remanding for further findings; “judge must allow the defendant access to the nonprivileged records, so that he may consider whether being deprived of them at trial made his trial unfair”
How later courts described this case
- remanding for further findings; “judge must allow the defendant access to the nonprivileged records, so that he may consider whether being deprived of them at trial made his trial unfair”
- same approach taken under Bishop-Fuller protocol
Written by the judges who cited it.
The opinion
Cowin, J.
(concurring, with whom Sosman, J., joins). On the assumption that the Bishop-Fuller protocol (see Commonwealth v. Bishop, 416 Mass. 169, 181 [1993]; Commonwealth v. Fuller, 423 Mass. 216, 226 [1996]) continues to have any vitality, I concur with the result reached by the court. However, I adhere, as previously, to the view expressed by Justice Sosman, Commonwealth v. Sheehan, 435 Mass. 183, 194 (2001) (Sosman, J., concurring), that the protocol governing access to these types of records is “both unduly cumbersome and constitutionally flawed.”