Graham v. District Attorney for the Hampden District

• Court: Massachusetts Supreme Judicial Court
• Decided: January 23, 2024
• Docket: SJC 13386
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

SJC-13386

CHRIS GRAHAM & others1 vs. DISTRICT ATTORNEY FOR THE HAMPDEN DISTRICT.

Suffolk. September 13, 2023. - January 23, 2024.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.2

District Attorney. Police, Records, Prosecution of criminal cases. Witness, Police officer, Impeachment. Due Process of Law, Disclosure of evidence. Evidence, Disclosure of evidence, Exculpatory, Police report, Impeachment of credibility. Practice, Criminal, District attorney, Disclosure of evidence, Conduct of government agents.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 6, 2021.

The case was reported by Wendlandt, J.

Matthew R. Segal (Rebecca A. Jacobstein, Committee for Public Counsel Services, & Jessica J. Lewis also present) for the plaintiffs. Elizabeth N. Mulvey (Thomas M. Hoopes also present) for the defendant.

1 Jorge Lopez; Meredith Ryan; Kelly Auer; Committee for Public Counsel Services; and Hampden County Lawyers for Justice.

2 Justice Cypher participated in the deliberation on this case prior to her retirement. 2

The following submitted briefs for amici curiae: Jaba Tsitsuashvili, of the District of Columbia, Anya Bidwell, of Texas, & Jay Marshall Wolman for Institute for Justice. Daniel S. Ruzumna & Eric Beinhorn, of New York, Joshua Tepfer, of Illinois, Kathrina Szymborski Wolfkot, of the District of Columbia, & Bharath Palle for Exoneration Project. Vanessa Potkin, of New York, Stephanie Roberts Hartung, Adya Kumar, & Sharon L. Beckman for New England Innocence Project & others. Luke Ryan for Massachusetts Association of Criminal Defense Lawyers. Katharine Naples-Mitchell for Pioneer Valley Project & others.

GAZIANO, J. In 2020, the United States Department of

Justice (DOJ) conducted an investigation of the Springfield

police department (department) and found that the department's

officers, particularly those within the narcotics bureau,

routinely falsified police reports and engaged in a "pattern or

practice of excessive force." These findings raised questions

about the integrity of the evidence used by the office of the

district attorney for the Hampden district (district attorney's

office) to obtain convictions. We are called on to determine

whether the district attorney's office failed to comply with his

obligations to disclose and investigate evidence of the

department's misconduct.

The six plaintiffs -- two criminal defense organizations,

two defense attorneys, and two former criminal defendants --

filed a petition with a single justice of this court, seeking

global remedies for the alleged failures of the district 3

attorney's office, premised on the remedies provided in

Commonwealth v. Cotto, 471 Mass. 97 (2015), and Commonwealth v.

Ware, 471 Mass. 85 (2015). The single justice appointed a

special master to make and report factual findings and

conclusions of law. Ultimately, the single justice reserved and

reported the case to the full court.

The plaintiffs request that this court order the district

attorney's office to investigate the effect of the department's

misconduct on criminal prosecutions. In the interim, the

plaintiffs request that this court institute a range of

remedies, including the creation of a list of officers in the

department who are connected to the misconduct, jury

instructions tailored to cases involving members of the former

narcotics bureau within the department, and a judicial

presumption favoring the admissibility of the DOJ report. In

opposition, the district attorney's office claims to have

fulfilled its obligations to disclose and investigate the

department's misconduct, such that "everybody knows what

everybody knows. There [are] no secrets in Springfield."

Further, the district attorney's office has provided evidence of

extensive efforts to obtain the materials reviewed by the DOJ

and disclose them to affected criminal defendants.

To remedy the troubling practices identified by the DOJ,

which affect the proper administration of justice in Hampden 4

County, we determine that the district attorney's office,

through certain discovery policies, committed a breach of both

the duty of the district attorney's office to disclose evidence

that tends to exculpate defendants and the duty of the district

attorney's office to investigate or inquire about such evidence.

First, 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

violates the duty of the district attorney's office to disclose.

Second, 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. Third, 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.

Accordingly, to remedy these breaches of the duties of the

district attorney's office, we order the district attorney's

office to obtain access to all categories of documents known to

have been reviewed by the DOJ and disclose them to the

plaintiffs. From there, case-by-case adjudication can begin to

address the claims of individual defendants affected by the

department's misconduct. 5

In so ordering, this court reemphasizes the importance of a

prosecutor's dual duties -- to disclose and to investigate -- in

upholding the integrity of our criminal justice system. See

Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass.

700, 702-704 (2018). It is the responsibility of prosecutors

and defense attorneys alike to ensure that the due process

rights of every criminal defendant in Hampden County are

vindicated and protected.3

1. Background. a. Parties. Among the six plaintiffs are

two legal organizations, the Committee for Public Counsel

Services (CPCS) and Hampden County Lawyers for Justice (HCLJ).

CPCS is a Statewide entity established under G. L. c. 211D, and

is responsible for providing representation to all indigent

criminal defendants, whether directly through public counsel or

indirectly through private, bar-appointed counsel. HCLJ has

approximately 150 attorney members, with four supervising

attorneys. HCLJ represents approximately seventy-five percent

of indigent defendants in Hampden County.4

3 We acknowledge the amicus briefs submitted by the Institute for Justice; the Exoneration Project; the New England Innocence Project, the Innocence Project, Inc., and the Boston College Innocence Program; the Massachusetts Association of Criminal Defense Lawyers; and the Pioneer Valley Project, Citizens for Juvenile Justice, and the Criminal Justice Institute at Harvard Law School.

4 The two defense attorney plaintiffs are Meredith Ryan and Kelly Auer. Both serve as bar advocates through HCLJ, and Ryan 6

The district attorney's office is the defendant in this

action. The district attorney's office prosecutes cases in the

Superior, District, and Juvenile Courts, with annual case

filings ranging from approximately 20,000 in 2015 to over 15,000

in 2021.

Although the department is not a named party to this

action, some background discussion of that department is

warranted, given that the plaintiffs' claims necessarily

implicate it. As of the time of the DOJ's investigation, the

department had approximately 500 sworn officers, organized into

three major divisions. The narcotics bureau, now disbanded,

fell within the investigations division. It was a small unit of

is a board member and vice-president of HCLJ. The two former defendant plaintiffs are Chris Graham and Jorge Lopez, both of whom allege that the district attorney's office wrongfully failed to disclose exculpatory material during their prosecutions.

The district attorney's office challenges whether the plaintiffs have standing. In her report, the special master found that, by virtue of their organizational functions, plaintiffs CPCS and HCLJ have proper representative standing for persons (including criminal defendants) whose rights are implicated by the issues underlying the petition. See Planned Parenthood League of Mass., Inc. v. Bell, 424 Mass. 573, 578, cert. denied, 522 U.S. 819 (1997). See also Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass. 431, 447, S.C., 484 Mass. 1029 (2020) (organizations representing incarcerated individuals had representative standing to challenge their continued incarceration during COVID-19 pandemic). We agree. Given that CPCS and HCLJ have standing, we decline to reach the unnecessary question of standing with regard to the remaining four plaintiffs. 7

plainclothes officers focused on narcotics offenses. At full

capacity, the unit consisted of twenty-four officers, three

sergeants, one lieutenant, and one captain. The narcotics

bureau was the focal point of the DOJ's investigation.

The department's internal investigations unit is charged

with investigating allegations of misconduct made against both

individual officers and the department itself.

b. Facts. This court draws its facts from the findings of

the special master, as memorialized in her October 2022 report,

supplemented by other undisputed facts in the record. See

S.J.C. Rule 2:13, as appearing in 382 Mass. 749 (1981).

i. DOJ report. In April 2018, the United States Attorney

for the District of Massachusetts and the DOJ's civil rights

division began investigating the narcotics bureau.

Three main incidents sparked the DOJ's investigation.

First, a narcotics bureau sergeant was federally indicted for

"threatening juveniles" in February 2016. In a civil suit

subsequently commenced by one of the juveniles against the city

of Springfield (city) and the sergeant, the juvenile alleged

that he suffered a broken nose, two black eyes, and several

contusions and abrasions as a result of the sergeant's use of

excessive force. Second, six off-duty officers from the

department engaged in a violent brawl outside a Springfield

restaurant in April 2015, prompting the Massachusetts Attorney 8

General to pursue criminal charges against the officers. Third,

a former narcotics bureau officer was indicted in January 2016

for stealing almost $400,000 from the department's evidence

room. These incidents were widely publicized and raised

concerns about the ability of the district attorney's office to

rely on testimony from "discredited" officers in the department,

as well as the "willingness of officers to cover up"

constitutional violations and systemic deficiencies.

The DOJ released a report of its findings in July 2020,

concluding that there was "reasonable cause to believe" that the

narcotics bureau engaged in a "pattern or practice of excessive

force." More specifically, on various occasions narcotics

bureau officers punched individuals in the face, escalated

encounters with civilians unnecessarily, and utilized

"unreasonable takedown maneuvers." The DOJ also concluded in

its report that it was "not uncommon" for narcotics bureau

officers to write "false or incomplete" reports to justify their

use of force. According to the DOJ report, officers often used

"vague" or "rote" language in prisoner injury reports to prevent

further investigation. For example, the DOJ report cites a

prisoner injury narrative in which narcotics bureau officers

claim that they had to "bring . . . down" an individual

resisting arrest "face first, onto the sidewalk," where she

"sustained scrapes to her face area." There were no further 9

details describing the individual's resistance, the officers'

reactions, or the extent of her injuries.

The DOJ report attributed its findings to systemic policy

and training deficiencies within the department, such as a

failure of senior command to report use of force incidents to

the department's internal investigations unit. Additionally, an

April 2019 report issued by the Police Executive Research Forum

found "significant departures" within the department from

national guidelines for best practices issued by the DOJ in

2008.

In preparing its report, the DOJ reviewed "over 114,000

pages in total, including [the department's] policies and

procedures; training materials related to the use of force and

accountability; [the department's] internal affairs protocols;

and other materials relating to the general operations of the

[d]epartment and use-of-force practices in particular." This

review included over one hundred reports from over one hundred

internal investigations conducted by the internal investigations

unit, as well as seventy-four personnel files. The DOJ also

interviewed a broad swath of officers, community members, city

officials, and lawyers. Significantly, the DOJ obtained every

arrest report and use-of-force report drafted by the department

from 2013 to 2018, and every prisoner injury file created from

2013 to 2019. 10

However, the DOJ report provides minimal details concerning

the incidents on which it is based and does not identify by name

any officers or civilians involved with these incidents.

Indeed, the DOJ report describes several "unadjudicated

allegations of misconduct," which the special master

subsequently deemed difficult to identify from the current

record.

Although the exact number cannot be known due to some

factual overlap between the anonymized incidents, there are

roughly twenty-three incidents of misconduct involving the

department that are described within the DOJ report. Sixteen

incidents have been identified by the city solicitor, some of

which are discussed infra, while the rest remain outstanding.

Although the city solicitor has promised that "any and all

records which can be made available to [the district attorney's

office] that can be identified as reviewed by [the] DOJ will be

provided to [the district attorney's office upon] request,"

neither the district attorney's office nor the department knows

for certain the exact documents upon which the DOJ report is

based. The department opened its record management system to

the DOJ but is "not sure" whether information technology

professionals can accurately track what records the DOJ

accessed, and the DOJ refuses to specifically identify the

documents underlying its report. 11

As a result of the findings in the DOJ report, in April

2022, the DOJ sued the city in Federal court. The DOJ asserted

that the department "had engaged in a pattern or practice of

conduct by law enforcement officers that deprives persons of

rights, privileges, and immunities secured and protected by the

Constitution and laws of the United States." Simultaneously,

the DOJ and the city filed a settlement agreement, which was

approved by a United States District Court judge shortly

thereafter and entered as a consent decree. While the city did

not admit to any wrongdoing by the department, the consent

decree outlines detailed policy reforms to be adopted by the

department and calls for the appointment of a "compliance

evaluator" to oversee the department's progress.

Two incidents alluded to within the DOJ report are

identifiable on their facts and are discussed infra: first, an

incident involving Officer Gregory Bigda, a member of the

department; and second, an incident outside a Springfield

restaurant.

A. Officer Bigda incident. On the night of February 26,

2016, Bigda arrested three juveniles for the theft of an

unmarked police vehicle and interrogated them at the Palmer

police station. A video recording (video) of the interrogation

shows that no parent or guardian was present during Bigda's

questioning. In the video, Bigda uses profane and racist 12

language, and threatens the juveniles with physical violence and

a lengthy incarceration. Further, Bigda can be heard

threatening to plant evidence on the juveniles and assuring them

that he would "get away with it."

On February 29, 2016, the district attorney's office

requested a copy of the interrogation video from the Palmer

police department and, on receipt in March 2016, made the video

available to defense counsel for the three juveniles. In July

2016, an assistant district attorney assigned to prosecute the

juveniles viewed the video and brought it to the attention of

his supervisor, who then alerted the first assistant district

attorney, Jennifer Fitzgerald. The district attorney's office

subsequently disclosed the video in all cases where Bigda was

involved.

Aside from Bigda, two other officers from the department

were present during the video recording of this interrogation:

Luke Cournoyer and Jose Robles. While Cournoyer was in the

interrogation room, Robles was in the dispatch room, from which

he could see and hear parts of the interrogation. The two

officers neither intervened nor reported the incident prior to

the video's release to the public. It is unclear from the

record whether other officers from the department were present

at the police station during this incident. 13

In addition to the video, a report by an officer from the

Wilbraham police department involved in the arrest of the

juveniles states that an unidentified plainclothes officer from

the department kicked one of the juveniles. The kicking was

alleged to have occurred during the arrest. Although the

district attorney's office disclosed this report to defense

counsel for the three juveniles, it did not disclose the report

to defendants in any other cases -- reasoning that, without the

clear and certain identification of the officer whose testimony

might be subject to impeachment, the district attorney's office

would be unable to identify any cases in which to make the

necessary disclosure.

Fitzgerald testified about this incident during an

evidentiary hearing before the special master in September 2022.

Responding to a scenario where one officer among several used

excessive force, Fitzgerald stated that if "[the district

attorney's office] can't identify who [the violating officer]

is, I can't turn it over" to defense counsel. Therefore,

although other officers informed Fitzgerald that one of two

officers in the department, either Steven Vigneault or Bigda,

probably kicked the juvenile, the policy of the district

attorney's office still did not require disclosure of this

incident because there was "nothing concrete to prove" which

officer kicked the juvenile. 14

Initially, Vigneault was federally indicted for kicking the

juvenile. This indictment was dismissed on January 22, 2020,

after the juvenile identified Bigda as his assailant. Bigda was

then indicted in Federal court for civil rights violations in

connection with the arrest and interrogation of the juveniles.

He was acquitted in December 2021 and is no longer employed by

the department.

B. Springfield restaurant incident. In April 2015,

multiple off-duty officers in the department physically

assaulted patrons outside a Springfield restaurant. After

kicking and punching the patrons, the off-duty officers fled the

scene. The department investigated the incident, wrote a

report, and referred the matter to the internal investigations

unit for further investigation and reporting. In October 2015,

the department further referred the matter to the district

attorney's office to determine whether to bring criminal charges

against the officers involved in the incident. It took "nearly

a year" before the department provided the full file of the

internal investigations unit's investigation to the district

attorney's office.

Ultimately, the district attorney's office concluded that

it lacked probable cause to bring criminal complaints against

any of the officers, because the evidence failed to sufficiently

identify the perpetrators of any criminal acts. The district 15

attorney's office publicly issued a report to this effect in

February 2017, posting the report to the website of the district

attorney's office and providing the report to media outlets.

However, as in the Bigda incident, the district attorney's

office did not provide the report to defense counsel in any

cases involving the officers present at the restaurant, as the

district attorney's office apparently was unable to attribute

any criminal offenses to any particular officers.

The district attorney's office then referred the matter to

the United States Attorney's office, which in turn referred the

matter to the Attorney General. She presented the facts to a

special Statewide grand jury, which issued indictments against

fourteen of the department's officers for a variety of crimes,

including assault, perjury, filing false reports, and

conspiracy. The department subsequently placed all fourteen

officers on leave, although at least five have since been

reinstated. At the request of the district attorney's office,

the Attorney General provided a letter describing the charges

against each officer. However, the Attorney General did not

provide grand jury minutes, copies of the indictments, or any

additional materials to the district attorney's office. At the

time of the special master's report, only two officers had been

convicted, and charges remained pending against several others. 16

ii. Efforts to investigate DOJ report allegations. In the

wake of the DOJ report, both the department and the district

attorney's office have made attempts to investigate the

anonymized findings of the DOJ report and link them to

identifiable cases. These efforts are summarized as follows.

A. Kent rebuttal. Following the publication of the DOJ

report, in October 2020, Deputy Chief Steven Kent of the

department drafted a twenty-eight page internal document titled

"Rebuttal to the Department of Justice Investigation of the

Springfield, Massachusetts Narcotics Bureau" (Kent rebuttal).

In this document, Kent identified many of the individuals and

sixteen of the twenty-three incidents referred to in the DOJ

report. He concluded that "errors and discrepancies" in the DOJ

report undermined its conclusions and wrongfully tarnished the

department.

The district attorney's office knew of the Kent rebuttal's

existence as early as March 2021.5 However, as of October 18,

2022, when the special master issued her report, the department

5 Although the special master found that the district attorney's office knew of the Kent rebuttal's existence as of July 2, 2021, we do not accept the special master's finding as to this date. See New England Oil Ref. Co. v. Canada Mexico Oil Co., 274 Mass. 191, 197-198 (1931) (facts within special master's report become indisputable only when special master's report is confirmed). This error was pointed out by the plaintiffs in their objections to the special master's factual findings. 17

had "refused to divulge" the Kent rebuttal to the district

attorney's office or anyone else. Then, in March 2023, although

the Kent rebuttal had been shielded from production by the work

product privilege up to that point, it was released to the

public by city officials.

The plaintiffs take issue with the Kent rebuttal for three

reasons. First, Kent was implicated by the very report that he

sought to debunk, undermining his credibility. Second, the

plaintiffs do not believe that Kent's investigation satisfied

the Commonwealth's broader investigatory obligations following

the DOJ report. Third, the plaintiffs assert that the delayed

disclosure of the Kent rebuttal is an example of the district

attorney's failure to obtain and disclose potentially

exculpatory evidence.

B. District attorney's review of materials underlying DOJ

report. On May 19, 2021, the district attorney commenced suit

against the United States Attorney in Federal court, seeking

access to the falsified reports made by members of the

department that underlie the DOJ report. See generally Gulluni

v. United States Attorney for Dist. of Mass., 626 F. Supp. 3d

323 (D. Mass. 2022). Ultimately, the court deferred to the

executive branch decision to withhold the documents and granted

the defendant's motion for summary judgment. The United States

Court of Appeals for the First Circuit later upheld this 18

decision, noting that the district attorney "already has access

to all the underlying documents on which DOJ relied in compiling

its report." See Gulluni v. Levy, 85 F.4th 76, 77, 84 (1st Cir.

2023).

During this time, the district attorney continued to seek

from the department the materials underlying the DOJ report. On

July 2, 2021, in response to inquiries from Fitzgerald, the city

solicitor sent her approximately 700 to 800 pages of materials,

describing the sixteen incidents that the department had been

able to identify from the DOJ report. These materials included

summaries of the incidents, arrest reports, and, where

applicable, the internal investigations unit's case numbers.

The city solicitor expressly indicated that the information

provided by the city was "not exhaustive as to each incident."

However, the city solicitor stated that the department was

willing to provide the district attorney with access to all

files known to have been reviewed by the DOJ.

On receiving these materials, the district attorney began

to link the identified officers and incidents to some 8,000

pending or past cases. From there, the district attorney

endeavored to identify the attorney of record in each case. The

district attorney then sent each identified attorney of record

redacted copies of the materials provided by the city solicitor.

However, the district attorney did not make these same 19

disclosures to pro se litigants, and in the disclosures made,

the district attorney did not explain that the review of each

incident was not exhaustive. There is some dispute as to the

number of defendants who since have reached out to obtain

unredacted materials.

The plaintiffs allege that the district attorney has been

deficient in the review of the materials underlying the DOJ

report, having only reviewed 712 pages -- that is, "less than

[one percent]" -- of the approximately 114,000 pages reviewed by

the DOJ. No further detail about these 712 pages has been

provided. However, the number of pages purportedly reviewed by

the district attorney coincides with the approximate number of

pages provided to the district attorney by the city solicitor.

The plaintiffs also note that Fitzgerald's request for

information from the city solicitor came two days after the

plaintiffs commenced this action, which the plaintiffs allege

reflects the district attorney's failure to act independently to

satisfy its investigatory obligations.

iii. District attorney's withholding of adverse

credibility determinations. As a matter of policy, the district

attorney's decision whether to disclose adverse credibility

findings made against officers in the department is based, in

part, on whether the district attorney agrees with the findings.

The plaintiffs contend that this practice constitutes the 20

systematic withholding of exculpatory evidence related to police

misconduct.

In exploring this disclosure policy, the special master

reviewed at least thirteen instances in the record in which the

district attorney failed to disclose potentially exculpatory

findings that an officer was untruthful. Two such instances are

described infra.6

First, during an August 2018 hearing in connection with

Commonwealth vs. Morales, Mass. Super. Ct., No. 1779CR00375

(Hampden County Aug. 28, 2018), and Commonwealth vs. Santiago,

Mass. Super. Ct., No. 1779CR00376 (Hampden County Aug. 28,

2018), the motion judge found that the testimony of an officer

"plainly stated was not credible," and went on to stress that

the officer's testimony was "fanciful" and "a made up tale."

Despite this strong language, the district attorney conducted an

independent evaluation and found that the testifying officer had

"misunderstood, but did not misrepresent" relevant facts during

his testimony. Therefore, the district attorney's office did

6 The special master's discussion of other instances where the district attorney's office failed to disclose potentially exculpatory findings that an officer was untruthful breaks down into two main categories. In the first category, judges discredited the testimony of officers from the department in granting a defendant's motion to suppress. In the second category, officers who had served as prosecution witnesses either testified about their prior dishonest conduct or were later indicted for their misconduct. 21

not disclose the motion judge's findings in other cases

involving the testifying officer.

Second, in Commonwealth vs. Perez, Mass. Dist. Ct., No.

1923CR000353 (Springfield Div. Feb. 7, 2019), a defendant was

shot multiple times by arresting officers in the department.

After a January 2019 hearing, a District Court judge found that

the version of the shooting offered by the officers was "not

consistent with the physical evidence," such that there was

"substantial incongruity" between the officers' assertions and

the location of the gunshot wounds. The judge went so far as to

say that the "incongruity defies the objective evidence and

almost belies common sense." Nonetheless, after an internal

investigation of the incident, the department and the district

attorney's office independently concluded that the shooting was

lawful. Therefore, the district attorney's office did not

disclose the judge's comments in other cases in which the

officer was involved.

c. Procedural history. On April 6, 2021, the plaintiffs

commenced this action, seeking relief from a single justice of

this court under G. L. c. 211, § 3, and G. L. c. 231A, § 1. On

April 19, 2022, after the parties filed their briefs and after a

series of hearings, interim orders, and status reports, the

single justice appointed a special master to determine the

relevant facts, make credibility determinations, and report any 22

recommendations and conclusions of law to the single justice.

The special master then conducted a four-day evidentiary hearing

and issued a report of her findings on October 18, 2022. On

January 30, 2023, the single justice reserved and reported the

case to the full court.

2. Discussion. The plaintiffs put forward numerous

allegations concerning the failings of the district attorney's

office. Importantly, the plaintiffs assert that the district

attorney's office has committed a breach of an ongoing duty to

learn of the department's misconduct and, further, to disclose

this misconduct to affected defendants in pending and past

criminal cases.

More specifically, the plaintiffs argue that several

policies and practices of the district attorney's office

demonstrate an overly narrow view of its disclosure obligations.

Among these policies and practices, they challenge the practice

of the district attorney's office of disclosing judicial

findings of adverse credibility made against officers in the

department on a discretionary basis to defendants and their

counsel. Similarly, the plaintiffs challenge the policy of the

district attorney's office of withholding instances of officer

misconduct where multiple officers are involved and the

wrongdoer cannot be clearly identified. They also allege that a

"trifecta" of charges is routinely used to cover up excessive 23

force within the department: resisting arrest, disorderly

conduct, and assault and battery on a police officer.

In addition to the disclosure-related failures of the

district attorney's office, the plaintiffs also allege that the

district attorney's office failed to adequately investigate the

department following the DOJ's finding of a pattern or practice

of misconduct within the department, as required by Cotto, 471

Mass. at 112, and Ware, 471 Mass. at 95. Specifically, the

plaintiffs claim that the district attorney's office failed to

obtain any documents from the department until the plaintiffs

commenced this suit. Then, after receiving "some" relevant

documents from the department, the district attorney's office

further failed to fulfill its investigatory obligations; instead

of obtaining the outstanding documents and sending complete

copies of any exculpatory material directly to all affected

defendants, the district attorney's office sent redacted,

limited exculpatory material en masse to the last attorneys of

record for affected defendants.

By way of relief, the plaintiffs request that this court

"institute [interim] remedies" until the district attorney's

office completes an investigation of the department. The range

of the requested relief sweeps broadly, including the creation

and monitoring of a list of officers connected to the

misconduct, ensuring that defendants receive evidence as it 24

becomes available, instituting a judicial presumption favoring

the admissibility of the DOJ report, crafting jury instructions

tailored to cases involving former narcotics bureau officers

within the department, limiting the admissibility of police

reports at hearings, and fashioning "other relief that the

[c]ourt deems fit."

In evaluating the plaintiffs' claims and requested relief,

we must first discuss the legal obligations of prosecutors --

particularly their duty to disclose information that tends to

exculpate criminal defendants and their duty to seek out such

information. We next determine whether the district attorney's

office met its prosecutorial obligations here. Where the

district attorney's office has failed in either duty, and in

response to the systemic issues within the department that have

been identified by the DOJ report, we then craft the appropriate

remedy under our supervisory authority. See G. L. c. 211, § 3.

See also Commonwealth v. Hallinan, 491 Mass. 730, 747 (2023),

quoting Brantley v. Hampden Div. of the Probate & Family Court

Dep't, 457 Mass. 172, 183 (2010) ("Allegations of systemic

abuses affecting the proper administration of justice are

particularly appropriate for review pursuant to G. L. c. 211,

§ 3").

a. Duty to disclose exculpatory material. "The due

process clauses of the Federal Constitution and the 25

Massachusetts Declaration of Rights require that the

Commonwealth disclose to a defendant material, exculpatory

evidence in its possession or control." Committee for Pub.

Counsel Servs., 480 Mass. at 731. See art. 12 of the

Massachusetts Declaration of Rights (guaranteeing every criminal

defendant "shall have a right to produce all proofs, that may be

favorable to him"). To be considered exculpatory, and therefore

subject to automatic disclosure, evidence need only "tend to

diminish [a defendant's] culpability." Matter of a Grand Jury

Investigation, 485 Mass. 641, 647-649 (2020). The defendant

need not request exculpatory material to mandate this

disclosure. See Commonwealth v. Bing Sial Liang, 434 Mass. 131,

135 (2001).

The Commonwealth's duty to disclose exculpatory evidence to

criminal defendants is further reflected in our rules of

criminal procedure and rules of professional conduct. See

Committee for Pub. Counsel Servs., 480 Mass. at 730-731. See

also Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518 (2004)

(governing discovery procedures); Mass. R. Prof. C. 3.8 (d), as

appearing in 473 Mass. 1301 (2016) (mandating that prosecutor

"make timely disclosure" of all evidence that "tends to negate

the guilt of the accused"). This duty to disclose derives from

the core responsibility of a prosecutor "to administer justice 26

fairly." Committee for Pub. Counsel Servs., supra at 730,

quoting Commonwealth v. Tucceri, 412 Mass. 401, 408 (1992).

A prosecutor's duty to disclose extends to all facts within

the "possession, custody, or control" of a member of the

prosecution team. Bing Sial Liang, 434 Mass. at 135. The

prosecution team generally is understood to include prosecutors

and relevant law enforcement personnel. See Commonwealth v.

Beal, 429 Mass. 530, 531-532 (1999). Put differently, "[a]

prosecutor's obligations extend to information in possession of

a person who has participated in the investigation or evaluation

of the case and has reported to the prosecutor's office

concerning the case." Commonwealth v. Martin, 427 Mass. 816,

824 (1998) (including State police crime laboratory chemists

within prosecution team). See Bing Sial Liang, supra (including

victim and witness advocates within prosecution team); Beal,

supra at 532-533 (excluding complainants and independent

witnesses unaffiliated with investigation from prosecution

team); Commonwealth v. Woodward, 427 Mass. 659, 679 (1998)

(including medical examiner within prosecution team).

A prosecutor's duty to disclose necessarily encompasses

information that may not even be known to the prosecutor or

housed within his or her files, so long as the information is

related directly to the crimes at issue and is in the possession

of some prosecution team member. See Martin, 427 Mass. at 823- 27

824; Commonwealth v. Gallarelli, 399 Mass. 17, 20 n.4 (1987).

See also Commonwealth v. Sullivan, 478 Mass. 369, 380-384

(2017). That is, prosecutors have a duty to disclose

exculpatory evidence in possession of all members of the

prosecution team -- including police officers on the team. See

Matter of a Grand Jury Investigation, 485 Mass. at 658-659. As

a result, when a prosecutor or any member of the prosecution

team learns that police officers either "lied to conceal the

unlawful use of excessive force" or lied about a defendant's

conduct and the applicable charges, the prosecutor must disclose

the untruthful conduct in any criminal case in which that

officer prepared a report or may serve as a witness. Id. at

658.

Importantly, neither a prosecutor's decision to disclose

nor a prosecutor's constitutional obligations under Brady v.

Maryland, 373 U.S. 83, 87-88 (1963), are dependent on the

"ultimate admissibility of the information," but only on their

tendency toward exculpating a defendant. See Matter of a Grand

Jury Investigation, 485 Mass. at 653. Indeed, Massachusetts

prosecutors must "err on the side of caution" when deciding

whether to disclose. Id. at 650.

Turning to United States Supreme Court precedent, the

existence of exculpatory information known only to officers on

the prosecution team and not to the individual prosecutor does 28

not alter this analysis. See Kyles v. Whitley, 514 U.S. 419,

438 (1995) (prosecutors are still responsible for "evidence

known only to police investigators and not to the prosecutor");

Giglio v. United States, 405 U.S. 150, 154 (1972); Drumgold v.

Callahan, 707 F.3d 28, 38 (1st Cir. 2013) ("Subsequent to Brady,

the Supreme Court clarified that this affirmative disclosure

obligation also encompasses evidence known only to law

enforcement officers and not to prosecutors"). Accordingly, to

comply with its obligations under Giglio, supra, to disclose

information known to the prosecution team, it behooves the

prosecutor's office to institute formal disclosure procedures to

ensure the communication of all material information to defense

counsel.7

However, as we have stated, "[w]e do not possess the

authority to require the Attorney General and every district

attorney in this Commonwealth to promulgate a comparable

[Giglio] policy." Matter of a Grand Jury Investigation, 485

Mass. at 660. See art. 30 of the Massachusetts Declaration of

Rights. Nonetheless, "we strongly recommend that they do." Id.

That said, it is important to recall that "[n]o checklist can

7 Following Giglio, the DOJ promulgated a "Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses" (also known as the "Giglio Policy") to better effect disclosure. Matter of a Grand Jury Investigation, 485 Mass. at 658. 29

exhaust all potential sources of exculpatory evidence."

Committee for Pub. Counsel Servs., 480 Mass. at 733.

We now examine two key practices of the district attorney's

office that implicate a prosecutor's duty to disclose: one, the

practice of the district attorney's office of disclosing adverse

credibility determinations made about witnesses from the

department only on a discretionary basis; and, two, the practice

of the district attorney's office of withholding misconduct of

the department's officers where multiple officers are involved

in an incident and no one action can be attributed to any one

officer.

i. Discretionary disclosure of adverse credibility

determinations. In her testimony, Fitzgerald confirmed the

plaintiffs' allegation that the district attorney's office does

not automatically turn over every judicial finding of adverse

credibility made against a police witness to defense counsel.

Rather, the district attorney's office independently determines

whether the judge's adverse credibility finding is exculpatory.

This practice of disclosing adverse credibility findings only on

a discretionary basis violates disclosure obligations.

As discussed above, prosecutors' disclosure obligations

extend to exculpatory information held by members of the

prosecution team. See Bing Sial Liang, 434 Mass. at 135.

Officers involved in the prosecution of a case are members of 30

the prosecution team, such that prosecutors are duty-bound to

disclose exculpatory facts in their possession. See Beal, 429

Mass. at 531-532. Adverse credibility findings made about

police witnesses are exculpatory, as they may undercut the

prosecution's case and therefore tend to diminish the

defendant's culpability. See Matter of a Grand Jury

Investigation, 485 Mass. at 647-649. See also Commonwealth v.

Diaz, 100 Mass. App. Ct. 588, 594 (2022) (to be exculpatory,

evidence "must simply tend to negate the guilt, or to reinforce

the innocence, of the accused"). Therefore, adverse credibility

findings about a police witness fall within the scope of a

prosecutor's disclosure obligations and must be shared with the

defense. Again, "the ultimate admissibility of the information

is not determinative of the prosecutor's Brady obligation to

disclose it." Matter of a Grand Jury Investigation, supra at

653.

A prosecutor's obligation to disclose exculpatory material

is just that -- an obligation, not a decision. See Matter of a

Grand Jury Investigation, 485 Mass. at 646-647 (reiterating that

prosecutor "must" disclose exculpatory information). Therefore,

prosecutors cannot, consistent with their obligation to disclose

exculpatory information, withhold at their discretion the fact

that a judge has determined that an officer's statements were

not credible. 31

Whether the district attorney's office was on notice before

of a pattern of dishonesty on the part of prosecution witnesses

from the department, see Martin, 427 Mass. at 823-824 (duty to

disclose applied to State police crime laboratory reports

unknown to prosecutor but held by prosecution team member), it

is now. See Commonwealth v. Baldwin, 385 Mass. 165, 177 (1982)

(potentially exculpatory information known to prosecution cannot

be withheld from defense with impunity). Allowing a police

officer to take the witness stand with knowledge of a prior

determination as to the officer's dishonesty and without making

the necessary disclosures of this determination violates the

ethical and legal duties of a prosecutor. See Mass. R. Crim. P.

14 (imposing duty to disclose any facts of exculpatory nature);

Mass. R. Prof. C. 3.8 (g) (prosecutor cannot avoid seeking

evidence favorable to other side). See also Matter of a Grand

Jury Investigation, 485 Mass. at 658 (duty to disclose requires

sharing police dishonesty with defendants "in any criminal case

where the officer is a potential witness or prepared a report").

See e.g., Milke v. Ryan, 711 F.3d 998, 1006 (9th Cir. 2013)

(prosecutor's failure to disclose adverse credibility findings

against police witness was "akin to active concealment").

ii. Disclosure of incidents where officer remains

unidentified. Similarly, the practice of the district

attorney's office of withholding known instances of police 32

misconduct when the district attorney's office cannot attribute

particular criminal acts to particular officers -- as in the

Springfield restaurant and Bigda incidents -- violates the duty

of the district attorney's office of disclosure. Put

differently, when a subset of a known number of officers has

committed misconduct, and it is unclear which officer or

officers are the offenders, the district attorney's office

cannot shirk its disclosure obligations, but rather must

disclose the incident in any cases involving any of the officers

who could be the possible offenders.

Pending criminal investigations involving and known to

members of the prosecution team require disclosure. See Matter

of a Grand Jury Investigation, 485 Mass. at 647. As discussed

previously, officers from the department who are involved in the

prosecution of a case are members of the prosecution team, and

any exculpatory information known to them triggers the

disclosure obligations of the district attorney's office. See

Bing Sial Liang, 434 Mass. at 135. Because a pending criminal

investigation against any member of the prosecution team holds

possible impeachment value for a defendant, it is exculpatory.

See Matter of a Grand Jury Investigation, supra. Such

investigations would require disclosure under the Federal Giglio

policy, and we subscribe to an even broader understanding of the

Commonwealth's disclosure obligations. See id. at 649. See 33

also United States Department of Justice, Justice Manual, tit.

9-5.100(5)(c)(iii) (updated Jan. 2020) [https://perma.cc/NKL2-

YZ2J] (Justice Manual) ("any allegation of misconduct bearing

upon truthfulness, bias, or integrity that is the subject of a

pending investigation" requires disclosure). Again,

admissibility is not a prerequisite for disclosure. "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." Matter of a Grand Jury

Investigation, supra at 650.

The requirement to disclose pending criminal investigations

is distinct from our discussion of pending civil lawsuits in

Commonwealth v. McFarlane, 493 Mass. (2024), also released

today. Pending civil lawsuits are not subject to automatic

disclosure obligations because, "until there is finding of civil

liability, a pending lawsuit may well be without merit." Id.

at . In contrast, in the case of a pending criminal

investigation such as the investigation following the

Springfield restaurant incident, even if the extent of an

officer's participation in criminal misconduct is unclear, an

officer's known presence at the restaurant, coupled with reports

of physical force by ten to fifteen off-duty officers causing

the injuries of several victims at that scene, is potentially 34

exculpatory and enough to mandate disclosure. See Matter of a

Grand Jury Investigation, 485 Mass. at 650 (evidence that would

tend to exculpate defendant, including by impeaching credibility

of key prosecution witness, must be disclosed). Similarly, in

the Bigda incident, where a police witness reported that a plain

clothes officer kicked a juvenile, and multiple different

officers reported to the district attorney's office that the

offender was one of two plain clothes officers, see part

1.b.i.A, supra, that information is potentially exculpatory, and

the incident must be disclosed to defense counsel. See Matter

of a Grand Jury Investigation, supra. Neither allegation is

unsubstantiated -- both are supported by witness statements,

police investigation and reporting, and identifiable, injured

victims. Cf. Justice Manual, tit. 9-5.100(6) (unsubstantiated

allegations of misconduct outside scope of impeachment

material).

In other words, the extent of an officer's involvement need

not be clearly proven for the incident to be disclosed; instead,

if evidence known to the prosecution team "would tend to

exculpate the defendant or tend to diminish his or her

culpability," it must be disclosed. Matter of a Grand Jury

Investigation, 485 Mass. at 649 (Massachusetts has broader duty

to disclose than Federal Brady requirements). Because the

current disclosure policy of the district attorney's office 35

trends toward requiring such clear proof, it imposes too high of

a bar. Once disclosure has been accomplished, defense counsel

may then investigate further to clarify the extent of an

officer's involvement. See id. at 653 (disclosure allows

defense counsel to "probe more deeply" for favorable evidence).

To allow pending criminal investigations into police

misconduct known to the prosecution team to go undisclosed would

be to set up a system where a "prosecutor may hide, [and a]

defendant must seek," exculpatory information. Commonwealth v.

Baran, 74 Mass. App. Ct. 256, 299 (2009), quoting Banks v.

Dretke, 540 U.S. 668, 696 (2004) (troubling failure of

prosecutor to produce materials that "might have supported

[exculpatory] inference"). Rather, a prosecutor's duty of

disclosure tacks toward sharing information and demands a

concurrent duty, that of inquiring about the existence of

potentially exculpatory information.

b. Duty to investigate police misconduct. The

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. Ware, 471 Mass. at 95.

This duty of inquiry is premised on the prosecutor's duty to 36

"learn of and disclose" any exculpatory evidence held by any

member of the prosecution team. Id. See Cotto, 471 Mass. at

112. 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. See Cotto, supra at 111-112.

Relying on both Ware and Cotto, the plaintiffs claim that

the findings in the DOJ report have triggered the duty of the

district attorney's office to investigate the department. The

plaintiffs further invoke Cotto to seek this court's continued

supervision over the investigation by the district attorney's

office into the department. Both Ware, 471 Mass. at 86, and

Cotto, 471 Mass. at 98, concerned the actions of Sonja Farak, a

chemist at the Department of Public Health's State Laboratory

Institute (drug lab) whose misconduct ultimately compromised

tens of thousands of drug-related convictions. These two cases

impose a duty on the Commonwealth to investigate known

misconduct to determine its "timing and scope" and "remove the

cloud that has been cast over the integrity" of the criminal

justice system. Cotto, supra at 115. See Ware, supra at 95.

In Ware, 471 Mass. at 86, the defendant had been convicted

of various drug offenses during the period of Farak's employment

as a drug lab chemist for the Commonwealth, and sought

postconviction relief -- namely, the ability to retest drug 37

evidence taken by the department during the period of Farak's

employment. The defendant did not claim that Farak herself had

tested the drug samples that led to his conviction. See id.

Rather, the defendant's goal was to determine when exactly

Farak's misconduct began. See id. at 92-93.

On review, we determined that the Commonwealth had failed

to conduct a thorough investigation of Farak's misconduct, such

that the "magnitude and implications of the problem" had not

been ascertained. Id. at 96. Although "[t]he State police

spent a few days looking for missing evidence, searching Farak's

vehicle, interviewing her colleagues, conducting an inventory of

the facility, and searching a tote bag that had been seized from

Farak's work station," id., this "cursory" investigation failed

to completely capture Farak's misconduct, id. at 92, 96.

Therefore, we allowed the defendant to conduct postconviction

discovery and urged the Attorney General to lead an

investigation into the Farak matter. See id. at 96 & n.14.

Our decision in Cotto, released the same day as Ware,

similarly focused on the ramifications of Farak's misconduct.

There, the defendant had been convicted of selling cocaine and

sought to withdraw his guilty pleas because his alleged cocaine

sample had been tested by Farak. See Cotto, 471 Mass. at 98-

102. This court again noted the "absence of a thorough

investigation [into Farak's actions] by the Commonwealth," 38

particularly in comparison to the similar case of Annie Dookhan.

Id. at 108-111. Dookhan was a chemist at a different State drug

laboratory who had engaged in a variety of misconduct, ranging

from falsifying results and reports to wrongfully removing and

contaminating drug samples. See id. at 111. In some instances,

Dookhan provided test results without testing individual

samples, a practice known as "dry labbing." See id. at 106-107,

111. In the wake of Dookhan's misconduct, the State police

detective unit in the Attorney General's office conducted a

broad formal investigation of her time at that drug laboratory.

See id. at 111. Comparatively, by the time we issued our

decision in Cotto, no such investigation had yet been undertaken

of Farak's misconduct. See id. In light of the Commonwealth's

failure to investigate, this court in Cotto entitled defendants

affected by Farak's misconduct to retest their existing drug

samples. See id. at 114. This court further demanded that the

Commonwealth decide and report, within a month, whether it

intended to pursue a more formal investigation of Farak's time

as a chemist. See id. at 115.

While we expounded on the Commonwealth's duty of inquiry in

Cotto and Ware, the duty of inquiry predated those cases. See,

e.g., Martin, 427 Mass. at 823. See also Commonwealth v.

Donahue, 396 Mass. 590, 598 (1986) ("We have recognized,

however, that, in some circumstances, the prosecutor should be 39

required to seek access to material and exculpatory evidence").

As we have previously emphasized, a prosecutor is expected to

actively seek out any exculpatory evidence held by the

Commonwealth or another member of the prosecution team. See

Martin, supra. For example, in Martin, this court reversed a

conviction because the prosecutor failed to turn over

exculpatory evidence that was unknown to him but known to the

Commonwealth's drug laboratory technician. See id. Despite his

ignorance, the prosecutor nonetheless had violated his "duty to

inquire" into the existence of tests conducted by the

Commonwealth. Id.

"'Reasonableness' is the only limitation on the

prosecutor's duty of inquiry." Commonwealth v. Frith, 458 Mass.

434, 440-441 (2010) ("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 already has

all of the items and information subject to discovery, does not

comport" with duty of reasonable inquiry). See Mass. R. Crim.

P. 14 (a) (3). Reasonableness demands, at the very least, that

prosecutors ask other members of the prosecution team whether

exculpatory information exists, particularly any information

specifically requested by defense counsel or required to be

disclosed under rule 14. See Diaz, 100 Mass. App. Ct. at 594

("The scope of reasonable inquiry for the prosecutor, informed 40

by the defense request for the call log data, extended to

inquiring of the detectives whether that information was

accessible to the government"). When a prosecutor is aware of

potential misconduct involving a member of the prosecution team,

the duty of reasonable inquiry also demands that he or she

"conduct a thorough investigation to determine the nature and

extent" of the misconduct. Ware, 471 Mass. at 95. See Cotto,

471 Mass. at 115 (prosecutors should determine "timing and

scope" of known misconduct).

That is not to say that prosecutors must investigate on

behalf of defense counsel, see Beal, 429 Mass. at 532, but

rather that their duty of inquiry follows from the duty to

disclose all exculpatory evidence held by members of the

prosecution team. See Hallinan, 491 Mass. at 746, quoting

Martin, 427 Mass. at 823-824. See also Frith, 458 Mass. at 441

("it is incumbent on [a prosecutor] to ask a police prosecutor,

or other similar official, whether all discoverable materials

relating to a particular case have been given to the

Commonwealth").

In discussing the discovery obligations of the Commonwealth

in joint investigations with the Federal government, this court

has outlined factors to determine "whether the prosecutor is

obligated to seek requested exculpatory evidence" from Federal

investigators. Donahue, 396 Mass. at 599. These factors -- 41

"potential unfairness to the defendant; the defendant's lack of

access to the evidence; the burden on the prosecutor of

obtaining the evidence; and the degree of cooperation between"

members of the prosecution team -- may be relevant in outlining

the duty of inquiry more broadly. Id. See generally Hochman,

Brady v. Maryland and the Search for Truth in Criminal Trials,

63 U. Chi. L. Rev. 1673, 1691 (1996) ("The contextual location

of the evidence, the ease with which the prosecutor can acquire

it, and the potential impact on the case better describe when

the prosecutor constructively possesses evidence than any

artificial line drawing").

The Supreme Court has couched a prosecutor's duty in

similar terms. Because of the crucial truth-seeking role played

by the prosecutor in criminal trials, "the individual prosecutor

has a duty to learn of any favorable evidence known to the

others acting on the government's behalf in a case, including

the police." Kyles, 514 U.S. at 437. See Strickler v. Greene,

527 U.S. 263, 281 (1999). See also Giglio, 405 U.S. at 154 (one

prosecutor responsible for information known to another

prosecutor in same office). This duty to investigate is, again,

inextricably tied to the prosecutorial duty to disclose --

whether a prosecutor succeeds or fails in learning of favorable

evidence known to a member of the prosecution team, the

prosecution's responsibility for failing to disclose that 42

evidence to defendants is "inescapable." Kyles, supra at 437-

438. Therefore, a prosecutor's duty of inquiry necessarily

reaches police misconduct that may not be otherwise known to the

prosecutor.

Other Federal courts agree that a prosecutor cannot avoid

learning what other members of the prosecution team know "simply

by declining to make reasonable inquiry of those in a position

to have relevant knowledge." United States v. Osorio, 929 F.2d

753, 761 (1st Cir. 1991). Rather, prosecutors carry an

additional obligation to disclose what they "do[] not know but

could have learned" (citation omitted). United States v. Cano,

934 F.3d 1002, 1023 (9th Cir. 2019), cert. denied, 141 S. Ct.

2877 (2021). To conclude otherwise would be to "substitute the

police for the prosecutor, and even for the courts themselves,

as the final arbiters of the government's obligation to ensure

fair trials." Kyles, 514 U.S. at 438.

With the foregoing in mind, we now examine whether the duty

of the district attorney's office to investigate the department

was triggered by the DOJ report and, concurrently, the scope of

that duty to investigate. We then touch on how the duty to

investigate interacts with police department internal affairs

records, bearing in mind that internal affairs investigations

rely on confidentiality to work as intended. 43

i. Duty of district attorney's office to investigate

department's records following DOJ report. The DOJ's finding of

a pattern or practice of misconduct within the department

provides the Commonwealth with certain knowledge of misconduct

on the part of members of the prosecution team, raising "serious

questions" about the integrity of their work on behalf of the

Commonwealth. Cotto, 471 Mass. at 109-110. Therefore, the duty

of the district attorney's office to investigate unquestionably

was triggered by the DOJ report's findings. See Martin, 427

Mass. at 823 (prosecutor committed breach of duty of inquiry by

failing to ask about exculpatory information that was unknown to

him but known to member of prosecution team). The question then

becomes the scope of the duty and whether the district

attorney's office has satisfied that duty.

In the aftermath of the DOJ report, the district attorney's

office took various steps to investigate the department's

misconduct. After numerous attempts to have the DOJ share the

materials from the department that were underlying the DOJ's

report, the district attorney's office ultimately sued the DOJ

for access. The district attorney's office also directly

contacted the department, requesting access to the documents

underlying the DOJ's report. The district attorney's office

received between 700 and 800 documents from the city solicitor,

which the district attorney's office then provided to counsel 44

for the impacted defendants that the district attorney's office

could identify. The 700 to 800 documents, mainly consisting of

arrest reports or the internal investigations unit's case

numbers, related to the sixteen incidents described in the DOJ

report that could be reasonably identified by the department.

By looking beyond its own files and asking members of the

prosecution team, namely, the department, for access to any

exculpatory materials, the district attorney's office took

reasonable steps to inquire into the department's misconduct.

See Martin, 427 Mass. at 823-824.

The duty of reasonable inquiry does not demand that the

district attorney's office recreate the DOJ investigation. See

Beal, 429 Mass. at 532 (prosecutors need not act as defense

investigators). However, the district attorney's office was

obligated to request that "all discoverable materials" be made

available to the prosecution. Frith, 458 Mass at 441. By not

following up on the city solicitor's offer to provide "any and

all records" that were reviewed by the DOJ "at [the] request [of

the district attorney's office]" and settling for the 700 to 800

documents provided, the district attorney's office fell short of

meeting its duty of inquiry. See id. at 440 (where prosecutors

have knowledge of additional records related to ongoing matters,

they are duty-bound to conduct "further inquiry" into those

records). See also Martin, 427 Mass. at 823 ("The Commonwealth 45

had the obligation to produce all [exculpatory evidence

specifically requested by the defendant] in its possession").

As the duty of inquiry is bounded by "reasonableness," it

is reasonable for the district attorney's office to, at the very

least, obtain access to all materials from the department that

were known to have been reviewed by the DOJ. Frith, 458 Mass at

440-441. Fairness dictates that the district attorney's office

bears the burden of obtaining all evidence reviewed by the DOJ,

rather than criminal defendants. See Donahue, 396 Mass. at 600

(inability of defendant to obtain access to records that "may

well have been available to the prosecutor on request" was

factor in determining prosecutor's obligation). Not only do

defendants and prosecutors have asymmetrical access to

exculpatory information here, but the city solicitor has

explicitly offered to give the district attorney's office all

materials that "can be identified as reviewed" by the DOJ. The

district attorney's office had a duty to inquire into all

exculpatory evidence known to the prosecution team -- including

the department's records that formed the basis of the DOJ

report.

Because the exact documents reviewed by the DOJ cannot be

known, the district attorney's office must gather all documents

that fall within the general categories of documents identified

by the DOJ to satisfy the investigatory obligations of the 46

district attorney's office. That is, the DOJ listed the

following categories of documents among those that it reviewed:

the "[department's] policies and procedures; training materials

related to the use of force and accountability; [the

department's] internal affairs protocols; and other materials

relating to the general operations of the [d]epartment and use-

of-force practices in particular." The DOJ also reviewed all

arrest and use-of-force reports from 2013 to 2018, and every

prisoner injury file created between 2013 and 2019. Therefore,

to the extent that these materials are not internal affairs

records, subject to the discovery procedures laid out in

Commonwealth v. Wanis, 426 Mass. 639, 642-644 (1998), and

Commonwealth v. Rodriguez, 426 Mass. 647, 650 (1998), the

district attorney's office must obtain all documents falling

into these categories from the department in order to fulfill

the duty of the district attorney's office of investigation.

See Frith, 458 Mass at 441. To the extent this gathering and

review process yields more exculpatory information, that, too,

must be obtained and disclosed by the district attorney's

office. See id. at 440-441.

ii. Limitations on duty to inquire into police internal

affairs records. In discussing the duty of the district

attorney's office of inquiry, the plaintiffs seek to revisit two 47

cases decided by this court: Wanis, 426 Mass. 639, and

Rodriguez, 426 Mass. 647.8

In Wanis, 426 Mass. at 640-642, the defendants attempted to

compel the production of an internal police investigation about

their arresting officer. The question became whether police

department internal affairs records fall within a prosecutor's

automatic discovery obligations pursuant to Mass. R. Crim. P.

14. See id. at 643. This court deemed internal affairs

divisions to be outside of the scope of the prosecution team and

therefore "reject[ed] any suggestion" that internal affairs

records, even if relevant and material, must be produced by the

prosecution. Id. In so ruling, this court emphasized the

8The case of plaintiff Graham offers an example of the exculpatory materials that may be contained within police department internal affairs records. In July 2017, Graham, a Black man, was in an altercation with two white off-duty officers. One of the three men pointed a gun during this altercation, but it was unclear who did so, Graham or one of the officers. When on-duty officers from the department arrived at the scene, Graham was arrested for, among other things, unlawful possession of a loaded firearm. However, during the altercation, an unidentified 911 caller stated that the Black man involved did not have the gun. After Graham filed a complaint against the arresting officers for assault, the internal investigations unit followed up with the 911 caller, who reiterated that the only person with a gun was a "white guy." Accordingly, the special master later deemed the 911 call "clearly exculpatory." The prosecutor was unaware of the internal investigations unit's investigation, and defense counsel did not obtain the report of that investigation. Therefore, Graham was convicted without knowledge of this call and only obtained access to the internal investigation unit's file through the efforts of his appellate counsel. 48

importance of maintaining the integrity of internal affairs

investigations and the morale of police officers. See id. at

645. Subjecting internal investigations to automatic discovery

would strip away any assurance of confidentiality, potentially

chilling cooperation with investigation efforts. See id.

Even while shielding internal affairs records from

automatic disclosure, this court provided criminal defendants

with avenues to access any salient information contained within

internal affairs files. Under Wanis, 426 Mass. at 644, if a

prosecutor actually possesses police department internal affairs

records, the prosecutor must review that material in response to

a rule 14 motion. If a prosecutor does not possess such

records, a defendant may obtain the statements of percipient

witnesses contained within an internal affairs file via a motion

under Mass. R. Crim P. 17, as appearing in 378 Mass. 885 (1979).

See id. If a defendant desires additional information, a

summons for production must be sought and, if opposed, the

defendant must make a specific, good faith showing of relevancy

to a judge. See id. at 644-645.

Rodriguez, released together with Wanis, similarly involved

a defendant's request for internal investigation records about

an arresting police officer. See Rodriguez, 426 Mass. at 647.

This court in Rodriguez again ruled that police department

internal affairs records are not subject to automatic discovery 49

and fall outside the prosecutor's possession. See id. at 648.

In lockstep with Wanis, this court ordered the keeper of the

internal affairs records to produce all statements by percipient

witnesses to the defendant, pursuant to rule 17. See id. at

650.

Wanis and Rodriguez, together, place an explicit limitation

on a prosecutor's duty of inquiry by deeming records from police

department internal affairs divisions to be outside a

prosecution team's possession, custody, or control and,

therefore, outside the scope of prosecutors' disclosure

obligations under rule 14. This limitation does " nothing to

relieve the Commonwealth of its ongoing duty to disclose

exculpatory information -- including any material, exculpatory

information related to past discipline or internal investigation

of the officer in question -- to the extent such information is

in the possession, custody, or control of the prosecution team."

Commonwealth v. Cruz, 481 Mass. 1021, 1022 (2018).

Our case law defines the scope of the prosecution team in a

manner consistent with the limitations in Wanis. The

involvement of one police officer in a prosecution does not

render the entire police department part of the prosecution

team. See Commonwealth v. Daye, 411 Mass. 719, 734 (1992).

Indeed, law enforcement agents or personnel who are not involved

in the prosecution of a case do not become members of the 50

prosecution team merely because they hold potentially

exculpatory materials. See Commonwealth v. Campbell, 378 Mass.

680, 702 (1979) (prosecution had no duty to obtain potentially

exculpatory records maintained by correction officials). See

also Commonwealth v. Torres, 479 Mass. 641, 647-648 (2018)

(Attorney General was not member of prosecution team, despite

possessing relevant records, because Attorney General was not

involved in prosecutor's investigation).

While some courts consider police "personnel records,"

including internal affairs reports, to fall within a

prosecutor's disclosure obligations, see Milke, 711 F.3d at 1016

(imputing knowledge of police officer's personnel files,

including internal affairs files, to prosecution for purposes of

disclosure), Massachusetts is not alone in its reticence to open

internal affairs records to every criminal defendant. See

Denver Policemen's Protective Ass'n v. Lichtenstein, 660 F.2d

432, 437 (10th Cir. 1981) (using balancing test to "provide

safeguards against unlimited review" of police personnel and

inspection files). See e.g., State v. Roy, 151 Vt. 17, 31-33

(1989), overruled in part on other grounds by State v. Brillon,

2008 VT 35, ¶¶ 14-15 (internal investigation records held by

police were outside possession of prosecutor).

Indeed, even courts that disagree and conclude that

prosecutors constructively possess police department internal 51

affairs files acknowledge the importance of confidentiality

here. See, e.g., Robinson v. State, 354 Md. 287, 309 (1999)

("The confidentiality interest must be balanced, in this

context, against the confrontation and due process rights of the

defendant"). For example, United States v. Brooks, 966 F.2d

1500, 1504 (D.C. Cir. 1992), cited by the plaintiffs, cabins a

prosecutor's "duty to search" internal affairs files held by law

enforcement agencies to where "there is an explicit request for

an apparently very easy examination, and a non-trivial prospect

that the examination might yield material exculpatory

information." In ruling that internal affairs files may fall

within the prosecution's duty of inquiry under these conditions,

the Brooks court noted that "[a]s the burden of the proposed

examination rises, clearly the likelihood of a pay-off must also

rise before the government can be put to the effort." Id. In

other words, even if a prosecutor's duty of inquiry does extend

to internal affairs records, this duty is not automatically

triggered by the mere existence of such records. Rather, the

court in Brooks was careful to avoid imposing an unconditional

duty of inquiry on the prosecution.

Wanis and Rodriguez properly impose limits on a

prosecutor's duty of inquiry, specifically as it pertains to

internal affairs records. Therefore, we see no reason to

overturn these decisions, and we decline the plaintiffs' 52

invitation to do so. Accordingly, regarding the internal

affairs records identified by the DOJ in its report -- that is,

"over [one hundred] report files for over [one hundred] internal

investigations conducted by the [internal investigations unit],

as well as [seventy-four] personnel files" -- the affected

defendants may avail themselves of the disclosure procedures set

out in Wanis and Rodriguez.

c. Global remedy. The plaintiffs seek a variety of

remedies, mainly drawn from our actions in Bridgeman v. District

Attorney for the Suffolk Dist., 476 Mass. 298, 315 (2017)

(Bridgeman II).

In Bridgeman II, 476 Mass. at 299, this court crafted

procedures for relief in the face of Dookhan's misconduct and

its impact on more than 20,000 defendants. In deciding whether

to grant a global remedy in Bridgeman II, id. at 315, we

identified "four relevant principles of our criminal justice

system." First, the government alone bears the burden of taking

reasonable steps, including providing notice, to remedy

egregious misconduct in the investigation or prosecution of a

criminal case. Id. at 315-316. Second, relief from conviction

typically requires a defendant to file a motion for a new trial.

Id. at 316. Third, dismissal with prejudice is available where

either (a) a prosecutor fails to disclose evidence that the

defendant is entitled to receive and thereby "irremediabl[y]" 53

prejudices the defendant, or (b) the prosecutorial misconduct is

egregious, deliberate, and intentional, or results in a

violation of constitutional rights. Id. Fourth, where many

have been wronged, "we do not throw up our hands and deny relief

because it would be too difficult to accomplish." Id. at 317-

318. Rather, the remedy must be fair, timely, and practical.

Id. at 317. Together, these four principles guide our decision

in "how best to balance the rights of defendants affected by

governmental misconduct and society's interest in administering

justice." Committee for Pub. Counsel Servs., 480 Mass. at 723.

Global remedies are appropriate where, in their absence,

defendants wrongly would be forced to "bear the burden of a

systemic collapse" that is "entirely attributable to the

government." Hallinan, 491 Mass. at 748, quoting Bridgeman v.

District Attorney for the Suffolk Dist., 471 Mass. 465, 476

(2015) (Bridgeman I). However, when possible, case-by-case

adjudication remains "the fairest and best alternative" to

resolve individual cases potentially tainted by government

misconduct, as it is "most consistent and in harmony with the

relevant principles of criminal justice." Bridgeman II, 476

Mass. at 326. Case-by-case adjudication can be "adapted" as

necessary to make the process both "fair and workable." Id. It

is appropriate particularly where, as here, prosecutorial

misconduct is at issue, such that remedies should be "tailored 54

to the injury suffered and should not unnecessarily infringe on

competing interests." Committee for Pub. Counsel Servs., 480

Mass. at 725, quoting Commonwealth v. Carney, 458 Mass. 418, 427

(2010).

When faced with 20,000 cases affected by the misconduct of

Dookhan in Bridgeman II, 476 Mass. at 300-301, this court

eschewed the use of a global remedy and instead adopted a new

case-by-case protocol for adjudication. The facts are similar

here. Much like in Bridgeman II, id. at 314-315, the plaintiffs

allege that the district attorney's office has fallen short in

its prosecutorial duty of disclosure, creating a risk of harm to

criminal defendants. Likewise, as in Bridgeman II, id. at 308,

the need to identify the defendants who may have been affected

by the misconduct remains urgent. Therefore, as in Bridgeman

II, id. at 322, a global remedy is "neither as just nor as

practical" as case-by-case adjudication here.

This is particularly true where the district attorney's

office already has made necessary reforms to its disclosure

policies in response to this litigation. The district

attorney's office now has an annual practice of requesting that

police departments provide the names and supporting information

of any officers who have been charged with a crime, found to be

untruthful, or who have engaged in misconduct. These officers

then are included in the new internal database created and 55

maintained by the district attorney's office of Brady material,

which is available to all assistant district attorneys and is

organized by officer names. The database includes law

enforcement employees who have engaged in either criminal

activity, deceitful behavior, or a pattern of discrimination.

To put this database into action, the district attorney's office

has developed a system to flag internal files for cases

requiring disclosure. Further, the district attorney's office

has formed a "Brady Working Group" to formulate new disclosure

practices. This group developed a new "Brady Policy" for the

district attorney's office that sets out disclosure obligations

and procedures and "err[s] on the side of disclosure." To

ensure compliance and mitigate any risk of error, the district

attorney's office has also instituted an "Exculpatory Evidence

Team" to review disclosure questions.

Even with the aforementioned reforms in place, the

plaintiffs unsuccessfully have sought access to the information

underlying the DOJ report for years.9 The remedy here is simple:

9 The case of plaintiff Lopez provides an example of the plaintiffs' efforts to obtain the documents from the department that underlie the DOJ report. Lopez was a defendant in two criminal cases in Hampden County. After the publication of the DOJ report in July 2020, Lopez's CPCS defense attorney undertook efforts to determine whether the officers in Lopez's case were implicated by the DOJ report. These efforts continued over the course of approximately eighteen months. In January 2022, the district attorney's office sent over 1,000 pages of files from the department's internal investigations unit to Lopez's defense 56

all defendants affected by the department's misconduct should

have access to all materials known to have been reviewed by the

DOJ in drafting its report.

To reiterate, because the DOJ will not divulge which

specific documents it relied upon in drafting its report, the

district attorney's office must "err on the side of caution and

disclose" the five categories of the department's records that

the DOJ is known to have reviewed: (1) the department's

policies and procedures; (2) the department's training materials

related to the use of force and accountability; (3) the

department's internal affairs protocols; (4) materials related

to the general operations of the department and its use-of-force

practices in particular; and (5) to the extent they do not fall

within the ambit of Wanis and Rodriguez, arrest and use-of-force

reports from 2013 to 2018 and prisoner injury files from 2013 to

2019. See Matter of a Grand Jury Investigation, 485 Mass. at

650. The DOJ has provided no further information about the

materials underlying its investigation, so the district

attorney's office must disclose what evidence it knows to be

discoverable.

We realize that this necessarily entails the disclosure and

subsequent review of a large number of the department's records.

counsel. In March 2022, while his defense counsel was combing through these documents, Lopez pleaded guilty. 57

However, in light of the DOJ's finding in its report of a

pattern or practice of misconduct and excessive force within the

department, every underlying document has the potential to hold

exculpatory value for a criminal defendant. See Matter of a

Grand Jury Investigation, 485 Mass. at 650. Moreover, handing

over all information that tends to exculpate criminal

defendants -- a so-called "information dump" -- is the very

disclosure requested by the plaintiffs. See id. It is the role

of defense counsel to then sort through the information provided

by the district attorney's office for relevant and exculpatory

evidence -- it is not the responsibility of the district

attorney's office to investigate on their behalf. See Beal, 429

Mass. at 532. See also Commonwealth v. Pisa, 372 Mass. 590,

595, cert. denied, 434 U.S. 869 (1977) ("a prosecutor cannot be

expected to appreciate the significance of every item of

evidence in his possession to any possible defense which might

be asserted by the defendant"). Indeed, through total

disclosure of the information underlying the DOJ report,

defendants can have access to all potentially exculpatory

information, and need not rely on any other agency to conduct a

preliminary review that may actually limit their access to

relevant, exculpatory information.

All records will be disclosed subject to a protective

order. See Mass. R. Crim. P. 14 (a) (6) ("The judge may, for 58

cause shown, grant discovery to a defendant on the condition

that the material to be discovered be available only to counsel

for the defendant"). See also Committee for Pub. Counsel

Servs., 480 Mass. at 733 ("Absent a protective order, no

prosecutor, whether in the office of the Attorney General or in

the office of a district attorney, has the authority to decline

to disclose exculpatory information"). Because the plaintiffs

sought relief from a single justice under our general

supervisory authority, the district attorney's office and

organizational plaintiffs will work together to disseminate the

materials under the protective order. See Commonwealth v.

Mitchell, 444 Mass. 786, 795 (2005) (judge "has some measure of

inherent authority" to issue protective orders). See also

Bridgeman II, 476 Mass. at 300-301. See generally Commonwealth

v. Holliday, 450 Mass. 794, 803, cert. denied sub nom. Mooltrey

v. Massachusetts, 555 U.S. 947 (2008) (decisions surrounding

protective order typically within discretion of trial judge).

Any further determinations about the protective order also will

be decided by the single justice. See Mass. R. Crim. P.

14 (a) (7) ("the judge may alter or amend the previous order or

orders as the interests of justice may require"). This includes

determining the scope of the five categories of documents

identified within the DOJ report. In order to ensure that such 59

a sweeping disclosure is usable by defense counsel, it will be

made in an electronic format with optical character recognition.

After the underlying categories of documents have been

disclosed to the plaintiffs, and individual cases and defendants

affected by the department's systemic misconduct have been

identified, case-by-case adjudication can begin in earnest. See

Bridgeman II, 476 Mass. at 326 (success of case-by-case

adjudication depends on cooperation of district attorneys and

defense counsel alike). This measure, together with the

cessation of ongoing practice of the district attorney's office

as detailed above, will provide criminal defendants in Hampden

County with access to exculpatory information that they

constitutionally are entitled to possess.

3. Conclusion. We exercise our general superintendence

authority to ensure that the disclosure and investigation

procedures of the district attorney's office match the scope of

the inescapable constitutional duties of that office. See G. L.

c. 211, § 3. First, the discretionary approach of the district

attorney's office to disclosing adverse credibility

determinations made about the department's officer witnesses

violates the duty of the district attorney's office to disclose.

Second, the policy of the district attorney's office of not

disclosing instances of officer misconduct when the identity of

the offending officer cannot be clearly proven violates the duty 60

of the district attorney's office to disclose. Third, we

require that the district attorney's office obtain all records

from the department that are known to have been reviewed by the

DOJ and, subsequently, disclose them in an electronic format

with optical character recognition, subject to a protective

order. Through these measures, this court provides prosecutors

across the Commonwealth with a clearer understanding of their

obligations, and further provides defendants in Hampden County

with the means of accessing potentially exculpatory materials

underlying the DOJ report.

The case is remanded to the single justice for the entry of

a declaratory judgment as provided in this opinion and for

further action consistent with this opinion.

So ordered. LOWY, J. (concurring, with whom Cypher, J., joins). I

agree that the practice of the office of the district attorney

for the Hampden district (district attorney) of disclosing

adverse credibility determinations and instances of officer

misconduct when the offending officer's identity is not clearly

proven only on a discretionary basis is violative of the

district attorney's duty of disclosure. I also agree with the

court's determination that the United States Department of

Justice (DOJ) report's findings triggered the district

attorney's duty to investigate. I write separately for two

reasons: (1) to emphasize that, even though adverse credibility

findings fall within a prosecutor's duty of disclosure, not

every adverse credibility determination by a judge as to a

police officer's credibility constitutes a finding that the

officer was lying; and (2) to delineate the difference between

the duty of investigation and the duty of inquiry.

Adverse credibility findings. The special master's report

in this case importantly notes that a judge's credibility

finding as to a police witness involves evaluating an amalgam of

factors, including but not limited to the police witness's

observations, perceptions, memories, and biases. An adverse

credibility finding that a judge elected not to "credit" a

witness does not inherently reflect a conclusion that a witness

was lying or that a witness was not credible with respect to 2

other matters. There is danger in assuming otherwise, given the

centrality of credibility determinations to a given police

officer's career and, more importantly, to the integrity of a

police department's criminal cases. While all adverse

credibility determinations are exculpatory and must be turned

over, the nature of the finding may affect the admissibility of

the evidence and the nature of rehabilitation of the police

witness if so impeached.

Where a judge fails to credit a police witness, and that

finding is disclosed to the defendant, as it must be in cases in

which that police officer has been or might be a witness, the

special master recognized that "this standard means that every

police officer's career is on the line every time the officer

testifies before any judge. That result . . . is inherent in

the serious responsibility each police officer accepts in taking

on the role." When an adverse credibility determination is

based upon a police witness's lack of testimonial faculties1 --

as opposed to a finding that a police witness testified

untruthfully -- this is not the type of credibility finding that

should hinder an officer's usefulness in investigations or end

1 For instance, a finding that an officer was not wearing his prescription glasses at the time he made an observation. 3

an officer's career.2 And the nature of the adverse credibility

finding may well affect the admissibility of such evidence.

Although, "[i]n general, specific instances of misconduct

showing the witness to be untruthful are not admissible for the

purpose of attacking or supporting the witness's credibility"

under Mass. G. Evid. § 608(b) (2023), "we have 'chiseled a

narrow exception' to this general rule, 'recognizing that in

special circumstances the interest of justice forbids strict

application of the rule.'" Matter of a Grand Jury

Investigation, 485 Mass. 641, 651 (2020), quoting Commonwealth

v. LaVelle, 414 Mass. 146, 151 (1993). See also Commonwealth v.

Bohannon, 376 Mass. 90, 94 (1978), S.C., 385 Mass. 733 (1982);

Miller v. Curtis, 158 Mass. 127, 131 (1893). Most recently, and

most applicable in this instance, in Matter of a Grand Jury

Investigation, supra at 652, we addressed a variety of factors a

2 In light of the centrality of an investigating police officer's credibility to effectively prosecuting a crime, an officer's credibility is often directly linked to his or her capacity to perform essential investigatory functions. When a given officer's credibility is compromised, so too may the broader aims of past and present investigations linked to that officer be compromised. Accordingly, police departments, to ensure the integrity of their cases, may elect not to use officers with adverse credibility determinations in investigations moving forward. When an adverse credibility determination is based on a finding other than that a police officer lied, such intense consequences unjustifiably deprive an officer of his or her capacity to continue serving the public honestly, which in turn deprives the public of its interest in justice. 4

judge may consider is deciding whether a police officer witness

may be impeached with prior misconduct. In other words, a

finding that the judge credited the testimony of a civilian

witness over the testimony of a police officer may simply be the

result of the judge's determination that the civilian witness

was closer to the event or that the civilian witness's testimony

was corroborated by another witness (who him- or herself may

have lied). Moreover, when adverse credibility findings are

admissible for impeachment purposes against a police witness,

rehabilitation of that witness may include evidence pointing out

the nature of the finding or even calling a character witness

for truthfulness under Mass. G. Evid. § 608(a) ("evidence of

truthful character is admissible only after the witness's

character for truthfulness has been attacked").

We all see things through the prism of our own experience,

and witnesses may observe the same event differently for a

multiplicity of reasons. That does not make one witness a liar.

If we want to encourage the best and brightest to consider law

enforcement careers, we must distinguish between different kinds

of adverse credibility findings. That each adverse credibility

finding is exculpatory to a certain extent does not, in and of

itself, mean that each adverse credibility finding should be

admissible in evidence or result in unwarranted or calamitous

consequences for the officer, and ultimately the public. 5

The duty to learn of exculpatory information. It is well

established that a prosecutor 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). In general, however, our past delineation of

the duty to learn of exculpatory information has at times

suffered from a lack of precision, leaving prosecutors without

clear guidance as to their obligations regarding what defense

counsel is entitled to in discovery. We have expounded upon a

prosecutor's duty to learn of exculpatory information in a

variety of contexts -- referring to this duty to learn as both a

duty to inquire and a duty to investigate. See Commonwealth v.

Frith, 458 Mass. 434, 440–441 (2010) ("'Reasonableness' is the

only limitation on the prosecutor's duty of inquiry"). Compare

Commonwealth v. Campbell, 378 Mass. 680, 702 (1979) (holding

prosecutor had no "duty to investigate" Department of Correction

records "in the remote hope of discovering something that might

tend to exculpate the defendants"), with Commonwealth v. Cotto,

471 Mass. 97, 115 (2015) ("It is imperative that the

Commonwealth thoroughly investigate the timing and scope of

[State chemist Sonja] Farak's misconduct at the [State

Laboratory Institute in Amherst (Amherst drug lab)]"), and Ware,

supra ("the Commonwealth had a duty to conduct a thorough 6

investigation to determine the nature and extent of [Farak's]

misconduct"). Though somewhat murky, our case law implicitly

reveals how a prosecutor's obligation to learn of exculpatory

information takes shape differently depending on the context of

a case. One discernable distinguishing factor among these cases

is the extent to which the district attorney is already aware of

the existence of exculpatory information.

In both Cotto and Ware, for example, we held that the

Commonwealth's failure to investigate properly the scope of the

known misconduct of Farak at the Amherst drug lab violated the

duty to learn of exculpatory information. See Cotto, 471 Mass.

at 115 (duty of investigation case concerning Commonwealth's

failure to investigate scope and timing of misconduct of State

chemist); Ware, 471 Mass. at 95 (same). Neither case used the

phrase "duty of inquiry" or similar language, nor did either

case discuss reasonableness as a pertinent limitation on the

prosecutor's duty to learn of exculpatory information. See

generally Cotto, 471 Mass. 97; Ware, 471 Mass. 85.

In Commonwealth v. McFarlane, 493 Mass. (2024),

unbeknownst to the prosecutor, one of the testifying police

witnesses had had an allegation of misconduct unrelated to the

prosecutor's case levied against him. Id. at . There, we

did consider the reasonableness of the prosecutor's inquiry,

ultimately holding that no violation of the duty to learn of 7

exculpatory information had occurred. Id. at . See Frith,

458 Mass. at 440-441 (duty of inquiry case concerning

prosecutor's failure to inquire of police department whether any

additional reports related to incident that resulted in charges

against defendant existed beyond one report prosecutor was aware

of and had already disclosed to defense counsel); Commonwealth

v. Donahue, 396 Mass. 590, 598-599 (1986) (duty of inquiry case

concerning circumstances under which prosecutor is not obligated

to inquire of exculpatory evidence in Federal Bureau of

Investigation's possession).

From these cases, as well as from our broader jurisprudence

in this area, we can discern an important, albeit implicit,

principle about how a prosecutor can meet his or her obligation

to learn of exculpatory information: in cases involving a

prosecutor knowing about certain exculpatory information and

failing to investigate –- duty of investigation cases –- the

limit of a prosecutor's duty is determined by a need to uncover

the scope of the known misconduct; and in cases involving a

prosecutor having no knowledge about certain exculpatory

information –- duty of inquiry cases –- the limit of a

prosecutor's duty is reasonableness.

The instant case is most akin to Cotto and Ware, the duty

of investigation cases. Here, the district attorney already has

knowledge of a pattern of misconduct in the Springfield police 8

department and has failed to investigate department records

known to have been reviewed by the DOJ. The district attorney

is obligated to learn of the scope of the misconduct so that it

can properly meet its duty to investigate and ultimately its

duty to disclose. The reasonableness of pretrial inquiries into

what exculpatory information members of the prosecution team may

be aware of –- the duty of inquiry -- is not at issue.

I write separately to note that although our case law has

been far from clear on this issue, we should avoid conflating

the duty of investigation and the duty of inquiry and seek to

develop the contours of the duty of inquiry only in cases

involving potentially exculpatory information unknown to the

prosecutor but possibly known to one or more members of the

prosecution team.