Commonwealth v. Mcfarlane

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SJC-13430

COMMONWEALTH vs. DENZEL MCFARLANE.

Hampden. September 11, 2023. - January 23, 2024.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,

& Georges, JJ.1

Evidence, Disclosure of evidence, Exculpatory. Practice,

Criminal, New trial, Disclosure of evidence, District

attorney. District Attorney. Police Officer.

Complaint received and sworn to in the Springfield Division

of the District Court Department on July 10, 2017.

The case was tried before Robert S. Murphy, Jr., J., and a

motion for a new trial, filed on August 19, 2020, was heard by

him.

After review by the Appeals Court, the Supreme Judicial

Court granted leave to obtain further appellate review.

Laurence J. Cohen for the defendant.

Rebecca A. Jacobstein, Committee for Public Counsel

Services, for Committee for Public Counsel Services & another.

David L. Sheppard-Brick, Assistant District Attorney, for

the Commonwealth.

Patrick Hanley (Elizabeth K. Keeley also present) for State

Police Association of Massachusetts.

1 Justice Cypher participated in the deliberation on this

case and authored her concurrence prior to her retirement.

2

Shoshana E. Stern, Assistant District Attorney, for

District Attorney for the Berkshire District & others, amici

curiae, submitted a brief.

John P. Zanini & Cailin M. Campbell, Assistant District

Attorneys, for District Attorney for the Plymouth District &

others, amici curiae, submitted a brief.

GAZIANO, J. On February 11, 2020, the defendant, Denzel

Mcfarlane, was convicted of unlawful possession of a firearm and

other related charges by a jury in the Springfield Division of

the District Court Department.2 Ten days later, Officer Daniel

Moynahan of the Springfield police department, who had arrested

and testified against the defendant, was found civilly liable

for false arrest and false imprisonment in an unrelated lawsuit.

See Bradley vs. Cicero, U.S. Dist. Ct., No. 3:18-cv-30039-MGM

(D. Mass. Feb. 21, 2020).

Upon learning of this civil lawsuit and verdict against

Moynahan from an online news publication, the defendant filed a

motion for a new trial, asserting that the existence of the

lawsuit against Moynahan, still pending at the time of trial,

was exculpatory information that the Commonwealth should have

disclosed to the defense, but failed to do so. The District

Court judge who had presided over the defendant's trial denied

his motion. The Appeals Court agreed that a new trial was

2 The defendant was also convicted of unlawful possession of

ammunition and improper storage of a firearm.

3

unwarranted and affirmed the denial. Both parties then filed

applications for further appellate review, which we granted.

The question presented in this case is whether the

existence of a pending civil lawsuit against a police officer

must be disclosed by a prosecutor as exculpatory evidence. We

answer that question in the negative. Until a finding of

liability has been made, a pending civil lawsuit constitutes an

unsubstantiated allegation of police misconduct that does not

tend to negate the guilt of a defendant. We therefore affirm

the denial of the defendant's motion for a new trial.

Finally, as in Graham v. District Attorney for the Hampden

Dist., 493 Mass. (2023), also released today, we address the

parameters of the prosecutorial duty of inquiry. Although a

prosecutor has no duty to inquire into pending civil lawsuits

against a prosecution team member, we conclude that the duty of

inquiry does require that prosecutors inquire about the

existence of any findings of civil liability related to the

performance of a police officer's duties.3

1. Background. a. Facts. On review of a judge's denial

of a defendant's motion for a new trial, "[w]e recite the

3 We acknowledge the amicus briefs submitted by the

Committee for Public Counsel Services and American Civil

Liberties Union of Massachusetts; the State Police Association

of Massachusetts; and the district attorneys for the Plymouth,

Berkshire, Bristol, Cape and Islands, eastern, Norfolk,

northwestern, and middle districts.

4

relevant facts as found by the motion judge, supplemented by the

record." Commonwealth v. Yat Fung Ng, 489 Mass. 242, 243

(2022), S.C., 491 Mass. 247 (2023).

i. Officers' version. On the afternoon of July 7, 2017,

Moynahan and Officer Brian Phillips were on patrol when they

noticed a black Infiniti G37. After entering the Infiniti's

license plate number into the cruiser's mobile data terminal,

the officers learned that the license plate was registered to a

different vehicle and that the registration had previously been

revoked for lack of insurance. Both officers observed the

defendant park the vehicle, exit, and approach the front bumper,

leaving the driver's side door open. The officers could also

see a female passenger sitting in the front seat and at least

one child sitting in the back seat.4

After activating the cruiser's emergency lights and pulling

up to the Infiniti, Phillips got out of his cruiser and

approached the defendant, while Moynahan approached the

passenger's side of the Infiniti. Phillips asked the defendant

for his driver's license, which he did not have. Phillips then

brought the defendant toward the rear of the vehicle to question

him further. While walking past the open driver's side door,

4 It is unclear how many children were in the Infiniti. At

trial, the officers testified that they observed one toddler in

the back seat, while the defendant and the female passenger

testified that there were two children in the back of the car.

5

Phillips observed a firearm lodged between the driver's seat and

the center console. When asked by Phillips if he had a license

to carry the firearm, the defendant stated that he did not.

Phillips then arrested the defendant, placing him in the cruiser

in handcuffs.

After Phillips informed Moynahan of the presence of the

firearm, Moynahan ordered the female passenger out of the

vehicle and placed her in handcuffs. Moynahan testified that,

upon witnessing this, the defendant yelled from the back of the

police cruiser, "She has nothing to do with it. It's not hers."5

Moynahan then uncuffed the female passenger. After the police

photographed the firearm inside the Infiniti, Moynahan removed

the firearm and secured it, emptying nine bullets from the

magazine. The officers permitted the other occupants of the car

to leave and transported the defendant to the police station.

During the booking procedure, the defendant stated that the

firearm had been loaded with four bullets.

ii. Defendant's version. The defendant testified to a

different version of events at trial in several respects. Most

notably, the defendant testified that he had no knowledge of the

firearm, having just purchased the Infiniti from a third party

shortly before his arrest. The defendant also claimed that he

5 Phillips similarly testified that the defendant shouted,

"It's mine, not hers. Let her go."

6

had stepped out of his new vehicle to fix its splash guard when

Phillips suddenly approached him, grabbed and handcuffed him,

and placed him in the back of the cruiser. Phillips then

returned to the cruiser, holding a firearm, and asked the

defendant why he did not tell Phillips about it. The defendant

denied witnessing the female passenger being placed in

handcuffs, and he likewise denied that he yelled any statement

about the firearm from the back of the cruiser. Lastly,

although the defendant acknowledged that he had stated, while

being booked, that the firearm was loaded with four bullets, he

explained that he had been informed by Moynahan of this fact

when Moynahan, having disassembled the firearm in the police

cruiser, mentioned the presence of four bullets.

iii. Civil lawsuit. In March 2018, a civil lawsuit was

brought against Moynahan by Daniel Bradley, who had been

arrested during a motor vehicle stop in Springfield by Moynahan

and two other officers. In his action, Bradley asserted various

constitutional, statutory, and common-law claims against

Moynahan, including unlawful seizure and arrest, false

imprisonment, false arrest, excessive force, assault and

battery, malicious prosecution, abuse of process, and

intentional infliction of emotional distress. On February 21,

2020, Moynahan was found liable for false arrest and false

7

imprisonment. Shortly thereafter, the defendant learned about

this lawsuit from an online publication.

b. Procedural history. The defendant was arraigned at the

Springfield Division of the District Court Department on July

10, 2017. He was charged with eight counts, including unlawful

possession of ammunition, G. L. c. 269, § 10 (h); unlawful

possession of a firearm, G. L. c. 269, § 10 (a); and improper

storage of a firearm, G. L. c. 140, § 131L.6 The defendant's

trial began in February 2020. On February 11, the jury found

the defendant guilty of unlawful possession of a firearm,

unlawful possession of ammunition, and improper storage of a

firearm.

In August 2020, the defendant filed a motion for a new

trial, asserting that the allegations against Moynahan in the

civil lawsuit -- and indeed the lawsuit's very existence --

constituted exculpatory evidence requiring disclosure by the

Commonwealth. On July 2, 2021, after a nonevidentiary hearing,

the District Court judge who had presided at the defendant's

6 On February 7, 2020, the prosecutor entered nolle

prosequis with respect to the other five counts: operation of

an uninsured motor vehicle, G. L. c. 90, § 34J; operation of an

unregistered motor vehicle, G. L. c. 90, § 9; operation of a

motor vehicle without a valid inspection sticker, G. L. c. 90,

§ 20; operation of a motor vehicle with a revoked license as a

habitual traffic offender, G. L. c. 90, § 23; and attaching a

number plate assigned to another vehicle to conceal

identification, G. L. c. 90, § 23.

8

trial issued a written decision denying the defendant's motion

for a new trial.

The defendant timely appealed from his convictions and from

the denial of his motion for a new trial. The Appeals Court

affirmed the defendant's convictions and the order denying the

defendant's motion for a new trial. See Commonwealth v.

Mcfarlane, 102 Mass. App. Ct. 264, 277 (2023). In May 2023, we

granted the parties' applications for further appellate review

limited to the issues raised in connection with the denial of

the defendant's motion for a new trial.7

2. Discussion. a. Motion for a new trial. In denying

the defendant's motion for a new trial, the motion judge

concluded that the then-pending civil lawsuit against Moynahan

"was not Brady material" that the prosecutor was obligated to

disclose, reasoning that the prosecutor was not aware of the

7 An order from a single justice of this court also

permitted the parties in this case to brief whether the

defendant is entitled to a new trial based on failure to

instruct the jury on the issue of licensure under Commonwealth

v. Guardado, 491 Mass. 666, 690-693, S.C., 493 Mass. 1 (2023).

We review for whether the error was harmless beyond a reasonable

doubt. See Commonwealth v. Bookman, 492 Mass. 396, 401 (2023).

Here, Phillips offered uncontested testimony that the defendant

admitted he did not possess a license to carry a firearm. See

id. (when officer testifies to lack of license and there is

"nothing in the record to suggest that the defendant disputed

this testimony, or that the officer's credibility was in

question," failure to instruct is harmless beyond reasonable

doubt). Accordingly, we conclude that the defendant is not

entitled to a new trial on this basis.

9

lawsuit's existence, the lawsuit was neither requested by the

defendant nor related to his case, and the lawsuit could have

been discovered by defense counsel through independent

investigation given that it was not impounded. See Brady v.

Maryland, 373 U.S. 83, 87 (1963). The judge further reasoned

that the lawsuit would not have been admissible at the

defendant's trial to impeach Moynahan but that, even assuming

that it would have been admissible and that the prosecutor had

been obligated to disclose it, the defendant would not have

suffered any prejudice because it "would have functioned only as

impeachment evidence in a case where the testimony of Moynahan

was duplicated by, and less essential than, the untainted

testimony of Phillips."

On appeal, the defendant argues that the motion judge erred

in denying his motion for a new trial, as the Commonwealth's

failure to disclose the pending civil lawsuit against Moynahan

violated the prosecutor's duty of disclosure. "The decision to

deny a motion for a new trial lies within the sound discretion

of the judge and will not be reversed unless it is manifestly

unjust or the trial was infected with prejudicial constitutional

error." Commonwealth v. Jenkins, 458 Mass. 791, 803 (2011).

"To obtain a new trial on the basis of nondisclosed

exculpatory evidence, a defendant must establish (1) that 'the

evidence [was] in the possession, custody, or control of the

10

prosecutor or a person subject to the prosecutor's control'; (2)

'that the evidence is exculpatory'; and (3) 'prejudice'"

(citation omitted). Commonwealth v. Sullivan, 478 Mass. 369,

380 (2017). Setting aside the motion judge's determination on

the first and third factors, we examine the second: whether the

existence of a pending civil lawsuit against a member of the

prosecution team, Moynahan, tended to exculpate the defendant.

See id. See also Matter of a Grand Jury Investigation, 485

Mass. 641, 649 (2020).

"To prevail on a claim that the prosecution failed to

disclose exculpatory evidence, the defendant must first prove

that the evidence was, in fact, exculpatory." Commonwealth v.

Healy, 438 Mass. 672, 679 (2003). Exculpatory evidence is "not

a narrow term" here, but rather includes all evidence that tends

to negate the guilt of the accused. Id., quoting Commonwealth

v. Pisa, 372 Mass. 590, 595, cert. denied, 434 U.S. 869 (1977).

This includes evidence that "provides some significant aid to

the defendant's case, whether it furnishes corroboration of the

defendant's story, calls into question a material, although not

indispensable, element of the prosecution's version of events,

or challenges the credibility of a key prosecution witness."

Matter of a Grand Jury Investigation, 485 Mass. at 647, quoting

Commonwealth v. Ellison, 376 Mass. 1, 22 (1978).

11

While our conception of exculpatory evidence is rightfully

broad, it is not boundless. The civil lawsuit at issue here

exceeds those bounds. By virtue of being both (1) civil, rather

than criminal, and (2) pending, rather than fully adjudicated,

pending civil lawsuits are not exculpatory and are not subject

to automatic disclosure requirements. See Graham, 493 Mass.

at .

We reach this conclusion for several reasons. Most

notably, the civil pleading stage only requires "factual

'allegations plausibly suggesting'" an entitlement to relief.

Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008),

quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

Therefore, until there is a finding of liability, a pending

civil lawsuit may well be without merit. Moreover, the standard

for the initiation of a civil lawsuit is lower than the

corresponding standard and procedures for the initiation of a

criminal prosecution. See W.L. Prosser & W.P. Keeton, Torts §

120, at 893 (5th ed. 1984) (less needed to justify bringing

civil suit versus criminal prosecution). See also Commonwealth

v. DiBennadetto, 436 Mass. 310, 313 (2002) (defendant may move

to dismiss criminal complaint issued by magistrate for lack of

probable cause); Lataille v. District Court of E. Hampden, 366

Mass. 525, 532 (1974) (grand jury serve "dual function of

determining whether there is probable cause to believe a crime

12

has been committed and of protecting citizens against unfounded

criminal prosecutions"). As a result of these distinctions,

pending civil lawsuits would most accurately constitute

unsubstantiated allegations of misconduct and not exculpatory

information. See United States Department of Justice, Justice

Manual, tit. 9-5.100(6) (updated Jan. 2020)

[https://perma.cc/NKL2-YZ2J] (Justice Manual) ("Allegations that

cannot be substantiated . . . generally are not considered to be

potential impeachment information").

Here, even assuming Moynahan was a key prosecution witness,

the defendant would not have been able to meaningfully challenge

his testimony with what, at the time, amounted to

unsubstantiated allegations of police misconduct. Therefore,

the then-pending civil lawsuit did not tend to negate the

defendant's guilt, and the defendant's motion for a new trial,

predicated on the Commonwealth's failure to disclose exculpatory

evidence, was rightfully denied. See Sullivan, 478 Mass. at

380, citing Commonwealth v. Murray, 461 Mass. 10, 19, 21 (2011)

(information must be proved exculpatory).

b. The duty of inquiry and findings of civil liability.

In affirming the denial of the defendant's motion for a new

trial in this case, we caution that our ruling today is not

intended to signal to prosecutors that they may abstain from

inquiring into findings of civil liability. We take this

13

opportunity to provide guidance, in conjunction with our

decision in Graham, on the scope of a prosecutor's duty of

inquiry. See Commonwealth v. Martin, 427 Mass. 816, 823-824

(1998) ("duty to inquire" about exculpatory information is

essential to performance of prosecutor's discovery obligations).

More specifically, we conclude that findings of civil liability,

unlike pending civil lawsuits, fall within the scope of the duty

of inquiry.

The duty of inquiry reinforces the duty of disclosure:

because the prosecution must disclose all evidence in the

possession, custody, or control of the prosecution team that

"tend[s] to" exculpate defendants, the prosecution also must

inquire about the existence of such evidence among members of

the prosecution team. Matter of a Grand Jury Investigation, 485

Mass. at 649. See Mass. R. Crim. P. 14 (a) (1) (A), as amended,

444 Mass. 1501 (2005). See also Commonwealth v. Ware, 471 Mass.

85, 95 (2015), quoting Commonwealth v. Beal, 429 Mass. 530, 532

(1999) ("It is well established that the Commonwealth has a duty

to learn of and disclose to a defendant any exculpatory evidence

that is 'held by agents of the prosecution team'"). Just as

"the ultimate admissibility of the information is not

determinative" of a prosecutor's disclosure obligations,

admissibility is likewise not determinative of a prosecutor's

14

obligation to inquire. Matter of a Grand Jury Investigation,

supra at 653.8 The two duties are inextricably connected.

"'Reasonableness' is the only limitation on the

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

434, 440-441 (2010). Reasonableness is an objective standard --

"a prosecutor's belief that no inquiry is necessary or required

in the circumstances of a particular case, based only on the

prosecutor's assumption that he [or she] already has all of the

items and information subject to discovery, does not comport"

with the duty of inquiry. Id. at 440. Rather, to satisfy the

duty of reasonable inquiry, prosecutors are duty-bound to ask

other members of the prosecution team whether "all discoverable

materials relating to a particular case have been given to the

Commonwealth" and, subsequently, the defendant. Id. at 441 (by

failing to do so, prosecutor "plainly knew" he did not make

reasonable inquiry). See Martin, 427 Mass. at 824 (duty of

reasonable inquiry "extend[s] to information in possession of a

person who has participated in the investigation or evaluation

8 We stated, in Matter of a Grand Jury Investigation, 485

Mass. at 653, that "[exculpatory] information should be

disclosed [even] to unrelated defendants so that the trial

judge may rule on its admissibility if the defendant were to

seek its admission." In other words, a trial judge cannot rule

on the admissibility of impeachment evidence if unaware of its

existence. See id. Prosecutors who engage in the analysis

suggested by Justice Lowy's concurrence when fulfilling their

duties of inquiry and disclosure proceed at their peril.

15

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

concerning the case"). See also Commonwealth v. Campbell, 378

Mass. 680, 702 (1979) ("prosecutor has no duty to investigate

every possible source of exculpatory information on behalf of

the defendants," only those in possession of prosecution team).

The burden of the duty of inquiry rests solely with the

prosecution.

In short, the scope of the duty of inquiry is driven by

what "tend[s] to exculpate" the defendant, Matter of a Grand

Jury Investigation, 485 Mass. at 649, and demands that

prosecutors ask all members of their prosecution team for "all

discoverable materials" related to the defendant's case, Frith,

458 Mass. at 441. Because the purpose of our discovery rules is

to promote judicial efficiency and prevent trial by ambush, "it

is appropriate to take a comprehensive view" of a prosecutor's

investigative obligations. Commonwealth v. Correia, 492 Mass.

220, 224 (2023).

A bright-line rule is necessary to guide disclosure and

inquiry requirements related to civil lawsuits. Therefore, we

conclude that findings of civil liability made against

prosecution team members in the performance of their official

duties are subject to automatic disclosure and fall within the

duty of inquiry. Matter of a Grand Jury Investigation, 485

Mass. at 649.

16

A finding of civil liability is different from a pending

civil lawsuit, which, as noted supra, has a lower threshold than

criminal prosecutions and can be brought by various private

parties with varying motives. In contrast, an adjudicated

finding of civil liability is the result of judicial process,

where evidence has been weighed, arguments heard, and a decision

rendered. See Graham, 493 Mass. at (prosecutor cannot,

"consistent with their obligation to disclose exculpatory

information," decide not to disclose judicial finding that

officer's statements were not credible). See also Justice

Manual, supra at tit. 9-5.100(5)(c)(iv) (including "prior

findings by a judge" within potential impeachment information).

Cf. id. at tit. 9-5.100(6) (excluding "unsubstantiated"

allegations of misconduct from potential impeachment

information). Therefore, findings of civil liability can have

exculpatory value, while pending civil lawsuits cannot.

That is not to say that any finding of civil liability may

be exculpatory simply because it was made against an individual

who also happens to be a member of the prosecution team;

instead, the finding of civil liability must be related to the

performance of that member's official duties. See Matter of a

Grand Jury Investigation, 485 Mass. at 652 (in deciding whether

to allow impeachment of police officer witness with prior

misconduct, judge may consider "whether the prior misconduct is

17

probative of how the officer conducts police investigations").

Given that civil lawsuits can be brought by various private

litigants for a wide range of reasons, this consideration will

assist in distinguishing civil suits related solely to a police

officer's personal life from those relevant to his or her police

work. See id., citing Lopes, 478 Mass. at 606.

Here, had the finding of civil liability been made before

or during the defendant's trial, it would have fallen within the

scope of the prosecutor's duty of disclosure and, therefore, his

or her duty of inquiry. See Mass. R. Crim. P. 14 (a) (4), as

appearing in 442 Mass. 1518 (2004); Frith, 458 Mass. at 436 n.4

(Commonwealth's duty of disclosure "continues throughout

trial"). The misconduct alleged in the lawsuit was related

directly to Moynahan's performance as a police officer. See

Matter of a Grand Jury Investigation, 485 Mass. at 653.

Moynahan was sued and found liable for false imprisonment and

false arrest, among other allegations, and the defendant

claimed, in defense, that the gun had been tampered with or, in

other words, that he was falsely arrested by Moynahan. See

Ellison, 376 Mass. at 20. With these conflicting narratives

regarding how the arrest transpired, the defendant's conviction

relied on Moynahan's testimony and, therefore, on Moynahan's

credibility. See Murray, 461 Mass. at 22. Because the finding

of civil liability could have been used to impeach Moynahan and

18

was known to a member of the prosecution team, it potentially

would have been discoverable under Matter of a Grand Jury

Investigation, supra at 649, and subject to the duty of inquiry

under Frith, supra at 441.

Nonetheless, as explained supra, because the civil lawsuit

was only pending at the time of trial, it did not mandate

disclosure. We recognize that, had the defendant's trial

occurred a short while later, or if the findings against

Moynahan had occurred a short while earlier, the prosecutor

would have been obligated to inquire into and disclose the

findings made against Moynahan. However, "[w]henever the law

draws a line there will be cases very near each other on

opposite sides." United States v. Wurzbach, 280 U.S. 396, 399

(1930).

3. Conclusion. As the civil lawsuit against Moynahan was

pending at the time of the defendant's trial, it constituted an

unsubstantiated allegation of misconduct that did not tend to

negate the defendant's guilt, and the prosecutor therefore had

no duty to inquire into or disclose the lawsuit as exculpatory

evidence. Accordingly, we affirm the motion judge's denial of

the defendant's motion for a new trial.

So ordered.

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

agree with the court that a prosecutor has no duty to inquire of

prosecution team members whether they are facing any pending

civil allegations. I write separately to address how the

ultimate admissibility of information, although certainly not

dispositive of a prosecutor's obligation to inquire about that

information, nonetheless helps inform the contours of a

prosecutor's duty of inquiry.

"[T]he ultimate admissibility of the information is not

determinative of the prosecutor's Brady obligation to disclose

it," and neither is the ultimate admissibility of the

information determinative of the prosecutor's Brady obligation

to inquire of it. Matter of a Grand Jury Investigation, 485

Mass. 641, 653 (2020) (Matter of Grand Jury). See Brady v.

Maryland, 373 U.S. 83, 87 (1963). Certainly, a much broader

array of evidence than just what is admissible is both

discoverable and within the scope of a prosecutor's duty of

inquiry. See Commonwealth v. Beal, 429 Mass. 530, 531 (1999).

The ultimate admissibility of the information, however, is

not wholly divorced from the prosecutor's Brady obligation to

inquire of it. Rather, the ultimate admissibility of the

information provides valuable insight into the reasonableness of

the prosecutor's duty of inquiry. Indeed, in Matter of Grand

Jury, 485 Mass. at 652, our analysis of what constituted

2

exculpatory evidence was inextricably intertwined with a

discussion of the law of evidence as it related to the

admissibility of certain impeachment evidence. The court here

also seems to recognize that admissibility informs, but is not

dispositive of, questions of what constitutes exculpatory

evidence and of the reach of the prosecutor's duty of inquiry.

See ante at (implicitly looking to relevance and

admissibility in holding that finding of civil liability against

police officer must be related to officer's performance of his

or her official duties, and not his or her personal life, to be

discoverable); id. at (concluding that "[b]ecause the

finding of civil liability could have been used to impeach

Moynahan . . . , it potentially would have been . . . subject to

the duty of inquiry").

I embrace the point we made in Matter of Grand Jury, 485

Mass. at 650, that a determination whether to disclose

exculpatory information, being forward-looking, is distinct from

a determination whether a failure to disclose exculpatory

information deprived a defendant of a fair trial, which is a

backward-looking analysis. That being said, courts look closely

to admissibility in determining whether a failure to disclose

exculpatory information deprived a defendant of a fair trial,

indicating that questions of admissibility of evidence help

inform questions of the scope of the duty of inquiry and the

3

duty of disclosure. Cf. Commonwealth v. Jones, 432 Mass. 623,

633 (2000) ("To justify granting a new trial, the motion judge

must find that there was a substantial risk that the jury would

have reached a different conclusion had the 'newly discovered'

evidence been admitted at trial" [citation omitted]);

Commonwealth v. Tucceri, 412 Mass. 401, 413 (1992).

Where the analytical gap between what information is sought

and what information might be admitted in evidence is so great,

the improbability of the former leading to the latter provides

some limitation on the scope of the duty of inquiry. Although

the duty of inquiry is significantly broader than simply whether

a particular type of evidence would be admissible at trial, and

although the admissibility of evidence is never determinative of

the duty of inquiry, the ultimate admissibility of evidence can

be a helpful tool when assessing the reasonableness of a

prosecutor's duty of inquiry into the existence of that kind of

evidence. The more unrelated to the investigation, arrest, and

prosecution of a defendant that an unproven contention of

misconduct against a police officer on the prosecution team is,

the greater the risk of obligating a prosecutor to search for

evidence unlikely to have any effect on the underlying case.

See Wood v. Bartholomew, 516 U.S. 1, 6 (1995) (per curiam)

(holding State's failure to disclose witness's failed polygraph

test did not violate Brady in light of fact that "polygraph

4

results were inadmissible under state law, even for impeachment

purposes," and it was "mere speculation" as to how disclosure

might have led to otherwise admissible evidence); Hoke v.

Netherland, 92 F.3d 1350, 1356 & n.3 (4th Cir.), cert. denied,

519 U.S. 1048 (1996), citing Wood, supra (holding no violation

of Brady where prosecution failed to disclose witness interviews

that would likely have been inadmissible at trial and were,

therefore, "as a matter of law, 'immaterial' for Brady

purposes").

The ultimate admissibility of evidence is neither the

touchstone nor even a requirement of what constitutes

exculpatory evidence. Nonetheless, determining what constitutes

exculpatory evidence must take place with at least some

recognition of the law of evidence to be applied at trial.

Otherwise, the principle of reasonableness as a limitation on

the duty of inquiry would prove elusive. The more difficult the

boundaries of the prosecutor's duty to inquire are to gauge, the

more all those touched by investigation and prosecution of crime

–- criminal defendants, victims, police witnesses, and

prosecutors –- will be adversely affected.

CYPHER, J. (concurring). I agree with the court that, in

the limited context of this case, the prosecutor had no duty to

inquire as to the unrelated, pending civil lawsuit because it

was not exculpatory evidence. I write separately, however, to

propose an end to the Bohannon rule, as outlined in Commonwealth

v. Bohannon, 376 Mass. 90 (1978) (Bohannon I), S.C., 385 Mass.

733 (1982) (Bohannon II) (collectively, Bohannon).1

Typically, "specific instances of misconduct showing the

witness to be untruthful are not admissible for the purpose of

attacking or supporting the witness's credibility." Mass. G.

Evid. § 608(b) (2023). Despite this bar, Massachusetts has

"chiseled a narrow exception" into the general rule, allowing

evidence of prior false rape allegations to impeach a witness's

credibility because, in special circumstances, "the interest of

justice forbids strict application of the [general] rule."

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

1 The Commonwealth raised Commonwealth v. Bohannon, 376

Mass. 90 (1978) (Bohannon I), S.C., 385 Mass. 733 (1982)

(Bohannon II) (collectively, Bohannon), both in its brief and

during oral argument.

2

Bohannon I, 376 Mass. at 94.2,3 Rooted in the misogynist belief

that women are prone to lying about sexual assault,

admissibility of evidence of prior false allegations pursuant to

Bohannon required a showing that "the witness was the victim in

the case on trial, her consent was the central issue, she was

the only Commonwealth witness on that issue, her testimony was

inconsistent and confused, and there was a basis in independent

third-party records for concluding that the prior accusations of

the same type of crime had been made and were false."

Commonwealth v. Sperrazza, 379 Mass. 166, 169 (1979), citing

2 The second exception to the general bar proscribing

admission of specific instances of misconduct is the allowance

of specific instances of a police officer's false statements in

prior, unrelated matters if the officer's credibility is a

critical issue at trial. See Matter of a Grand Jury

Investigation, 485 Mass. 641, 651-652 (2020).

3 Besides Massachusetts, only three other States have

provisions that specifically allow evidence of prior false

accusations to be admitted: New Jersey, Virginia, and Rhode

Island. Altantulkhuur, A Second Rape: Testing Victim

Credibility Through Prior False Accusations, U. Ill. L. Rev.

1091, 1144-1146 (2018). The remainder of the States generally

prohibit both inquiry into prior specific instances of

misconduct on cross-examination and extrinsic evidence, allow

inquiry on cross-examination but not extrinsic evidence, or

allow both inquiry on cross-examination and extrinsic evidence

to attack or support the victim's character for truthfulness.

Id. at 1116-1117. Unlike Massachusetts's § 608(b), Rule 608(b)

of the Federal Rules of Evidence permits a party on cross-

examination of a witness to inquire into specific instances of

prior conduct if probative of the witness's character for

truthfulness, although except for criminal convictions under

Fed. R. Evid. 609, extrinsic evidence is not admissible to prove

specific instances of misconduct. Compare Fed. R. Evid. 608

with Mass. G. Evid. § 608(b).

3

Bohannon I, supra at 95. See Althouse, The Lying Woman, the

Devious Prostitute, and Other Stories from the Evidence

Casebook, 88 Nw. U. L. Rev. 914, 965 (1994) (explaining that in

Bohannon, "[o]nce again, our attention is drawn to the

victimized man and the untrustworthy woman").

In Bohannon I, the victim, who had an intelligence quotient

of sixty-three, provided inconsistent testimony that the

defendant and codefendant may or may not have raped her on the

night in question. Bohannon I, 376 Mass. at 91. To impeach her

credibility, defense counsel sought to cross-examine the victim

about whether she made prior accusations that other men had

raped her, and, as an offer of proof, referenced hospital

records that suggested that the complainant had made "a number

of unsubstantiated, and apparently false, accusations of rape."

Id. at 92-93. Concluding that the proffered evidence, if

believed, would have had a significant impact on the sole issue

of consent, the court reversed the convictions to allow the

proposed questions to be asked at a new trial. Id. at 95. The

court further explicated that the decision did not implicate the

rape shield statute, G. L. c. 233, § 21B, because the proposed

questions dealt with prior allegations of rape and were "in no

way sought to elicit a response concerning the complainant's

prior sexual activity or reputation for chastity." Bohannon I,

supra. Notably, on appeal after remand, the court discerned no

4

abuse of discretion in the trial judge's exclusion of the

hospital records because, although Bohannon I allowed extrinsic

evidence to prove prior false allegations of rape, the hospital

records at issue were inadmissible unreliable hearsay given that

they were "extremely sketchy, vague, inaccurate as to where the

information came from, contained hearsay piled upon hearsay,"

and were not related to the victim's diagnosis or treatment.

Bohannon II, 385 Mass. at 750.

While the Bohannon rule has only appeared in a limited

number of published rape and sexual assault cases, see Bohannon

and Commonwealth v. Nichols, 37 Mass. App. Ct. 332 (1994), the

problematic origin of the rule requires that the court reexamine

whether to continue its use. Although the Bohannon court

indicated that the decision should not "be viewed as indicating

any adherence to that 'part of a legal tradition, established by

men, that the complaining woman in a rape case is fair game for

character assassination in open court,'" it is difficult to

distinguish the holding from the continuing belief that women

lie about rape and sexual assault so thus have a character for

untruthfulness. Bohannon I, 376 Mass. at 95, quoting

Commonwealth v. Manning, 367 Mass. 605, 613-614 (1975)

(Braucher, J., dissenting). The foundation of the rule was

premised on the belief that a rape allegation had been

5

concocted; however, in Bohannon, the alleged falsity of the

victim's prior allegation was never established.

According to the rule, there must be "a factual basis from

independent third party records for concluding that the prior

accusations of rape had, in fact, been made and were, in fact,

untrue," Bohannon I, 376 Mass. at 95; however, "falsity" is a

complicated aspect to prove. It is especially complicated when

the allegation alleged to be false is a past allegation. See

id. In order to demonstrate falsity, courts have relied on a

victim's recantation of the alleged accusation made against an

alleged perpetrator. See Commonwealth v. Martin, 467 Mass. 291,

310 & n.27 (2014); Nichols, 37 Mass. App. Ct. at 335. However,

a rape or sexual assault victim may recant for a myriad of

reasons other than untruthfulness, including "threats made by

the perpetrator, denial, shame, embarrassment, self-blame, not

wanting to relive the trauma, and avoiding a lengthy trial or

public exposure." Altantulkhuur, A Second Rape: Testing Victim

Credibility Through Prior False Accusations, U. Ill. L. Rev.

1091, 1094 (2018). That the rule allows a recantation to be

admitted in a subsequent trial to discredit and undermine the

victim's credibility risks further traumatizing the victim. Id.

Further, where a victim does not recant, falsity can likely

only be proved by delving into the victim's past sexual

encounters. Courts must reconcile a defendant's right to

6

confront his accuser and present a full defense with the

important principle that irrelevant or misleading evidence

should not be admitted. The rules of evidence should not be

used, in effect, as a second assault, subjecting the witness to

rehash sexual experiences on the witness stand. Exposure in

court of prior sexual experiences is protected by the rape

shield law. See G. L. c. 233, § 21B; Mass. G. Evid. § 412.

Given the wealth of knowledge we have about trauma responses and

the many reasons victims recant or may provide inconsistent

testimony, there is no reason that this should not also fall

within the rape shield law.4

4 It is often the case that rape and sexual assault victims

who have "credibility" issues have been victimized throughout

their lives, which makes them appear unstable or present

themselves in a manner contrary to what the jury may believe as

typical of an assault survivor. See Cole, She's Crazy (to Think

We'll Believe Her): Credibility Discounting of Women with

Mental Illness in the Era of #MeToo, 22 Geo. J. Gender & L. 173,

174-175 (2020); Lave, The Prosecutor's Duty to "Imperfect" Rape

Victims, 49 Tex. Tech L. Rev, 219, 230-231 (2016); Schafran,

Maiming the Soul: Judges, Sentencing and the Myth of the

Nonviolent Rapist, 20 Fordham Urb. L.J. 439, 448 (1993).

WENDLANDT, J. (concurring, with whom Kafker, J., joins). I

agree that a bright line rule is helpful to guide prosecutors as

to their duty to disclose civil lawsuits. I write separately

because I do not share the Commonwealth's view (which the court

apparently endorses) that civil lawsuits necessarily are

unsubstantiated until a finding of liability. When a civil

action is commenced, counsel must certify that the allegations

therein have a basis in fact after reasonable investigation.

See Mass. R. Civ. P. 11 (a), as amended, 456 Mass. 1401 (2010)

(attorney signature certifies "that to the best of the

attorney's knowledge, information, and belief there is good

ground to support [the pleading]"); Fed. R. Civ. P. 11(b)(3) (in

presented pleading, attorney certifies that "the factual

contentions have evidentiary support or, if specifically so

identified, will likely have evidentiary support after a

reasonable opportunity for further investigation"). The

allegations in the complaint must plausibly suggest a right to

relief, and in the case of a claim of fraud, the particularity

requirement must be met.1 See Ashcroft v. Iqbal, 556 U.S. 662,

1 To the extent the claim is frivolous, a cross claim for,

inter alia, abuse of process could be brought; such a cross

claim should survive a special motion to dismiss. See G. L.

c. 231, § 59H (motion to dismiss claim based on petitioning

activity should be denied where petitioning activity "was devoid

of any reasonable factual support or any arguable basis in law"

and "moving party's acts caused actual injury to the responding

party").

2

678 (2009) ("a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible

on its face" [quotation and citation omitted]); Mass. R. Civ. P.

9 (b), 365 Mass. 751 (1974) ("all averments of fraud . . . shall

be stated with particularity"); Fed. R. Civ. P. 9(b) ("In

alleging fraud or mistake, a party must state with particularity

the circumstances constituting fraud . . ."). See also DeWolfe

v. Hingham Centre, Ltd., 464 Mass. 795, 798 n.8 (2013) (fraud

claim not pleaded with sufficient particularity where no facts

alleged that defendant knew that representations were false).

Significantly, a claim against a police officer in the

scope of her official capacity often must overcome a motion,

usually filed early in the litigation, on the basis that the

officer's actions were protected by the doctrine of qualified

immunity. See Lynch v. Crawford, 483 Mass. 631, 635 (2019) ("we

have noted the importance of determining immunity issues early

if immunity is to serve one of its primary purposes: to protect

public officials from harassing litigation" [quotations and

citation omitted]). And where the claim nonetheless survives a

defense of qualified immunity, it often must overcome a motion

for summary judgment. Mass. R. Civ. P. 56, 365 Mass. 826

(1974). Fed. R. Civ. P. 56. At that stage of the civil

litigation, the plaintiffs cannot rest on mere allegations; they

must come forward with specific admissible evidence that, if

3

believed, would permit a verdict in their favor on the claim.

Mass. R. Civ. P. 56 (e) (in response to motion for summary

judgment, "an adverse party may not rest upon the mere

allegations or denials of his pleading, but his response, by

affidavits or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for

trial"). Fed. R. Civ. P. 56(c) (parties must "cit[e] to

particular parts of materials in the record" to show genuine

dispute of material fact).

Nonetheless, I join the court because a line is helpful and

because the defendant readily could access publicly available

information regarding a pending civil action against the

officers that are part of the prosecution team.