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SJC-13430
COMMONWEALTH vs. DENZEL MCFARLANE.
Hampden. September 11, 2023. - January 23, 2024.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.1
Evidence, Disclosure of evidence, Exculpatory. Practice, Criminal, New trial, Disclosure of evidence, District attorney. District Attorney. Police Officer.
Complaint received and sworn to in the Springfield Division of the District Court Department on July 10, 2017.
The case was tried before Robert S. Murphy, Jr., J., and a motion for a new trial, filed on August 19, 2020, was heard by him.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Laurence J. Cohen for the defendant. Rebecca A. Jacobstein, Committee for Public Counsel Services, for Committee for Public Counsel Services & another. David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth. Patrick Hanley (Elizabeth K. Keeley also present) for State Police Association of Massachusetts.
1 Justice Cypher participated in the deliberation on this case and authored her concurrence prior to her retirement. 2
Shoshana E. Stern, Assistant District Attorney, for District Attorney for the Berkshire District & others, amici curiae, submitted a brief. John P. Zanini & Cailin M. Campbell, Assistant District Attorneys, for District Attorney for the Plymouth District & others, amici curiae, submitted a brief.
GAZIANO, J. On February 11, 2020, the defendant, Denzel
Mcfarlane, was convicted of unlawful possession of a firearm and
other related charges by a jury in the Springfield Division of
the District Court Department.2 Ten days later, Officer Daniel
Moynahan of the Springfield police department, who had arrested
and testified against the defendant, was found civilly liable
for false arrest and false imprisonment in an unrelated lawsuit.
See Bradley vs. Cicero, U.S. Dist. Ct., No. 3:18-cv-30039-MGM
(D. Mass. Feb. 21, 2020).
Upon learning of this civil lawsuit and verdict against
Moynahan from an online news publication, the defendant filed a
motion for a new trial, asserting that the existence of the
lawsuit against Moynahan, still pending at the time of trial,
was exculpatory information that the Commonwealth should have
disclosed to the defense, but failed to do so. The District
Court judge who had presided over the defendant's trial denied
his motion. The Appeals Court agreed that a new trial was
2 The defendant was also convicted of unlawful possession of ammunition and improper storage of a firearm. 3
unwarranted and affirmed the denial. Both parties then filed
applications for further appellate review, which we granted.
The question presented in this case is whether the
existence of a pending civil lawsuit against a police officer
must be disclosed by a prosecutor as exculpatory evidence. We
answer that question in the negative. 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 the guilt of a defendant. We therefore affirm
the denial of the defendant's motion for a new trial.
Finally, as in Graham v. District Attorney for the Hampden
Dist., 493 Mass. (2023), also released today, we address the
parameters of the prosecutorial duty of inquiry. Although a
prosecutor has no duty to inquire into pending civil lawsuits
against a prosecution team member, we conclude that the duty of
inquiry does require that prosecutors inquire about the
existence of any findings of civil liability related to the
performance of a police officer's duties.3
1. Background. a. Facts. On review of a judge's denial
of a defendant's motion for a new trial, "[w]e recite the
3 We acknowledge the amicus briefs submitted by the Committee for Public Counsel Services and American Civil Liberties Union of Massachusetts; the State Police Association of Massachusetts; and the district attorneys for the Plymouth, Berkshire, Bristol, Cape and Islands, eastern, Norfolk, northwestern, and middle districts. 4
relevant facts as found by the motion judge, supplemented by the
record." Commonwealth v. Yat Fung Ng, 489 Mass. 242, 243
(2022), S.C., 491 Mass. 247 (2023).
i. Officers' version. On the afternoon of July 7, 2017,
Moynahan and Officer Brian Phillips were on patrol when they
noticed a black Infiniti G37. After entering the Infiniti's
license plate number into the cruiser's mobile data terminal,
the officers learned that the license plate was registered to a
different vehicle and that the registration had previously been
revoked for lack of insurance. Both officers observed the
defendant park the vehicle, exit, and approach the front bumper,
leaving the driver's side door open. The officers could also
see a female passenger sitting in the front seat and at least
one child sitting in the back seat.4
After activating the cruiser's emergency lights and pulling
up to the Infiniti, Phillips got out of his cruiser and
approached the defendant, while Moynahan approached the
passenger's side of the Infiniti. Phillips asked the defendant
for his driver's license, which he did not have. Phillips then
brought the defendant toward the rear of the vehicle to question
him further. While walking past the open driver's side door,
4 It is unclear how many children were in the Infiniti. At trial, the officers testified that they observed one toddler in the back seat, while the defendant and the female passenger testified that there were two children in the back of the car. 5
Phillips observed a firearm lodged between the driver's seat and
the center console. When asked by Phillips if he had a license
to carry the firearm, the defendant stated that he did not.
Phillips then arrested the defendant, placing him in the cruiser
in handcuffs.
After Phillips informed Moynahan of the presence of the
firearm, Moynahan ordered the female passenger out of the
vehicle and placed her in handcuffs. Moynahan testified that,
upon witnessing this, the defendant yelled from the back of the
police cruiser, "She has nothing to do with it. It's not hers."5
Moynahan then uncuffed the female passenger. After the police
photographed the firearm inside the Infiniti, Moynahan removed
the firearm and secured it, emptying nine bullets from the
magazine. The officers permitted the other occupants of the car
to leave and transported the defendant to the police station.
During the booking procedure, the defendant stated that the
firearm had been loaded with four bullets.
ii. Defendant's version. The defendant testified to a
different version of events at trial in several respects. Most
notably, the defendant testified that he had no knowledge of the
firearm, having just purchased the Infiniti from a third party
shortly before his arrest. The defendant also claimed that he
5 Phillips similarly testified that the defendant shouted, "It's mine, not hers. Let her go." 6
had stepped out of his new vehicle to fix its splash guard when
Phillips suddenly approached him, grabbed and handcuffed him,
and placed him in the back of the cruiser. Phillips then
returned to the cruiser, holding a firearm, and asked the
defendant why he did not tell Phillips about it. The defendant
denied witnessing the female passenger being placed in
handcuffs, and he likewise denied that he yelled any statement
about the firearm from the back of the cruiser. Lastly,
although the defendant acknowledged that he had stated, while
being booked, that the firearm was loaded with four bullets, he
explained that he had been informed by Moynahan of this fact
when Moynahan, having disassembled the firearm in the police
cruiser, mentioned the presence of four bullets.
iii. Civil lawsuit. In March 2018, a civil lawsuit was
brought against Moynahan by Daniel Bradley, who had been
arrested during a motor vehicle stop in Springfield by Moynahan
and two other officers. In his action, Bradley asserted various
constitutional, statutory, and common-law claims against
Moynahan, including unlawful seizure and arrest, false
imprisonment, false arrest, excessive force, assault and
battery, malicious prosecution, abuse of process, and
intentional infliction of emotional distress. On February 21,
2020, Moynahan was found liable for false arrest and false 7
imprisonment. Shortly thereafter, the defendant learned about
this lawsuit from an online publication.
b. Procedural history. The defendant was arraigned at the
Springfield Division of the District Court Department on July
10, 2017. He was charged with eight counts, including unlawful
possession of ammunition, G. L. c. 269, § 10 (h); unlawful
possession of a firearm, G. L. c. 269, § 10 (a); and improper
storage of a firearm, G. L. c. 140, § 131L.6 The defendant's
trial began in February 2020. On February 11, the jury found
the defendant guilty of unlawful possession of a firearm,
unlawful possession of ammunition, and improper storage of a
firearm.
In August 2020, the defendant filed a motion for a new
trial, asserting that the allegations against Moynahan in the
civil lawsuit -- and indeed the lawsuit's very existence --
constituted exculpatory evidence requiring disclosure by the
Commonwealth. On July 2, 2021, after a nonevidentiary hearing,
the District Court judge who had presided at the defendant's
6 On February 7, 2020, the prosecutor entered nolle prosequis with respect to the other five counts: operation of an uninsured motor vehicle, G. L. c. 90, § 34J; operation of an unregistered motor vehicle, G. L. c. 90, § 9; operation of a motor vehicle without a valid inspection sticker, G. L. c. 90, § 20; operation of a motor vehicle with a revoked license as a habitual traffic offender, G. L. c. 90, § 23; and attaching a number plate assigned to another vehicle to conceal identification, G. L. c. 90, § 23. 8
trial issued a written decision denying the defendant's motion
for a new trial.
The defendant timely appealed from his convictions and from
the denial of his motion for a new trial. The Appeals Court
affirmed the defendant's convictions and the order denying the
defendant's motion for a new trial. See Commonwealth v.
Mcfarlane, 102 Mass. App. Ct. 264, 277 (2023). In May 2023, we
granted the parties' applications for further appellate review
limited to the issues raised in connection with the denial of
the defendant's motion for a new trial.7
2. Discussion. a. Motion for a new trial. In denying
the defendant's motion for a new trial, the motion judge
concluded that the then-pending civil lawsuit against Moynahan
"was not Brady material" that the prosecutor was obligated to
disclose, reasoning that the prosecutor was not aware of the
7 An order from a single justice of this court also permitted the parties in this case to brief whether the defendant is entitled to a new trial based on failure to instruct the jury on the issue of licensure under Commonwealth v. Guardado, 491 Mass. 666, 690-693, S.C., 493 Mass. 1 (2023). We review for whether the error was harmless beyond a reasonable doubt. See Commonwealth v. Bookman, 492 Mass. 396, 401 (2023). Here, Phillips offered uncontested testimony that the defendant admitted he did not possess a license to carry a firearm. See id. (when officer testifies to lack of license and there is "nothing in the record to suggest that the defendant disputed this testimony, or that the officer's credibility was in question," failure to instruct is harmless beyond reasonable doubt). Accordingly, we conclude that the defendant is not entitled to a new trial on this basis. 9
lawsuit's existence, the lawsuit was neither requested by the
defendant nor related to his case, and the lawsuit could have
been discovered by defense counsel through independent
investigation given that it was not impounded. See Brady v.
Maryland, 373 U.S. 83, 87 (1963). The judge further reasoned
that the lawsuit would not have been admissible at the
defendant's trial to impeach Moynahan but that, even assuming
that it would have been admissible and that the prosecutor had
been obligated to disclose it, the defendant would not have
suffered any prejudice because it "would have functioned only as
impeachment evidence in a case where the testimony of Moynahan
was duplicated by, and less essential than, the untainted
testimony of Phillips."
On appeal, the defendant argues that the motion judge erred
in denying his motion for a new trial, as the Commonwealth's
failure to disclose the pending civil lawsuit against Moynahan
violated the prosecutor's duty of disclosure. "The decision to
deny a motion for a new trial lies within the sound discretion
of the judge and will not be reversed unless it is manifestly
unjust or the trial was infected with prejudicial constitutional
error." Commonwealth v. Jenkins, 458 Mass. 791, 803 (2011).
"To obtain a new trial on the basis of nondisclosed
exculpatory evidence, a defendant must establish (1) that 'the
evidence [was] in the possession, custody, or control of the 10
prosecutor or a person subject to the prosecutor's control'; (2)
'that the evidence is exculpatory'; and (3) 'prejudice'"
(citation omitted). Commonwealth v. Sullivan, 478 Mass. 369,
380 (2017). Setting aside the motion judge's determination on
the first and third factors, we examine the second: whether the
existence of a pending civil lawsuit against a member of the
prosecution team, Moynahan, tended to exculpate the defendant.
See id. See also Matter of a Grand Jury Investigation, 485
Mass. 641, 649 (2020).
"To prevail on a claim that the prosecution failed to
disclose exculpatory evidence, the defendant must first prove
that the evidence was, in fact, exculpatory." Commonwealth v.
Healy, 438 Mass. 672, 679 (2003). Exculpatory evidence is "not
a narrow term" here, but rather includes all evidence that tends
to negate the guilt of the accused. Id., quoting Commonwealth
v. Pisa, 372 Mass. 590, 595, cert. denied, 434 U.S. 869 (1977).
This includes evidence that "provides some significant aid to
the defendant's case, whether it furnishes corroboration of the
defendant's story, calls into question a material, although not
indispensable, element of the prosecution's version of events,
or challenges the credibility of a key prosecution witness."
Matter of a Grand Jury Investigation, 485 Mass. at 647, quoting
Commonwealth v. Ellison, 376 Mass. 1, 22 (1978). 11
While our conception of exculpatory evidence is rightfully
broad, it is not boundless. The civil lawsuit at issue here
exceeds those bounds. By virtue of being both (1) civil, rather
than criminal, and (2) pending, rather than fully adjudicated,
pending civil lawsuits are not exculpatory and are not subject
to automatic disclosure requirements. See Graham, 493 Mass.
at .
We reach this conclusion for several reasons. Most
notably, the civil pleading stage only requires "factual
'allegations plausibly suggesting'" an entitlement to relief.
Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008),
quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).
Therefore, until there is a finding of liability, a pending
civil lawsuit may well be without merit. Moreover, the standard
for the initiation of a civil lawsuit is lower than the
corresponding standard and procedures for the initiation of a
criminal prosecution. See W.L. Prosser & W.P. Keeton, Torts §
120, at 893 (5th ed. 1984) (less needed to justify bringing
civil suit versus criminal prosecution). See also Commonwealth
v. DiBennadetto, 436 Mass. 310, 313 (2002) (defendant may move
to dismiss criminal complaint issued by magistrate for lack of
probable cause); Lataille v. District Court of E. Hampden, 366
Mass. 525, 532 (1974) (grand jury serve "dual function of
determining whether there is probable cause to believe a crime 12
has been committed and of protecting citizens against unfounded
criminal prosecutions"). As a result of these distinctions,
pending civil lawsuits would most accurately constitute
unsubstantiated allegations of misconduct and not exculpatory
information. See United States Department of Justice, Justice
Manual, tit. 9-5.100(6) (updated Jan. 2020)
[https://perma.cc/NKL2-YZ2J] (Justice Manual) ("Allegations that
cannot be substantiated . . . generally are not considered to be
potential impeachment information").
Here, even assuming Moynahan was a key prosecution witness,
the defendant would not have been able to meaningfully challenge
his testimony with what, at the time, amounted to
unsubstantiated allegations of police misconduct. Therefore,
the then-pending civil lawsuit did not tend to negate the
defendant's guilt, and the defendant's motion for a new trial,
predicated on the Commonwealth's failure to disclose exculpatory
evidence, was rightfully denied. See Sullivan, 478 Mass. at
380, citing Commonwealth v. Murray, 461 Mass. 10, 19, 21 (2011)
(information must be proved exculpatory).
b. The duty of inquiry and findings of civil liability.
In affirming the denial of the defendant's motion for a new
trial in this case, we caution that our ruling today is not
intended to signal to prosecutors that they may abstain from
inquiring into findings of civil liability. We take this 13
opportunity to provide guidance, in conjunction with our
decision in Graham, on the scope of a prosecutor's duty of
inquiry. See Commonwealth v. Martin, 427 Mass. 816, 823-824
(1998) ("duty to inquire" about exculpatory information is
essential to performance of prosecutor's discovery obligations).
More specifically, we conclude that findings of civil liability,
unlike pending civil lawsuits, fall within the scope of the duty
of inquiry.
The duty of inquiry reinforces the duty of disclosure:
because the prosecution must disclose all evidence in the
possession, custody, or control of the prosecution team that
"tend[s] to" exculpate defendants, the prosecution also must
inquire about the existence of such evidence among members of
the prosecution team. Matter of a Grand Jury Investigation, 485
Mass. at 649. See Mass. R. Crim. P. 14 (a) (1) (A), as amended,
444 Mass. 1501 (2005). See also Commonwealth v. Ware, 471 Mass.
85, 95 (2015), quoting Commonwealth v. Beal, 429 Mass. 530, 532
(1999) ("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'"). Just as
"the ultimate admissibility of the information is not
determinative" of a prosecutor's disclosure obligations,
admissibility is likewise not determinative of a prosecutor's 14
obligation to inquire. Matter of a Grand Jury Investigation,
supra at 653.8 The two duties are inextricably connected.
"'Reasonableness' is the only limitation on the
prosecutor's duty of inquiry." Commonwealth v. Frith, 458 Mass.
434, 440-441 (2010). Reasonableness is an objective standard --
"a prosecutor's belief that no inquiry is necessary or required
in the circumstances of a particular case, based only on the
prosecutor's assumption that he [or she] already has all of the
items and information subject to discovery, does not comport"
with the duty of inquiry. Id. at 440. Rather, to satisfy the
duty of reasonable inquiry, prosecutors are duty-bound to ask
other members of the prosecution team whether "all discoverable
materials relating to a particular case have been given to the
Commonwealth" and, subsequently, the defendant. Id. at 441 (by
failing to do so, prosecutor "plainly knew" he did not make
reasonable inquiry). See Martin, 427 Mass. at 824 (duty of
reasonable inquiry "extend[s] to information in possession of a
person who has participated in the investigation or evaluation
8 We stated, in Matter of a Grand Jury Investigation, 485 Mass. at 653, that "[exculpatory] information should be disclosed [even] to unrelated defendants so that the trial judge may rule on its admissibility if the defendant were to seek its admission." In other words, a trial judge cannot rule on the admissibility of impeachment evidence if unaware of its existence. See id. Prosecutors who engage in the analysis suggested by Justice Lowy's concurrence when fulfilling their duties of inquiry and disclosure proceed at their peril. 15
of the case and has reported to the prosecutor's office
concerning the case"). See also Commonwealth v. Campbell, 378
Mass. 680, 702 (1979) ("prosecutor has no duty to investigate
every possible source of exculpatory information on behalf of
the defendants," only those in possession of prosecution team).
The burden of the duty of inquiry rests solely with the
prosecution.
In short, the scope of the duty of inquiry is driven by
what "tend[s] to exculpate" the defendant, Matter of a Grand
Jury Investigation, 485 Mass. at 649, and demands that
prosecutors ask all members of their prosecution team for "all
discoverable materials" related to the defendant's case, Frith,
458 Mass. at 441. Because the purpose of our discovery rules is
to promote judicial efficiency and prevent trial by ambush, "it
is appropriate to take a comprehensive view" of a prosecutor's
investigative obligations. Commonwealth v. Correia, 492 Mass.
220, 224 (2023).
A bright-line rule is necessary to guide disclosure and
inquiry requirements related to civil lawsuits. Therefore, we
conclude that findings of civil liability made against
prosecution team members in the performance of their official
duties are subject to automatic disclosure and fall within the
duty of inquiry. Matter of a Grand Jury Investigation, 485
Mass. at 649. 16
A finding of civil liability is different from a pending
civil lawsuit, which, as noted supra, has a lower threshold than
criminal prosecutions and can be brought by various private
parties with varying motives. In contrast, an adjudicated
finding of civil liability is the result of judicial process,
where evidence has been weighed, arguments heard, and a decision
rendered. See Graham, 493 Mass. at (prosecutor cannot,
"consistent with their obligation to disclose exculpatory
information," decide not to disclose judicial finding that
officer's statements were not credible). See also Justice
Manual, supra at tit. 9-5.100(5)(c)(iv) (including "prior
findings by a judge" within potential impeachment information).
Cf. id. at tit. 9-5.100(6) (excluding "unsubstantiated"
allegations of misconduct from potential impeachment
information). Therefore, findings of civil liability can have
exculpatory value, while pending civil lawsuits cannot.
That is not to say that any finding of civil liability may
be exculpatory simply because it was made against an individual
who also happens to be a member of the prosecution team;
instead, the finding of civil liability must be related to the
performance of that member's official duties. See Matter of a
Grand Jury Investigation, 485 Mass. at 652 (in deciding whether
to allow impeachment of police officer witness with prior
misconduct, judge may consider "whether the prior misconduct is 17
probative of how the officer conducts police investigations").
Given that civil lawsuits can be brought by various private
litigants for a wide range of reasons, this consideration will
assist in distinguishing civil suits related solely to a police
officer's personal life from those relevant to his or her police
work. See id., citing Lopes, 478 Mass. at 606.
Here, had the finding of civil liability been made before
or during the defendant's trial, it would have fallen within the
scope of the prosecutor's duty of disclosure and, therefore, his
or her duty of inquiry. See Mass. R. Crim. P. 14 (a) (4), as
appearing in 442 Mass. 1518 (2004); Frith, 458 Mass. at 436 n.4
(Commonwealth's duty of disclosure "continues throughout
trial"). The misconduct alleged in the lawsuit was related
directly to Moynahan's performance as a police officer. See
Matter of a Grand Jury Investigation, 485 Mass. at 653.
Moynahan was sued and found liable for false imprisonment and
false arrest, among other allegations, and the defendant
claimed, in defense, that the gun had been tampered with or, in
other words, that he was falsely arrested by Moynahan. See
Ellison, 376 Mass. at 20. With these conflicting narratives
regarding how the arrest transpired, the defendant's conviction
relied on Moynahan's testimony and, therefore, on Moynahan's
credibility. See Murray, 461 Mass. at 22. Because the finding
of civil liability could have been used to impeach Moynahan and 18
was known to a member of the prosecution team, it potentially
would have been discoverable under Matter of a Grand Jury
Investigation, supra at 649, and subject to the duty of inquiry
under Frith, supra at 441.
Nonetheless, as explained supra, because the civil lawsuit
was only pending at the time of trial, it did not mandate
disclosure. We recognize that, had the defendant's trial
occurred a short while later, or if the findings against
Moynahan had occurred a short while earlier, the prosecutor
would have been obligated to inquire into and disclose the
findings made against Moynahan. However, "[w]henever the law
draws a line there will be cases very near each other on
opposite sides." United States v. Wurzbach, 280 U.S. 396, 399
(1930).
3. Conclusion. As the civil lawsuit against Moynahan was
pending at the time of the defendant's trial, it constituted an
unsubstantiated allegation of misconduct that did not tend to
negate the defendant's guilt, and the prosecutor therefore had
no duty to inquire into or disclose the lawsuit as exculpatory
evidence. Accordingly, we affirm the motion judge's denial of
the defendant's motion for a new trial.
So ordered. LOWY, J. (concurring, with whom Cypher, J., joins). I
agree with the court that a prosecutor has no duty to inquire of
prosecution team members whether they are facing any pending
civil allegations. I write separately to address how the
ultimate admissibility of information, although certainly not
dispositive of a prosecutor's obligation to inquire about that
information, nonetheless helps inform the contours of a
prosecutor's duty of inquiry.
"[T]he ultimate admissibility of the information is not
determinative of the prosecutor's Brady obligation to disclose
it," and neither is the ultimate admissibility of the
information determinative of the prosecutor's Brady obligation
to inquire of it. Matter of a Grand Jury Investigation, 485
Mass. 641, 653 (2020) (Matter of Grand Jury). See Brady v.
Maryland, 373 U.S. 83, 87 (1963). Certainly, a much broader
array of evidence than just what is admissible is both
discoverable and within the scope of a prosecutor's duty of
inquiry. See Commonwealth v. Beal, 429 Mass. 530, 531 (1999).
The ultimate admissibility of the information, however, is
not wholly divorced from the prosecutor's Brady obligation to
inquire of it. Rather, the ultimate admissibility of the
information provides valuable insight into the reasonableness of
the prosecutor's duty of inquiry. Indeed, in Matter of Grand
Jury, 485 Mass. at 652, our analysis of what constituted 2
exculpatory evidence was inextricably intertwined with a
discussion of the law of evidence as it related to the
admissibility of certain impeachment evidence. The court here
also seems to recognize that admissibility informs, but is not
dispositive of, questions of what constitutes exculpatory
evidence and of the reach of the prosecutor's duty of inquiry.
See ante at (implicitly looking to relevance and
admissibility in holding that finding of civil liability against
police officer must be related to officer's performance of his
or her official duties, and not his or her personal life, to be
discoverable); id. at (concluding that "[b]ecause the
finding of civil liability could have been used to impeach
Moynahan . . . , it potentially would have been . . . subject to
the duty of inquiry").
I embrace the point we made in Matter of Grand Jury, 485
Mass. at 650, that a determination whether to disclose
exculpatory information, being forward-looking, is distinct from
a determination whether a failure to disclose exculpatory
information deprived a defendant of a fair trial, which is a
backward-looking analysis. That being said, courts look closely
to admissibility in determining whether a failure to disclose
exculpatory information deprived a defendant of a fair trial,
indicating that questions of admissibility of evidence help
inform questions of the scope of the duty of inquiry and the 3
duty of disclosure. Cf. Commonwealth v. Jones, 432 Mass. 623,
633 (2000) ("To justify granting a new trial, the motion judge
must find that there was a substantial risk that the jury would
have reached a different conclusion had the 'newly discovered'
evidence been admitted at trial" [citation omitted]);
Commonwealth v. Tucceri, 412 Mass. 401, 413 (1992).
Where the analytical gap between what information is sought
and what information might be admitted in evidence is so great,
the improbability of the former leading to the latter provides
some limitation on the scope of the duty of inquiry. Although
the duty of inquiry is significantly broader than simply whether
a particular type of evidence would be admissible at trial, and
although the admissibility of evidence is never determinative of
the duty of inquiry, the ultimate admissibility of evidence can
be a helpful tool when assessing the reasonableness of a
prosecutor's duty of inquiry into the existence of that kind of
evidence. The more unrelated to the investigation, arrest, and
prosecution of a defendant that an unproven contention of
misconduct against a police officer on the prosecution team is,
the greater the risk of obligating a prosecutor to search for
evidence unlikely to have any effect on the underlying case.
See Wood v. Bartholomew, 516 U.S. 1, 6 (1995) (per curiam)
(holding State's failure to disclose witness's failed polygraph
test did not violate Brady in light of fact that "polygraph 4
results were inadmissible under state law, even for impeachment
purposes," and it was "mere speculation" as to how disclosure
might have led to otherwise admissible evidence); Hoke v.
Netherland, 92 F.3d 1350, 1356 & n.3 (4th Cir.), cert. denied,
519 U.S. 1048 (1996), citing Wood, supra (holding no violation
of Brady where prosecution failed to disclose witness interviews
that would likely have been inadmissible at trial and were,
therefore, "as a matter of law, 'immaterial' for Brady
purposes").
The ultimate admissibility of evidence is neither the
touchstone nor even a requirement of what constitutes
exculpatory evidence. Nonetheless, determining what constitutes
exculpatory evidence must take place with at least some
recognition of the law of evidence to be applied at trial.
Otherwise, the principle of reasonableness as a limitation on
the duty of inquiry would prove elusive. The more difficult the
boundaries of the prosecutor's duty to inquire are to gauge, the
more all those touched by investigation and prosecution of crime
–- criminal defendants, victims, police witnesses, and
prosecutors –- will be adversely affected. CYPHER, J. (concurring). I agree with the court that, in
the limited context of this case, the prosecutor had no duty to
inquire as to the unrelated, pending civil lawsuit because it
was not exculpatory evidence. I write separately, however, to
propose an end to the Bohannon rule, as outlined in Commonwealth
v. Bohannon, 376 Mass. 90 (1978) (Bohannon I), S.C., 385 Mass.
733 (1982) (Bohannon II) (collectively, Bohannon).1
Typically, "specific instances of misconduct showing the
witness to be untruthful are not admissible for the purpose of
attacking or supporting the witness's credibility." Mass. G.
Evid. § 608(b) (2023). Despite this bar, Massachusetts has
"chiseled a narrow exception" into the general rule, allowing
evidence of prior false rape allegations to impeach a witness's
credibility because, in special circumstances, "the interest of
justice forbids strict application of the [general] rule."
Commonwealth v. LaVelle, 414 Mass. 146, 151 (1993), citing
1 The Commonwealth raised Commonwealth v. Bohannon, 376 Mass. 90 (1978) (Bohannon I), S.C., 385 Mass. 733 (1982) (Bohannon II) (collectively, Bohannon), both in its brief and during oral argument. 2
Bohannon I, 376 Mass. at 94.2,3 Rooted in the misogynist belief
that women are prone to lying about sexual assault,
admissibility of evidence of prior false allegations pursuant to
Bohannon required a showing that "the witness was the victim in
the case on trial, her consent was the central issue, she was
the only Commonwealth witness on that issue, her testimony was
inconsistent and confused, and there was a basis in independent
third-party records for concluding that the prior accusations of
the same type of crime had been made and were false."
Commonwealth v. Sperrazza, 379 Mass. 166, 169 (1979), citing
2 The second exception to the general bar proscribing admission of specific instances of misconduct is the allowance of specific instances of a police officer's false statements in prior, unrelated matters if the officer's credibility is a critical issue at trial. See Matter of a Grand Jury Investigation, 485 Mass. 641, 651-652 (2020).
3 Besides Massachusetts, only three other States have provisions that specifically allow evidence of prior false accusations to be admitted: New Jersey, Virginia, and Rhode Island. Altantulkhuur, A Second Rape: Testing Victim Credibility Through Prior False Accusations, U. Ill. L. Rev. 1091, 1144-1146 (2018). The remainder of the States generally prohibit both inquiry into prior specific instances of misconduct on cross-examination and extrinsic evidence, allow inquiry on cross-examination but not extrinsic evidence, or allow both inquiry on cross-examination and extrinsic evidence to attack or support the victim's character for truthfulness. Id. at 1116-1117. Unlike Massachusetts's § 608(b), Rule 608(b) of the Federal Rules of Evidence permits a party on cross- examination of a witness to inquire into specific instances of prior conduct if probative of the witness's character for truthfulness, although except for criminal convictions under Fed. R. Evid. 609, extrinsic evidence is not admissible to prove specific instances of misconduct. Compare Fed. R. Evid. 608 with Mass. G. Evid. § 608(b). 3
Bohannon I, supra at 95. See Althouse, The Lying Woman, the
Devious Prostitute, and Other Stories from the Evidence
Casebook, 88 Nw. U. L. Rev. 914, 965 (1994) (explaining that in
Bohannon, "[o]nce again, our attention is drawn to the
victimized man and the untrustworthy woman").
In Bohannon I, the victim, who had an intelligence quotient
of sixty-three, provided inconsistent testimony that the
defendant and codefendant may or may not have raped her on the
night in question. Bohannon I, 376 Mass. at 91. To impeach her
credibility, defense counsel sought to cross-examine the victim
about whether she made prior accusations that other men had
raped her, and, as an offer of proof, referenced hospital
records that suggested that the complainant had made "a number
of unsubstantiated, and apparently false, accusations of rape."
Id. at 92-93. Concluding that the proffered evidence, if
believed, would have had a significant impact on the sole issue
of consent, the court reversed the convictions to allow the
proposed questions to be asked at a new trial. Id. at 95. The
court further explicated that the decision did not implicate the
rape shield statute, G. L. c. 233, § 21B, because the proposed
questions dealt with prior allegations of rape and were "in no
way sought to elicit a response concerning the complainant's
prior sexual activity or reputation for chastity." Bohannon I,
supra. Notably, on appeal after remand, the court discerned no 4
abuse of discretion in the trial judge's exclusion of the
hospital records because, although Bohannon I allowed extrinsic
evidence to prove prior false allegations of rape, the hospital
records at issue were inadmissible unreliable hearsay given that
they were "extremely sketchy, vague, inaccurate as to where the
information came from, contained hearsay piled upon hearsay,"
and were not related to the victim's diagnosis or treatment.
Bohannon II, 385 Mass. at 750.
While the Bohannon rule has only appeared in a limited
number of published rape and sexual assault cases, see Bohannon
and Commonwealth v. Nichols, 37 Mass. App. Ct. 332 (1994), the
problematic origin of the rule requires that the court reexamine
whether to continue its use. Although the Bohannon court
indicated that the decision should not "be viewed as indicating
any adherence to that 'part of a legal tradition, established by
men, that the complaining woman in a rape case is fair game for
character assassination in open court,'" it is difficult to
distinguish the holding from the continuing belief that women
lie about rape and sexual assault so thus have a character for
untruthfulness. Bohannon I, 376 Mass. at 95, quoting
Commonwealth v. Manning, 367 Mass. 605, 613-614 (1975)
(Braucher, J., dissenting). The foundation of the rule was
premised on the belief that a rape allegation had been 5
concocted; however, in Bohannon, the alleged falsity of the
victim's prior allegation was never established.
According to the rule, there must be "a factual basis from
independent third party records for concluding that the prior
accusations of rape had, in fact, been made and were, in fact,
untrue," Bohannon I, 376 Mass. at 95; however, "falsity" is a
complicated aspect to prove. It is especially complicated when
the allegation alleged to be false is a past allegation. See
id. In order to demonstrate falsity, courts have relied on a
victim's recantation of the alleged accusation made against an
alleged perpetrator. See Commonwealth v. Martin, 467 Mass. 291,
310 & n.27 (2014); Nichols, 37 Mass. App. Ct. at 335. However,
a rape or sexual assault victim may recant for a myriad of
reasons other than untruthfulness, including "threats made by
the perpetrator, denial, shame, embarrassment, self-blame, not
wanting to relive the trauma, and avoiding a lengthy trial or
public exposure." Altantulkhuur, A Second Rape: Testing Victim
Credibility Through Prior False Accusations, U. Ill. L. Rev.
1091, 1094 (2018). That the rule allows a recantation to be
admitted in a subsequent trial to discredit and undermine the
victim's credibility risks further traumatizing the victim. Id.
Further, where a victim does not recant, falsity can likely
only be proved by delving into the victim's past sexual
encounters. Courts must reconcile a defendant's right to 6
confront his accuser and present a full defense with the
important principle that irrelevant or misleading evidence
should not be admitted. The rules of evidence should not be
used, in effect, as a second assault, subjecting the witness to
rehash sexual experiences on the witness stand. Exposure in
court of prior sexual experiences is protected by the rape
shield law. See G. L. c. 233, § 21B; Mass. G. Evid. § 412.
Given the wealth of knowledge we have about trauma responses and
the many reasons victims recant or may provide inconsistent
testimony, there is no reason that this should not also fall
within the rape shield law.4
4 It is often the case that rape and sexual assault victims who have "credibility" issues have been victimized throughout their lives, which makes them appear unstable or present themselves in a manner contrary to what the jury may believe as typical of an assault survivor. See Cole, She's Crazy (to Think We'll Believe Her): Credibility Discounting of Women with Mental Illness in the Era of #MeToo, 22 Geo. J. Gender & L. 173, 174-175 (2020); Lave, The Prosecutor's Duty to "Imperfect" Rape Victims, 49 Tex. Tech L. Rev, 219, 230-231 (2016); Schafran, Maiming the Soul: Judges, Sentencing and the Myth of the Nonviolent Rapist, 20 Fordham Urb. L.J. 439, 448 (1993). WENDLANDT, J. (concurring, with whom Kafker, J., joins). I
agree that a bright line rule is helpful to guide prosecutors as
to their duty to disclose civil lawsuits. I write separately
because I do not share the Commonwealth's view (which the court
apparently endorses) that civil lawsuits necessarily are
unsubstantiated until a finding of liability. When a civil
action is commenced, counsel must certify that the allegations
therein have a basis in fact after reasonable investigation.
See Mass. R. Civ. P. 11 (a), as amended, 456 Mass. 1401 (2010)
(attorney signature certifies "that to the best of the
attorney's knowledge, information, and belief there is good
ground to support [the pleading]"); Fed. R. Civ. P. 11(b)(3) (in
presented pleading, attorney certifies that "the factual
contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a
reasonable opportunity for further investigation"). The
allegations in the complaint must plausibly suggest a right to
relief, and in the case of a claim of fraud, the particularity
requirement must be met.1 See Ashcroft v. Iqbal, 556 U.S. 662,
1 To the extent the claim is frivolous, a cross claim for, inter alia, abuse of process could be brought; such a cross claim should survive a special motion to dismiss. See G. L. c. 231, § 59H (motion to dismiss claim based on petitioning activity should be denied where petitioning activity "was devoid of any reasonable factual support or any arguable basis in law" and "moving party's acts caused actual injury to the responding party"). 2
678 (2009) ("a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
on its face" [quotation and citation omitted]); Mass. R. Civ. P.
9 (b), 365 Mass. 751 (1974) ("all averments of fraud . . . shall
be stated with particularity"); Fed. R. Civ. P. 9(b) ("In
alleging fraud or mistake, a party must state with particularity
the circumstances constituting fraud . . ."). See also DeWolfe
v. Hingham Centre, Ltd., 464 Mass. 795, 798 n.8 (2013) (fraud
claim not pleaded with sufficient particularity where no facts
alleged that defendant knew that representations were false).
Significantly, a claim against a police officer in the
scope of her official capacity often must overcome a motion,
usually filed early in the litigation, on the basis that the
officer's actions were protected by the doctrine of qualified
immunity. See Lynch v. Crawford, 483 Mass. 631, 635 (2019) ("we
have noted the importance of determining immunity issues early
if immunity is to serve one of its primary purposes: to protect
public officials from harassing litigation" [quotations and
citation omitted]). And where the claim nonetheless survives a
defense of qualified immunity, it often must overcome a motion
for summary judgment. Mass. R. Civ. P. 56, 365 Mass. 826
(1974). Fed. R. Civ. P. 56. At that stage of the civil
litigation, the plaintiffs cannot rest on mere allegations; they
must come forward with specific admissible evidence that, if 3
believed, would permit a verdict in their favor on the claim.
Mass. R. Civ. P. 56 (e) (in response to motion for summary
judgment, "an adverse party may not rest upon the mere
allegations or denials of his pleading, but his response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for
trial"). Fed. R. Civ. P. 56(c) (parties must "cit[e] to
particular parts of materials in the record" to show genuine
dispute of material fact).
Nonetheless, I join the court because a line is helpful and
because the defendant readily could access publicly available
information regarding a pending civil action against the
officers that are part of the prosecution team.