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The Massachusetts Criminal Reciprocal Discovery Process At A Glance: Commonwealth v. Durham, 446 Mass. 212 (2006)

Until 2006 the criminal law discovery process in Massachusetts created, at least in some cases, a level playing field. The prosecution was obligated, with limited exception, to surrender all of its evidence to the defense. This duty required disclosure of all known witnesses, their statements, evidence of which the district attorney had knowledge, all exculpatory evidence and more. The defense on the other hand was required to do no more than provide the district attorney with a list of witnesses it would call at trial along with their addresses and dates of birth. The only exception to this involved the use of expert witnesses whose opinions and the basis therefore had to be disclosed in a manner that gave the prosecution adequate notice of their anticipated testimony.


As a practical matter, in the district courts civilian witness lists were provided to the prosecutor on the date of trial. More notice was given to the prosecutor in the superior court. The prosecutor could go out and interview the witness. A police detective usually does the interview. The witness is under no obligation to talk to the prosecution and the prosecution would then have to anticipate what this witness might say at trial. This system was fair. The defendant’s witness is going to offer testimony that will help him at trial. Many of these witnesses know that the police are not going to accurately report what they have to say so they choose to say nothing. Instead, they talk to the defense attorney who prepares them for testifying at trial. This system enabled the defense to expose flaws in the government’s case without alerting them to what was coming. The defense could also get statements from perspective prosecution witnesses and use them to cross-examine and impeach that person after her or she was called by th district attorney at trial. Criminal defense lawyers know that people lie in court. Cops lie in court. Being able to expose the lie before a judge or jury through witness testimony made the system work. The rules promoted fairness.

That all changed once Commonwealth v. Durham was decided. In Durham, a pretrial order compelled the defense to produce all statements it had for any potential witness, even those the defense was not going to call at trial. The Court held that Massachusetts favors “liberal discovery” rules and that requiring the defense to provide witness statements “makes for a fair trial and enhances the likelihood that the truth will come out”.

In my opinion, nothing is farther from the truth. This decision abrogates the Constitutional right to confrontation provided by the 6th Amendment to the United States Constitution. The prosecution should not be warned in advance that the defense intends to show a jury that one of its witnesses has lied. There is and should be a certain element of surprise to confrontation from the defense perspective. That is what makes the system work. Cross-examination is a check against lying prosecution witnesses. Make no mistake about it…witnesses do lie. Permitting the district attorney access to statements of witnesses only enables the prosecution to explain, if not cover up flaws in its case. The Durham rule emasculates the potency of the right to confrontation. This suggestion has been recognized not just by me but by the dissent as well. Durham was a 4-3 decision. Challenging the Durham rule is something that most experienced Massachusetts criminal defense lawyers do at every stage of the proceedings. Some lawyers take the approach that the word “statements” limits the reciprocal discovery obligation to written or recorded statements and that there is no duty to disclose statements that were made by the witness orally. Whether or not this is the case you need to make sure that if the statement is something critical to your defense that your are not foreclosed from using it due to an accusation of a Durham violation.

The Law Offices of Stephen Neyman, PC has been fighting for the rights of the accused for nearly twenty-seven years. Call us at 617-263-6800 or send us an email if you have a criminal problem. We can help you.