Supreme Judicial Court (May 10, 2006)

A judge has the authority to allow a defense investigator access to a crime scene in a private residence, on the basis of a showing that the information obtainable at the scene was relevant to the defense.

The defendant was charged with rape of a child with force and assault and battery. The rape was alleged to have occurred in the victim's home, on a couch in the family room. Several people were asleep in the small one-floor house, but none claimed to have been aware of the assault. The defendant's motion to permit his investigator to enter the home to inspect, measure, and photograph the rooms was allowed, and the Commonwealth sought relief pursuant to G.L. c. 211, §3.

The SJC concluded that current rule 14 (and rule 17) provided the judge with the authority to order access to a crime scene in a private residence, on the basis of a showing that the information obtainable at the scene was relevant to the defense, and provided that the owner of the residence was served with notice of the motion and had an opportunity to be heard.

Given the close proximity of the living area in the house, including the relative positions of the household members and the acoustics of the relevant rooms in which they slept, inspection of the crime scene was necessary to the defense. Because the homeowner was not given notice or an opportunity to be heard, the matter was returned to the Superior Court.