Supreme Judicial Court (October 15, 2009)

The Commonwealth must obtain judicial approval pursuant to Mass. R. Crim. P. 17(a) (2) prior to issuing a subpoena duces tecum for the production of records from a third party in advance of trial or an evidentiary hearing.

The defendant was charged with murder in the first degree. He was ordered held without bail in a secure unit at a Department of Youth Services correctional facility. As the defendant's case progressed the prosecutor issued a series of subpoena duces tecums to the correctional facility's keeper of records, seeking "any books, papers, visitor log, taped phone calls, and pin list" for specific periods of time. The subpoenas directed the keeper of records to produce the materials in person at a scheduled court date or in lieu of a court appearance, to provide the records prior to that date. The records were mailed directly to the District Attorney's Office and the prosecutor turned over copies to the defendant.

The defendant notified the Commonwealth of his intent to rely on a defense of lack of criminal responsibility because of mental disease or defect. In response, the Commonwealth informed the defendant of its intent to search the subpoenaed telephone recordings for evidence of criminal responsibility. The defendant moved to suppress the recordings claiming that the Commonwealth lacked authority to issue the subpoenas without first obtaining judicial approval pursuant to Mass. R. Crim. P. 17(a)(2), as construed by Lampron, 441 Mass. 265 (2004). The Commonwealth argued that G.L. c. 277, § 68 allowed it to issue the subpoena on its own and that even were judicial approval required, they would be entitled to such approval.

Chapter 277: Section 68. Issuance of subpoenas by attorney general and district attorneys

The attorney general and district attorneys may issue subpoenas under their hands for witnesses to appear and testify on behalf of the commonwealth, and such subpoenas shall have the same force, and be obeyed in the same manner, and under the same penalties, in case of default, as if issued by the clerk of the court.

The judge allowed the defendant's motion to suppress concluding that the Commonwealth had erred in failing to seek prior judicial approval before issuing the subpoenas.

Subsequently, the Commonwealth moved under rule 17 and Lampron for judicial approval to subpoena a portion of the recordings it had originally sought, namely, recordings of the defendant's telephone calls. The judge found the Commonwealth had failed to satisfy the requirements of Lampron and denied the motion.

The Commonwealth then filed a petition under G.L. c. 211, § 3, seeking review by a single justice of the denial of its Lampron motion. Alternatively, it requested leave to pursue an interlocutory appeal from the allowance of the defendant's motion to suppress. The single justice denied the Commonwealth's petition but granted it leave to pursue an interlocutory appeal from the suppression ruling.

The Supreme Judicial Court agreed with the Superior Court judge that the Commonwealth was required to comply with rule 17 and to obtain prior judicial approval in seeking the defendant's telephone records from the jail; however, the Commonwealth's failure to comply did not itself warrant suppression of the defendant's recorded telephone conversations. The defendant's motion to suppress raised a claim that suppression of this evidence was required because turning the records over to the prosecution without any showing of probable cause violated his constitutional rights. The judge did not reach these claims, but the defendant is now entitled to have them considered.