by force, G. L. c. 265, § 22A, and indecent assault and battery on a child under fourteen years, G. L. c. 265, § 13B. Among several challenges to his convictions, he claims that the denial of his repeated requests to review the complainant’s therapy records was an abuse of discretion, and that the Bishop-Fuller protocols impose an unconstitutionally high burden on defendants, leading to the unavailability of exculpatory evidence and depriving defendants of their constitutional right to a fair trial. The defendant also asserts that the trial judge abused her discretion by admitting in evidence the complainant’s detailed testimony of prior alleged but uncharged sexual assaults by the defendant; that he was denied his rights of due process and confrontation when the prosecutor cross-examined him about a nontestifying codefendant’s confession that had been suppressed prior to trial; that his trial counsel was [124] ineffective in several respects; and that the judge abused her discretion in denying his motion for a new trial without a hearing. We granted the defendant’s application for direct appellate review.
For the reasons we explain below, we conclude that a number of errors at trial, in combination, require that we grant the defendant a new trial. As to the defendant’s challenge to the Bishop-Fuller protocols, we announce today a new protocol governing a defendant’s request to inspect statutorily privileged records of any third party. The new protocol, which replaces the Bishop-Fuller protocol, is not constitutionally compelled, and shall apply prospectively to all criminal cases tried after the issuance of the rescript in this case. Because the defendant is to receive a new trial, he shall have the benefit of the new protocol. We therefore do not consider his challenge to the rulings on his requests for access to the complainant’s therapy records.1
We turn first to the facts of this case. We then address the alleged errors at trial. Last, as described in more detail in the Appendix to this opinion, we outline the protocol applicable to pretrial requests for documents from nonparties in all criminal cases.
1. Factual background. In February, 2001, when the complainant was sixteen years old, she told her boy friend and then her parents that two of her cousins, the defendant and Frederick Lomberto, both four years older than the complainant, had raped and sexually assaulted her over a period of several years beginning in 1992 or 1993 when she was eight or nine [125] years old.2 On the evening she made these statements, the complainant attempted suicide. Her parents took her to Milford Hospital, where she was treated and released the following morning.
In March and April, 2001, the complainant met with several therapists, including a psychiatrist and a social worker, and underwent a psychiatric evaluation at Pembroke Hospital. She also received counselling at Wayside Counseling Center. After expressing suicidal thoughts to her boy friend, she met with her high school guidance counsellor, who in April, 2001, filed what appears to be the first report of suspected abuse pursuant to G. L. c. 119, § 51 A.
In May, 2001, the complainant underwent the first of two sexual abuse intervention network (SAIN) interviews.3 In the first SAIN interview conducted at the Milford police department, the complainant stated that abuse by the defendant and Lomberto had commenced when she was eight or nine years old and stopped when she was thirteen years old. She described several specific instances that she said had occurred when she was nine or ten years old, and stated that the defendant had raped or sexually assaulted her “almost fifty times.” Thereafter, in June, 2001, a physician conducted a child protection evaluation and physical examination of the complainant at the University of Massachusetts Memorial Medical Center.
In the second SAIN interview, conducted at the Bellingham police department in July, 2001, the complainant was questioned about a handwritten list she had prepared of alleged incidents of [126] sexual abuse by the defendant and Lomberto beginning in June, 1992, and ending in September, 1997. Among other incidents, the complainant described two rapes by the defendant in the summer of 1997. She said one had taken place at her home in July, 1997, one week before her thirteenth birthday; the second had taken place, she said, in the basement of her grandparents’ house during a yard sale in August, 1997. These allegations served as the basis for two sets of indictments against the defendant, charging him with rape of a child by force and indecent assault and battery on a child under fourteen years.4’5
2. Procedural background. In May, 2003, the defendant’s motion for severance from his codefendant Lomberto was allowed. Before the cases were severed, the defendant and Lomberto filed several joint motions seeking access to the complainant’s therapy records in accordance with the procedures set forth in Bishop, supra at 179-183. Two judges in the Superior Court denied the motions, concluding that the defendants had not demonstrated a sufficient basis for ordering in camera review of the records.6 Their motion for reconsideration was denied.
[127] The defendant’s trial commenced on January 9, 2004; the jury deliberated for three days, and returned guilty verdicts on the indictments relating to the August, 1997, incident only. Because the jury failed to agree on a verdict on the indictments relating to the July, 1997, incident, the judge declared a mistrial as to those indictments.
Lomberto’s trial commenced on January 21, 2004, immediately following the conclusion of the defendant’s trial. When the jury could not reach verdicts on any of the eleven charges, the judge declared a mistrial. Before his retrial, Lomberto filed a renewed Bishop motion for access to the therapy records of the complainant. A different judge in the Superior Court allowed the motion, ordered all of the complainant’s therapy records produced for in camera review, and subsequently permitted Lomberto and his counsel to review and copy certain records.7 In September, 2004, a jury returned guilty verdicts against Lomberto on two of the rape charges and three of the indecent assault and battery charges and verdicts of not guilty on four of the rape charges and two of the indecent assault and battery charges.
In December, 2004, the defendant’s counsel filed a motion for a new trial, arguing among other things that the denial of access to the records had deprived the defendant of a “viable defense to the charged offenses” because the redacted records introduced at Lomberto’s second trial reflect that the complainant “repeatedly and consistently reported” that the alleged abuse occurred several years before the defendant turned seventeen years old, and “directly contradict” the complainant’s testimony at the defendant’s trial that the alleged abuse had occurred in July and August of 1997. See note 5, supra. The judge denied the defendant’s motion for a new trial without a hearing. The defendant’s appeal from that ruling was consolidated with his direct appeal.
3. Prior bad acts. At the defendant’s trial the complainant, who was then nineteen years old, testified first about the two [128] charged incidents, which allegedly occurred in July and August, 1997. Following this testimony, the prosecutor asked the complainant to “estimate” how many times the defendant had “touched [her] in a sexual way” before August, 1997. The complainant responded, “Uncountable.” After the judge gave a limiting instruction,8 the prosecutor proceeded to question the complainant about seven different incidents of uncharged sexual abuse that allegedly had occurred before 1997, each of which the complainant described in detail.
The defendant contends that the judge abused her discretion in allowing the complainant to testify in such detail about the unindicted incidents and that this testimony “overwhelmed” the evidence of the two incidents with which the defendant was charged. We agree. The jury heard more about uncharged sexual assaults than they did about the crimes charged. Of the sixty-five transcript pages of the complainant’s direct testimony, fifteen pages covered the July and August, 1997, incidents, while twenty-one pages contained testimony of the uncharged assaults. Trial counsel’s cross-examination of the complainant, in turn, was directed primarily at discrediting her testimony of the uncharged conduct. Later, much of the defendant’s own testimony was devoted to denying the uncharged prior bad acts.
It is long established that evidence of uncharged criminal acts or other misbehavior is not admissible to show a defendant’s bad character or propensity to commit the charged crime, but may be admissible if relevant for other purposes such as “common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive.” Commonwealth v. Marshall, 434 Mass. 358, 366 (2001), quoting Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). In sexual assault cases, some evidence of uncharged conduct may be admissible to give the jury a view of the entire relationship between the defendant [129] and the alleged victim, and “the probative existence of the same passion or emotion at the time in issue.” Commonwealth v. Barrett, 418 Mass. 788, 794 (1994), quoting Commonwealth v. King, 387 Mass. 464, 470 (1982). It is left to the judge to determine whether such evidence has probative value and, if so, whether its probative value outweighs the risk of undue prejudice to the defendant. See Commonwealth v. Barrett, supra at 794-795; Commonwealth v. Helfant, supra at 225.
Some testimony by the complainant concerning the rapes and sexual assaults by the defendant spanning several years was probative of the relationship between the defendant and the complainant. Commonwealth v. Barrett, supra at 794. But even if relevant, a judge must guard against the risk that evidence of prior bad acts will divert the jury’s attention from the charged acts. See Commonwealth v. Baker, 440 Mass. 519, 530 (2003). Here, the jury’s attention was repeatedly drawn to the uncharged conduct. In his closing argument, the prosecutor emphasized for the jury the complainant’s testimony about “an ongoing basis of sexual assault” and suggested that her testimony was credible in part because it was “extremely detailed,” recounting “years of abuse.”
The Commonwealth argues that the judge’s limiting instructions were sufficient to cure any prejudice, and points to the judge’s subsequent ruling that the jury’s split verdict demonstrates that the jury were “not overwhelmed or inflamed against the defendant.” In the circumstances of this case, however, we conclude that the defendant has shown the requisite prejudice. See Commonwealth v. Barrett, supra at 795 (“It is implicit in the general rule regarding the inadmissibility of prior bad acts evidence that the admission of such evidence carries with it a high risk of prejudice to the defendant”). Allowing the complainant to testify in detail about each of seven uncharged incidents was excessive. The judge should have intervened to prevent the “danger of overwhelming a case with such bad act evidence.” Commonwealth v. Roche, 44 Mass. App. Ct. 372, 380 (1998) (noting judge’s obligation to guard against this danger). It was not, as the judge later recognized, that the defendant suffered “some prejudice by virtue of this evidence,” but that the prejudice was overwhelming. At a new trial the [130] judge should take care to limit any prior bad act testimony to establishing in summary fashion that the complainant claims that the abuse continued over a number of years.
4. Use of Lomberto’s admission at the defendant’s trial. In May, 2001, several months after she first made the allegations of the sexual abuse by her two cousins, the complainant’s father interrogated Lomberto, during which Lomberto admitted to the complainant’s allegations. The father had videotaped the interrogation.9 A judge in the Superior Court later concluded that the admission had been coerced and ordered it suppressed at Lomberto’s trial. At trial, the defendant denied all allegations that he had sexually abused the complainant. Toward the end of his direct testimony, his counsel asked whether he had “any knowledge” that Lomberto had raped the complainant, to which the defendant replied, “No, never.”
On cross-examination the prosecutor attempted to impeach this statement by showing that the defendant knew of Lomberto’s videotaped admissions. The judge ruled that the suppressed admissions could not be introduced, but allowed the prosecutor to refer to the admissions to impeach the defendant. In the ensuing examination, which is reproduced in the margin, the prosecutor elicited from the defendant an admission to the effect that he knew that Lomberto had been “forced” to admit that he had sexually abused the complainant.10 The judge im[131] mediately gave a limiting instruction that any evidence of Lomberto’s role in the crimes charged could not be used against the defendant. Lomberto was, of course, not a witness at the defendant’s trial.
The defendant challenges the judge’s ruling on the use of Lomberto’s coerced admission on grounds both constitutional (right to confrontation and due process) and nonconstitutional (Lomberto’s admission was involuntary and therefore unreliable and was not true impeachment material). As to his constitutional claims, the defendant relies in part on Bruton v. United States, 391 U.S. 123 (1968). That reliance is misplaced. The defendant and Lomberto were not tried jointly, see Commonwealth v. Adams, 416 Mass. 55, 57-58 (1993) (Bruton rule applies only at joint trial), and the defendant’s testimony about Lomberto’s admission did not explicitly implicate the defendant. See Commonwealth v. James, 424 Mass. 770, 782 (1997), quoting Richardson v. Marsh, 481 U.S. 200, 208 (1987) (Bruton rule limited to “cases where the codefendant’s statement ‘expressly implicate[s]’ the defendant, leaving no doubt that it would prove to be ‘powerfully incriminating’ ”). Nevertheless, the defendant should not have been questioned about Lomberto’s admission.
The connection between the defendant and Lomberto permeated the trial. It informed the prosecutor’s opening statement, and the complainant repeatedly testified about sexual abuse by her “cousins” or by “Sean and Fred.” Defense counsel’s repeated objections to evidence associating the defendant with Lomberto were overruled. Moreover, as the defendant points out, although the judge gave a limiting instruction, the judge did not instruct the jury that Lomberto’s admission had been coerced, which compounded the potential prejudice to the defendant.11 See Commonwealth v. James, supra at 783 (“contextual incrimination” occurs “where the circumstances of the case and the nature of the codefendant’s statement so obviously implicate the defendant in the crime itself as virtually to [132] constitute direct incrimination”). The judge’s limiting instruction did not effectively counteract the prejudice.
Furthermore, the rationale underlying our cases interpreting Bruton applies with some force to the prosecution’s use of Lomberto’s involuntary admission to impeach the defendant. A defendant’s own involuntary admission may not be used to impeach him. See Commonwealth v. Kleciak, 350 Mass. 679, 689-690 (1966). If the contextual incrimination from the use of a codefendant’s admission is strong enough, it can — and here it did — undermine the effect of a judge’s limiting instruction such that the use of the coerced admission becomes inherently unfair. Cf. Commonwealth v. Blake, 428 Mass. 57, 60 (1998); Commonwealth v. Rosa, 412 Mass. 147, 161-163 (1992), citing LaFrance v. Bohlinger, 499 F.2d 29 (1st Cir.), cert. denied sub nom. Meachum v. LaFrance, 419 U.S. 1080 (1974) (if wife’s decision to waive spousal privilege and testify at husband’s first trial was not voluntary, then use of her prior recorded testimony at husband’s second trial “offends fundamental fairness”); LaFrance v. Bohlinger, supra at 35-36 (due process clause prohibits use of defense witness’s coerced statement to impeach witness).
As to the nonconstitutional claims, Lomberto’s admission was not true impeachment material and should not have been admitted for that purpose. The defendant denied any knowledge that Lomberto had sexually abused the complainant. The prosecutor then used Lomberto’s admission to elicit from the defendant an admission that he knew that Lomberto had been forced to confess to the crimes. This was not inconsistent with the defendant’s testimony. The coerced admissions are unreliable hearsay not relevant to the question whether the defendant had committed the charged acts. See Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989), quoting Commonwealth v. Chretian, 383 Mass. 123, 136 (1981) (relevant evidence has “rational tendency to prove an issue in the case”). See also Commonwealth v. Kleciak, supra at 690 (“an involuntary confession does not become any more trustworthy . . . because the confession is used to impeach the credibility of the defendant rather than as substantive evidence”).
[133]*1335. Ineffective assistance of counsel. The defendant claims that his trial counsel was ineffective in several respects, of which we address two. First, in his opening statement counsel promised exculpatory testimony from a witness, Daniel LaBonte. But counsel had never spoken to LaBonte. That ineffectiveness was compounded, the defendant argues, when the prosecutor sought and the judge gave a missing witness instruction when defense counsel later decided not to call LaBonte to testify.
Second, he says, counsel agreed to the admission of an unredacted written report by a physician, who performed a child protection evaluation and physical examination of the complainant, which contained inadmissible hearsay. We examine the defendant’s claims under the familiar standard to determine “whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (Saferian), and, if so, “whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Id.
a. Missing witness instruction. We conclude that the defendant has satisfied both prongs of the Saferian standard with respect to this claim. Defense counsel told the jury in his opening statement that LaBonte and another witness, Doug Wiebers, would testify that they were with the defendant at his grandparents’ yard sale on the day of the second alleged rape in August, 1997, and that the defendant had not entered his grandparents’ house as the complainant had asserted. Wiebers did testify to those facts. But when LaBonte arrived at the court house, he explained to defense counsel (who had not previously interviewed him) that he had no memory of driving to the defendant’s grandparents’ house during a yard sale in August, 1997, seven years earlier. As a result, defense counsel decided not to call LaBonte.
On cross-examination the prosecutor’s first question to the defendant was, “Who is Daniel LaBonte?” When defense counsel objected to the question, the prosecutor explained at [134] sidebar that he was “laying the foundation” for a missing witness instruction, which the judge later allowed over defense counsel’s objection.12 In his closing argument, the prosecutor drew the jury’s attention to defense counsel’s promise in his opening statement that LaBonte would testify that he was with the defendant “on that day” in August, 1997, and that counsel had failed to deliver on his promise. As requested, the judge gave a missing witness instruction during her final charge to the jury, permitting the jury to draw a negative inference against the defendant because LaBonte had not testified as defense counsel had promised.13
It is fundamental that counsel should not make a promise to a jury about anticipated testimony from a witness he has not interviewed. Cf. Commonwealth v. DeCicco, 44 Mass. App. Ct. 111, 122 (1998) (“Defense counsel failed to meet a minimum standard of performance by announcing to the jury that the defendant might testify without first having met with him to discuss that possibility and to prepare him for it”). That error was compounded when defense counsel failed to challenge effectively the Commonwealth’s attempt to capitalize on the error. Had defense counsel explained to the judge that he did not call LaBonte to testify because LaBonte did not remember the events [135] of seven years earlier, the judge likely would not have given a missing witness instruction. See Commonwealth v. Zagranski, 408 Mass. 278, 287 (1990) (jury can only draw negative inference from failure to call witness if, among other things, “the witness’s absence [is] not explained in the circumstances of the case”); Commonwealth v. Gagliardi, 29 Mass. App. Ct. 225, 244 (1990) (judge should decline to give missing witness instruction if given plausible reason for nonproduction of witness). See also Commonwealth v. Tripolone, 57 Mass. App. Ct. 901, 902-903 (2003) (judge properly declined to give missing witness instruction where among other things witness likely would not remember more precisely than other witnesses events that occurred seven years earlier).
The prosecutor’s focus on LaBonte’s absence had an obvious impact on the jury. On the first day of their deliberations, the jury sent the judge a question concerning LaBonte’s absence and asked whether the Commonwealth could have summonsed LaBonte.14 In response the judge stated: “Mr. LaBonte was designated as a defense witness. You may not speculate as to why the Commonwealth, the prosecution did not call him as a witness, and you may not consider the fact that the prosecution did not call him in your deliberations at all.” The judge’s response, although correct, placed any negative inference from LaBonte’s absence solely at the feet of the defendant. It is noteworthy that the jury returned guilty verdicts on the August, 1997, indictments only. Had LaBonte not been mentioned, the jury might have accepted Wiebers’s version of events of August, 1997. Defense counsel’s initial error, combined with the missing witness instruction, was “decisive.” Commonwealth v. Franklin, 366 Mass. 284, 294 (1974). See Commonwealth v. Ortiz, 61 Mass. App. Ct. 468, 473 (2004) (reversing conviction where defendant advanced alibi defense and judge gave missing witness instruction regarding potential alibi witness; inference argued by prosecutor and reinforced by missing witness instruc[136] tian to jury “unfairly encouraged the jury to weigh [the witness’s] absence heavily against the defendant”).15
b. Admission of unredacted medical report. Defense counsel agreed to the admission of a physician’s unredacted report of the child protection evaluation and physical examination she conducted of the complainant in June, 2001. The defendant claims this amounted to ineffective assistance because the report contained highly prejudicial hearsay evidence.16 We agree.
The statute establishing the medical records exception to the hearsay rule “is not to be interpreted as rendering admissible all the contents of hospital records,” Bouchie v. Murray, 376 Mass. 524, 528 (1978); rather it makes admissible only those portions of records relating to “treatment and medical history.” G. L. c. 233, § 79. See Doyle v. Dong, 412 Mass. 682, 684 (1992). The majority of the report related to the treatment and medical history of the complainant. The report did, however, contain hearsay statements concerning the complainant’s sister, which [137] implied that she, too, might have been abused, inferentially by the defendant and Lomberto. These statements should have been redacted.
The report also included statements bearing on the question of liability that should have been redacted.17,18 See G. L. c. 233, § 79 (contents of hospital record referring to “question of liability” not admissible). Although a hospital record relating to treatment and medical history may be admitted “even though incidentally the facts recorded may have some bearing on the question of liability,” Commonwealth v. Concepcion, 362 Mass. 653, 656 (1972), quoting Cowan v. McDonnell, 330 Mass. 148, 149 (1953), ultimate conclusions concerning the charged crimes should be redacted. See Commonwealth v. DiMonte, 427 Mass. 233, 241-242 (1998) (notations on hospital intake form stating that complainant had been “assaulted” should have been redacted); Commonwealth v. Baldwin, 24 Mass. App. Ct. 200, 202-203 (1987) (admission of so much of hospital record that contained “diagnosis” of “sexual molestation” was error entitling defendant to new trial).
Counsel’s decisions will not be viewed as constituting ineffective assistance unless they are “manifestly unreasonable.” Commonwealth v. Adams, 374 Mass. 722, 728 (1978). See Commonwealth v. White, 409 Mass. 266, 273 (1991). The Commonwealth argues that defense counsel’s decision to agree to admission of the report was not manifestly unreasonable because he had a tactical reason for doing so: to ask the physician about [138] other sexual relationships that the complainant may have had that could have caused tissue scarring noted by the physician in her report. The defendant counters that his trial counsel could have cross-examined the physician about the tissue scarring without admitting the entire report in evidence. Had defense counsel complied with the procedural requirements of the rape-shield statute, G. L. c. 233, § 21B, he likely would have been permitted to question the physician on this issue.19 See id. (“Evidence of specific instances of a victim’s sexual conduct.. . shall not be admissible except. . . evidence of recent conduct of the victim alleged to be the cause of any physical feature, characteristic, or condition of the victim”). See also Commonwealth v. Cortez, 438 Mass. 123, 129 (2002); Commonwealth v. Cardoza, 29 Mass. App. Ct. 645, 648-649 (1990). Admission of the entire report was not necessary to the defense strategy. Defense counsel should have moved to redact the hearsay statements concerning the complainant’s sister and the statements naming the defendant and Lomberto as the perpetrators of the sexual abuse.
6. Relief for errors at trial. In the preceding sections we have identified several errors that occurred at the defendant’s trial. We have not considered whether any single error is sufficient to warrant reversal of the convictions because we conclude that the combination of errors requires that we grant the defendant a new trial. See Commonwealth v. Cancel, 394 Mass. 567, 576 (1985), quoting Commonwealth v. Wood, 380 Mass. 545, 550 (1980) (although errors taken individually not sufficiently prejudicial to require reversal of conviction, combination of errors resulted in substantial risk of miscarriage of justice, where court had “serious doubt as to whether this defendant was [unduly] prejudiced” by combination of errors); Commonwealth v. Mazzone, 55 Mass. App. Ct. 345, 353 (2002), quoting Commonwealth v. Mills, 47 Mass. App. Ct. 500, 507 (1999) (“While each error in isolation might not have required reversal, we conclude that the cumulative errors ‘fatally infected the judg[139] ment of conviction’ ”); Commonwealth v. Kines, 37 Mass. App. Ct. 540, 542, 543-544 (1994) (new trial required where case turned largely on credibility of witnesses, and combination of errors “created a risk that the evidence may not have been weighed in an unbiased manner”).
7. Protocol for pretrial inspection of third-party records. As noted earlier, the defendant challenges the denial of his pretrial and posttrial motions to review the complainant’s treatment records. He also raises a constitutional challenge to the Bishop-Fuller protocols: having reviewed the complainant’s treatment records introduced at Lomberto’s second trial, he asserts that adherence to the Bishop-Fuller protocols denied him a “viable defense” to the crimes for which he was indicted. We need not address his arguments because, in light of recent developments in our jurisprudence and continuing concerns about potential constitutional infirmities of some aspects of the Bishop-Fuller protocols, we announce today a new protocol that shall apply in every criminal case (the protocol is not limited to sexual assault cases) where a defendant seeks pretrial inspection of statutorily privileged records of any third party.
The protocol is grounded in Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979), which governs pretrial access to “books, papers, documents, or other objects” (hereafter records) held by a third party not under the Commonwealth’s control,20 and Commonwealth v. Lampron, 441 Mass. 265 (2004) (Lampron), where we set forth mandated procedures and standards for rule 17 (a) (2) motions. The protocol announced today adds new requirements to our previous cases discussing rule 17 (a) (2), and shall apply whenever a defendant seeks pretrial records from a third party that are covered by a statutory privilege. The new protocol replaces the Bishop-Fuller protocols.
In Lampron, we considered the final sentence of rule 17 (a) (2), which states: “The court may direct that books, papers, documents, or other objects designated in the summons be [140] produced before the court within a reasonable time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents, objects, or portions thereof to be inspected and copied by the parties and their attorneys if authorized by law.”21 We stated that rule 17 (a) (2) “is intended to expedite trial proceedings by avoiding delay caused by the often onerous task of responding to a summons of documents,” and emphasized that mie 17 (a) (2) must be satisfied before any documents of any kind may be summonsed from any third party prior to trial. Lampron, supra at 268-270.22
Lampron also addressed for the first time the standard that a party must satisfy before a judge orders the issuance of a rule 17 (a) (2) summons before trial. Because our rule is modeled on the analogous Federal rule, Fed. R. Crim. P. 17 (c), we adopted the standard articulated by the United States Supreme Court for issuance of a summons for pretrial production of documentary evidence, id. at 270:
“[T]he party moving to subpoena