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How to Summons or Subpoena Evidence for a Criminal Case in Massachusetts, Rule 17 and Commonwealth v. Lampron, 441 Mass. 265 (2004)

This process used to be so easy. Simply draft a subpoena identifying the materials you wanted and have it served on the keeper of the records for the entity in possession of the materials. Some lawyers had summons direct delivery to their law office. Others had it delivered to the clerk’s office where the case was pending. Sometimes the criminal defense lawyer would get a call from one of the assistant clerks telling him that the documents were delivered and available for photocopying. Some clerks might tell the lawyer that the material was too voluminous for the clerk’s office to keep so the lawyer was instructed by the clerk to keep it himself. If the material was not delivered the defense lawyer would ask for the judge to order compliance with the subpoena. The keeper of the records would then have to produce the material or appear, usually with counsel, and state why the records could not be produced.


The Massachusetts Criminal Summons Process Post-Lampron

In 2004, following the Massachusetts Supreme Judicial Court’s decision in Commonwealth v. Lampron, 441 Mass. 265 (2004), this all changed. A strict compliance with Massachusetts Rule of Criminal Procedure 17 became implemented. So what do lawyers now have to do? The initial step is to file a motion in court identifying the documents or other items sought. This motion must be specific. Next, the motion must also be accompanied by an affidavit of the attorney representing the moving party. The affidavit must address the relevance of the material sought. If the affidavit contains hearsay the source of the hearsay must be disclosed or at a minimum be evident from the wording in the affidavit. In other words, making the request based on information and belief can in some cases suffice so long as the information can be deemed reliable by the judge. Additionally, the records requested must be admissible. Finally, it is necessary to show that the material you are seeking is necessary to your defense. Potential relevance or potential necessity are inadequate grounds for the issuance of a Rule 17 subpoena. While it is not necessary, it is a good practice to cite a case supporting relevance. Judges look to cases for authority to make rulings. They are more inclined to rule in your favor if there is a case that suggests they do so.

How to Serve “Lampron” Subpoenas in Massachusetts

Service of the subpoena is now made in several ways. In some Massachusetts courts the clerk’s office will prepare and serve the summons. Some courts will not follow this procedure thereby leaving that job to the defendant’s attorney. In such case service can be made through a constable or disinterested person over the age of eighteen.

What Records Can be Subpoenaed in Massachusetts?

Just about anything can be subpoenaed or summonsed in Massachusetts. We have used this process for medical records, school records, documents from public entities such as the sheriff’s office or social service agencies. Keep in mind however that just because documents are subpoenaed does not necessarily mean that they will be produced. Most entities have legal counsel who scrutinize the summons. If they believe that it issued improperly they will move to quash the summons. Make sure you are armed with legal authority to oppose the motion to quash and compel production.

The Law Offices of Stephen Neyman has used the Rule 17-Lampron process to access records that have resulted in acquittals for your clients. If you need a lawyer call us at 617-263-6800 or send us an email. We will help you.