The Difference Between Them is Critical to Your Defense
|If the assistant DA
not produce something for
you made a
specific request, the case against you can be dismissed.
If the assistant DA does not produce something for which you made no request or only a general request, this court will order a new trial or reduction of the verdict whenever the court concludes that there has been a substantial likelihood of a miscarriage of justice. The test is whether the undisclosed evidence would have been a real factor in the jury's deliberations.
One case and excerpts from two others are
Check out your
own state opinions to see if these standards apply..
Defendant, who had been convicted of two counts of forcible rape, kidnapping, unarmed robbery, mayhem, and assault and battery, moved for new trial on ground that prosecution had failed to disclose exculpatory evidence. The Superior Court, Middlesex County, Hiller B. Zobel, J., [the Au Pair judge] allowed motion, and Commonwealth appealed. The Appeals Court affirmed, and further appellate review was granted. The Supreme Judicial Court, Wilkins, J., held that: (1) defendant is entitled to new trial for nondisclosure of material evidence if absent evidence would have played important role in jury's deliberations and conclusions, where defendant did not make specific request, and (2) trial court's nondisclosure of photographs taken of defendant after arrest, indicating that he did have moustache at such time, entitled defendant to new trial.
[412 Mass. 402] Patricia M. Darrigo, Asst. Dist. Atty. (Rosemary D. Mellor, Asst. Dist. Atty., with her), for Com.
Greta A. Janusz, New Bedford, for defendant.
Before [412 Mass. 401] LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and GREANEY, JJ.
[412 Mass. 402] WILKINS, Justice.
We granted further appellate review in this case to consider the standard to be applied in ruling on a defendant's motion for a new trial based on the failure of the prosecution to disclose exculpatory evidence in its possession.
At the defendant's
1978 trial on
charges of rape, kidnapping,
mayhem, and assault and
of the assailant was the
only contested issue. The
defendant near the crime scene
in Cambridge within
had left the victim. The Cambridge
photographs of the
shortly after his arrest. The
victim testified repeatedly
was clean-shaven. Another witness
who identified the
he had seen near the crime
[412 Mass. 403] The defendant moved generally for the disclosure of exculpatory evidence. Although he and his counsel knew that photographs had been taken shortly after his arrest, the defendant never specifically requested their production. Certainly, the defense was not hindered by an inability to be specific in any request it might make for the photographs. In October, 1988, pproximately ten years after his trial, the defendant wrote the record department of the Cambridge police department for a copy of the photographs taken of him on the night of his arrest. In circumstances not disclosed on the record, the defendant obtained them. The frontal photograph of the defendant's face shows the defendant with a moustache. The photograph would have aided the defendant in the impeachment of the principal witnesses against him. The Commonwealth grants that the photographs were exculpatory (Commonwealth v. Ellison, 376 Mass. 1, 21-22, 379 N.E.2d 560  ), but argues, that, in light of the evidence tending to show that the defendant was guilty, a new trial is not required. (FN1)
Citing the rule
stated in Commonwealth
399 Mass. 17, 21, 502 N.E.2d
516 (1987), and cases
judge (who was not the trial judge)
and the Appeals Court
30 Mass.App.Ct. 954, 955,
956, 571 N.E.2d 48  )
that the prosecution's
failure to disclose
a new trial,
even though the defendant
did not specifically
We agree and conclude that
it is time for this court
on the appropriate
 We shall discuss (1) the reasons why the prosecution must depart from a totally adversary role in cases of this sort, (2) the interrelationship of common law and constitutional principles in the decision of such cases, (3) the role of defense counsel and the relationship of any omissions of defense counsel to the prosecution's nondisclosures, (4) the significance, in deciding whether any error was reversible error, of the fact that the case was tried to a jury, and (5) the standard to be applied in deciding whether, in particular circumstances, a new trial may or should be ordered because admittedly exculpatory evidence was not provided to the defendant (and thus was not disclosed to the jury). Of all these concerns, the last is the most problematic because, on such a fact-based issue, a universal guide as to when prosecutorial error requires a new trial cannot be fashioned except in general terms and because the outcome of a nondisclosure case may depend on seemingly minor word differences in expressing the standard for measuring prejudice to a defendant's case. (FN2)
  1. The governing principles. Due process of law requires that the government disclose to a criminal defendant [412 Mass. 405] favorable evidence in its possession that could materially aid the defense against the pending charges. The Supreme Court of the United States announced the prosecution's constitutional obligation to disclose material, exculpatory evidence in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), where the defendant had requested specific evidence. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Court provided protections for defendants who only generally requested exculpatory evidence or made no request at all. The Agurs opinion distinguished between a specific request and a general request for exculpatory evidence in determining whether the prosecution's omission warranted a new trial. When the unsatisfied request was specific, a new trial would be required if the undisclosed evidence "might have affected the outcome of the trial." Id. at 104, 96 S.Ct. at 2398. If there was no request or if, as here, only a general request was made, a new trial would be required only if the undisclosed evidence "create[d] a reasonable doubt which did not otherwise exist." Id. at 112, 96 S.Ct. at 2402. In Commonwealth v. Ellison, 376 Mass. 1, 23-24, 379 N.E.2d 560 (1978), Justice Kaplan discussed some of the uncertainties the Agurs opinion created. (FN3)
In United States v.
Bagley, 473 U.S.
667, 105 S.Ct.
3375, 87 L.Ed.2d 481 (1985),
the Supreme Court
adopted a single
of prejudice (what it calls materiality)
See id. at 682, 105 S.Ct.
at 3383; id. at 685, 105
J., concurring in part in the
judgment). That unitary
taken from Strickland
v. Washington, 466 U.S.
668, 694, 104 S.Ct. 2052,
(1984), which in turn relied on
request test of the Agurs case, states that "[t]he evidence is material
a new trial]
only if there is a reasonable
probability that, had
disclosed to the defense, the
  There are several forces at work in prosecutorial nondisclosure cases. First, when the question arises posttrial, there is a public interest in the finality of judgments. New trials should not be granted except for substantial reasons. Second, prosecutors, who are agents of the State and often have access to information that defendants may not have, should be encouraged to disclose exculpatory evidence that in fairness defendants should have for their defense. Of course, a prosecutor cannot always know that a particular piece of evidence is or might be exculpatory. (FN5) A rule that encourages prosecutors [412 Mass. 407] to make pretrial disclosures of obviously or even arguably exculpatory material would not only promote fair trials (FN6) but would also help to avoid the difficulties of post-trial judicial review. Judges, therefore, should be sensitive to the allowance of motions for the disclosure of specific information claimed to be exculpatory. A prosecutor's duty, however, extends only to exculpatory evidence in the prosecutor's possession or in the possession of the police who participated in the investigation and presentation of the case. See Commonwealth v. Daye, 411 Mass. 719, 734, 587 N.E.2d 194 (1992). Third, when the omission of the prosecution is knowing and intentional or follows a specific request, a standard of prejudice more favorable to the defendant is justified in order to motivate prosecutors to be alert to defendants' rights to disclosure.
It is this reason
that underlies this
of the Bagley rule and our
adoption of the specific
request standard of the Agurs opinion as State law. See Commonwealth v.
supra, 399 Mass.
at 21 n. 5, 502 N.E.2d 516.
In such cases, we overlay a
upon common law and due process
fairness standards that
in proving prejudice. (FN7) We
[412 Mass. 408] acknowledge
2. Common law and constitutional principles. In deciding whether a defendant is entitled to a new trial because the prosecution failed to turn over exculpatory evidence, State judges are not limited to constitutionally based principles. The opinions of the Supreme Court of the United States that we have cited previously in this opinion are concerned with defendants' Federal constitutional rights. Our opinions in this area have generally applied the Federal constitutional standards without stating explicitly whether the same standards apply under the State Constitution. Cf. Commonwealth v. Daye, 411 Mass. 719, 725, 729, 587 N.E.2d 194 (1992) (State due process rights considered). In Commonwealth v Gallarelli, supra, 399 Mass. at 21 n. 5, 502 N.E.2d 516, however, as we have said, we declined to follow the Supreme Court's position in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). We elected instead, without stating whether our rule had a common law or State constitutional basis, to continue with the principles of our decisions that had applied the rule of the Brady and Agurs cases. Gallarelli, supra. See Commonwealth v. Ellison, 376 Mass. 1, 21, 379 N.E.2d 560 (1978).
 There is no
reason why the
could not be advanced by a
motion for a new trial to
of Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979), apply. Often such
will simply present a new trial claim based on newly discovered
See Commonwealth v. Grace, 397
Mass. 303, 305, 491 N.E.2d
who seeks new trial on grounds
of newly discovered
must show that evidence was newly discovered and that "it casts real
on the justice of the conviction").
(FN8) Even if
not "newly" discovered, the
failure of a prosecutor to
evidence in his possession could
be a proper basis for a
on other common law grounds.
Such a motion could also be based
extended similar deference to the views of a judge who, as was the case here, acted on a new trial motion but was not the trial judge. We have, however, deferred to such a motion judge's conclusions on testimony presented in association with a new trial motion. See Commonwealth v. Grace, supra. If the new trial claim is constitutionally based, this court will exercise its own judgment on the ultimate factual as well as legal conclusions.
In this case, we are in as good a position as the motion judge to assess the trial record. Id. The defendant argues only a violation of constitutional rights and does not assert any State common law right. We shall return to the question of common law relief in this case when we discuss the standard for measuring prejudicial error because we should not feel bound by a party's election to assert only constitutional rights and thereby decline to raise plausible nonconstitutional grounds for relief. <>[412 Mass. 410]
 3. The role of defense counsel. In many instances of prosecutorial nondisclosure of exculpatory evidence, defense counsel may have
failed in his obligation to provide adequate representation. As a general rule, the omissions of defense counsel (a) do not relieve the prosecution of its obligation to disclose exculpatory evidence and (b) may provide the defendant with an independent claim of an unconstitutional denial of the effective assistance of counsel.
In this case, the
represented by new counsel,
argued below and argues
to us that his trial
to move specifically for the production of the
photographs and that
requires that he have a new
trial. It is true that, for
the defendant moved only generally for the production of exculpatory
and not specifically for the production of the photographs. The motion
judge did not order a new trial, however, on the ground of ineffective
assistance of counsel. He had no need to, and did not, make findings or
rulings concerning either the quality of defense counsel's performance
or the possible impact on the verdict of any failure of defense counsel
to meet the constitutionally minimum level of competence. Defense
did argue to the jury that the prosecution's failure to produce the
warranted an inference that they show that the defendant did have a
on the night of the crimes. That argument pales, however, in its likely
impact on a jury when compared with the frontal photograph's
and hence irrefutable
the same subject. We shall not, and need not, pursue the ineffective
of counsel argument to its conclusion. Perhaps an adequate explanation
why counsel did not move specifically
production of the photographs lies outside the record. (FN9)
[412 Mass. 411]
The Supreme Court
of the United States,
on the other
hand, seemingly assigns to
the judge the task of
of the prosecutor's omission. See United States v. Agurs, 427 U.S. 97,
112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976). It is, of course, true
that in deciding whether a defendant's due process right to a fair
may have been violated, a court is deciding a question of
law, which is clearly a judicial function. Moreover, the Federal
approach is arguably easier to apply. Judges can be more confident in
the effect that the omitted evidence would have had on them than in
its effect on the collective or individual judgments of twelve lay
On the other hand, the Federal approach seems to treat the involvement
of a jury in the trial as irrelevant. We believe that the jury's role
be an acknowledged part of any assessment of a defendant's claim of
caused by the prosecution's omission.
[412 Mass. 412]
 Our concern is with the standard to be applied when the defendant has made no request or, as here, has made only a general request for exculpatory evidence. The Supreme Court opinions refer to the "materiality" of the exculpatory evidence. In this opinion we have generally avoided using the word "material" to describe the importance of evidence to the new trial claim. If the evidence is exculpatory, it is also material in the general evidentiary sense that it is material (and relevant) to an issue in the case. In its opinions in the Agurs and Bagley cases, the Supreme Court has not used the word "material" in its ordinary, evidentiary sense. To that Court, evidence is material in the sense that its absence mattered or might have mattered in the trial of the case. We prefer to refer in standard common law terms to the degree of prejudicial effect, rather than materiality, of the improper nondisclosure of exculpatory evidence.
Our common law
standard for the
granting of a new trial
and our standard for measuring
the consequences of
of defense counsel provide the appropriate guide [412 Mass. 413] for
whether the nondisclosure of evidence requires the allowance of a new
motion. See Commonwealth v. Daye, 411 Mass. 719, 734, 587
The application of the common law standard that we have adopted requires a careful review of the trial court proceedings to determine whether there is a substantial chance that the jury might not have reached verdicts of guilty if the undisclosed evidence had been introduced in evidence. (FN11) In terms of the case before us, the issue is whether the defendant was denied a substantial factual basis for contending to the jury that the victim misidentified him.
We find this
standard to be clearer and
the Agurs general
 If the undisclosed evidence is cumulative, if it lacks credibility, or if, in an over-all assessment, it does not carry a measure of strength in support of the defendant, the failure to disclose that evidence does not warrant the granting of a new trial. If, however, the undisclosed evidence is more credible than any other evidence on the same factual issue and bears directly on a crucial issue before the jury, such as the credibility of an important prosecution witness, that evidence would have been a real factor in the jury's deliberations, and its presence before the jury might have accomplished something material for the defense.
 6. Conclusion. From what we have said, it follows that the nondisclosure of the photographs requires the ordering of a new trial. The frontal photograph of the defendant's face was authentic and incontestably showed that the defendant had a moustache. The photograph was made by the Cambridge police and, because of its unquestionable weight and reliability, was not "merely cumulative" of the testimony of the defendant's wife that he had a moustache on the day of the crimes. Although the fact that the defendant had a moustache does not disprove his commission of the crimes, it casts doubt on the identification of the defendant as the attacker because it demonstrates that the victim and other witnesses were undeniably wrong in one aspect of their sworn identification testimony. Consequently the photograph showing the defendant with a moustache would have been a real factor in the jury's [412 Mass. 415] deliberations, and its introduction in evidence might have accomplished something material for the defense.
Order allowing motion for new trial affirmed.
fit the victim's description of her attacker, particularly as to the clothes
that her attacker
was wearing. The heel
from a boot of the
found near the
crime scene. Shortly after
the incident, a man
fitting the defendant's
description, and identified
by one witness as the
defendant, was seen
running toward a van owned
by the defendant.
Although the motion judge correctly described the moustache as "trimmed, full, [and] plainly obvious," it was not prominent.
FN2. For example, the rule previously stated to be applied to the facts of this kind of case is whether the undisclosed evidence creates a reasonable doubt that did not otherwise exist. Commonwealth v. Gallarelli, 399 Mass. 17, 21, 502 N.E.2d 516 (1987), quoting United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). The motion judge expressed the guiding rule as whether the undisclosed evidence could create a reasonable doubt that would not otherwise exist. A standard that the Appeals Court stated at one point in its opinion was whether it could say that, if the exculpatory evidence had been introduced, "it would not have created a reasonable doubt as to the guilt of the defendant." Commonwealth v. Tucceri, 30 Mass.App.Ct. 954, 955, 571 N.E.2d 48 (1991) (emphasis supplied). The Appeals Court formulation may suggest that the Commonwealth has the burden of showing that the defendant was not prejudiced by the nondisclosure. It is, however, the defendant who has the burden of showing prejudice warranting or requiring a new trial order. See Commonwealth v. Monteiro, 396 Mass. 123, 130, 484 N.E.2d 999 (1985); Commonwealth v. Wilson, 381 Mass. 90, 110, 407 N.E.2d 1229 (1980).
FN3. A third aspect involves situations in which the prosecution knew or should have known that perjurious testimony was offered and did not disclose that fact. There, a new trial is required "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, supra, 427 U.S. at 103, 96 S.Ct. at 2397.
Davis v. Alaska,
415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974), the Supreme Court
was unnecessary when the
scope of cross-examination
restricted. In United States
v. Bagley, 473 U.S. 667,
3375, 3380-81, 87 L.Ed.2d 481
(1985) the plurality opinion
Davis v. Alaska, a right to confrontation of witnesses case, from the
process basis of United States v. Bagley. The argument before us is not
based on a denial of the defendant's constitutional right of
If no prejudice need be shown to obtain a new trial because of a direct
restriction on the scope of cross-examination, should it be required
a substantial restriction on the depth and quality of cross-examination
that results indirectly from prosecutorial nondisclosure of exculpatory
FN6. The prosecution's nondisclosure of the photographs obviously made it easier for the Commonwealth to meet its burden of proof.
FN7. The rule that the Supreme Court stated in the Bagley case on its face makes the prosecution's state of mind irrelevant in deciding whether due process of law requires a new trial for any defendant from whom the prosecution improperly has withheld exculpatory evidence. This change is interesting in light of that Court's conclusion three years later in Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 337-38, 102 L.Ed.2d 281 (1988), that only on a showing of police bad faith can there be a denial of due process of law in the failure of the prosecution to preserve potentially exculpatory evidence. This court has declined to follow the Youngblood rule and has not required proof of bad faith in addition to prejudice to the defendant, caused by the prosecution's loss or destruction of evidence, as a necessary factor in deciding that a new trial is required in such circumstances. Commonwealth v. Phoenix, 409 Mass. 408, 412 & n. 1, 567 N.E.2d 193 (1991). In Commonwealth v. Henderson, 411 Mass. 309, 310-311, 582 N.E.2d 496 (1991), where there was no police bad faith, we nevertheless upheld the pretrial dismissal of charges on State due process of law grounds where the police had lost a written record of the victim's description of the person who had robbed her in 1987 and where there were special circumstances involved in the victim's identification of the defendant more than two years later.FN8. To be sure, in the case now before us, a claim that at the time of trial the defense did not know of the photographs (and hence now could pass the test of newness) seems impossible to sustain (and has not been made). See Commonwealth v. Grace, 397 Mass. 303, 306, 491 N.E.2d 246 (1986) (to be "newly" discovered, evidence must have been unknown to defendant and his counsel and not reasonably discoverable).
FN9. If counsel's performance did fall measurably below accepted standards, the detrimental effect of that omission would be more easily established in this case than in the usual case of a claimed ineffectiveness of counsel. In this case, the harm caused by any negligence of defense counsel would be measured by the difference between the standard of review that would have been applied to the withheld evidence, if defense counsel had made a specific request, and the standard that is applied when defense counsel made no specific request. That standard in Massachusetts is more favorable to a defendant when defense counsel has made a specific rather than a general request for exculpatory evidence that the prosecution failed to disclose.
FN10. If we were dealing with a claim of ineffective assistance of counsel based on the failure of defense counsel to present certain evidence to the jury, our approach also would be to consider the impact of that omission on the jury.
FN11. We see no need to express this standard in State constitutional terms. Because it is more favorable to defendants than the Federal Constitutional standard, the common law standard will be the controlling one. Cf. Commonwealth v. Charles, 397 Mass. 1, 14-15, 489 N.E.2d 679 (1986).
Com. v. Simmons, 417 Mass. 60, 627 N.E.2d 917 (1994)
  The "degree of prejudice or possible prejudice that warrants or requires the granting of a new trial because the prosecution improperly failed to deliver exculpatory evidence to the defense" depends on whether "the prosecution has denied the defendant specifically requested exculpatory evidence." Commonwealth v. Tucceri, 412 Mass. 401, 412, 589 N.E.2d 1216 (1992). If the prosecution has denied the defendant specifically requested exculpatory evidence, "a defendant need only demonstrate that a substantial basis exists for claiming prejudice from the nondisclosure." Id. In Tucceri, we also discussed the standard to be applied "when the defendant has made no request or ... has made only a general request for exculpatory evidence." Id. at 412-415, 589 N.E.2d 1216. However, the defendant in Tucceri was not charged as here with murder in the first degree, and therefore our decision was not controlled, as it is here, by G.L. c. 278, sec. 33E. Where the prosecution denies the defendant exculpatory evidence but the defendant has not requested it or has made only a general request, this court will order a new trial or reduction of the verdict whenever the court concludes that there has been a substantial likelihood of a miscarriage of justice. G.L. c. 278, sec. 33E. Commonwealth v. Wright, supra, 411 Mass. at 681, 584 N.E.2d 621.
FN11. Whether a defendant has made a request for exculpatory evidence is of importance in considering the question of materiality of undisclosed evidence.
If a specific request is made, a new trial is required if the undisclosed evidence might have affected the outcome of the trial. Common- wealth v. Tucceri, supra at 405, 589 N.E.2d 1216.
If no request or only a general request has been made, the test is whether the undisclosed evidence would have been a real factor in the jury's deliberations. Id. at 412-413, 589 N.E.2d 1216.
Here, the evidence was destroyed before the defendant knew of its existence, and, therefore, there was no specific request. Assuming, without deciding, that the proper standard to be employed is the one used where there has been no request, we conclude that the destroyed evidence would have been a real factor in the jury's deliberations.