Supreme Judicial Court (March 14, 2006)

Upon motion, a judge may order a defendant to provide the Commonwealth with written statements of witnesses whom the Commonwealth intends to call at trial and which are in the possession, custody or control of the defendant or his attorney.

Prior to the defendant's trial for first-degree murder, the judge ordered the defense, as reciprocal discovery under Rule 14(a), to provide the Commonwealth with written statements of witnesses whom the Commonwealth intended to call at trial which were in the possession, custody or control of the defendant or his attorney. The order was not limited to statements the defendant could use for impeachment.

On interlocutory review, the SJC (4-3) rejected the defendant's claims that the order exceeded the scope of the rule. The court noted that nothing in the rule limits the word "persons" to include only witnesses whom the disclosing party intends to call at trial during the presentation of its case-in-chief. Such a limitation would be contrary to the fact that "persons," characterized here as prospective witnesses, belong neither to the Commonwealth nor to the defense. To hold otherwise, the court remarked, would be to endorse trial by ambush.

The court also held that the order did not violate the work product provision contained in rule 14(a)(5), and it declined to extend the work product doctrine to encompass a situation, almost impossible to identify, where a witness statement "seem[s]" to reveal the mental processes of the defense "by virtue of the areas covered." Nor did it matter to the court that the federal rules, or rules of other states, do not mirror our rules which favor liberal discovery, or that the order will require the defendant to make strategic choices about which evidence to present at trial. Finally, the SJC rejected the idea that surprise was a necessary component of a defendant's 6th Amendment rights to confront his accusers and to effective assistance of counsel, or that the order "compelled" him to say anything in violation of the 5th Amendment.