Supreme Judicial Court (August 11, 2010)

Where a witness with a disability requests an accommodation in order to testify, the Massachusetts Equal Rights Act requires that the court provide a "reasonable" accommodation. Where there is a dispute regarding such accommodation, the judge should conduct a pretrial hearing, and the witness should be provided with a reasonable accommodation, if available. Where a judge denies an accommodation requested, the party may seek interlocutory review from a full panel of the Appeals Court.

A District Court judge found that Ruby McDonough, the alleged victim in a criminal trial, was not competent to testify because of her impaired capacity to communicate due to a stroke. The Commonwealth did not seek appellate review of the judge's order. McDonough filed a petition, pursuant to G.L. c. 211, § 3, claiming that the failure to accommodate her disability and the ruling that she could not testify violated her rights under the Americans with Disabilities Act, the Massachusetts Equal Rights Act and the Massachusetts Constitution.

The SJC denied McDonough's petition because she did not have standing to seek appellate review. The Court found, however, that there is "considerable doubt" regarding the appropriate appellate procedure. Therefore, the Court established that, where a judge denies an accommodation requested by a witness, thereby precluding the witness from testifying, the party seeking to introduce the testimony has the right to an interlocutory review of the order. Noting that substantial rights of the witness are involved, the Court stated that the party may appeal such an order to a full panel of the Appeals Court. The appeal shall be taken "as soon as practicable but in any event within thirty days of the date of the interlocutory order, and in accordance with the Massachusetts rules of appellate procedure."

The Court also set forth guidelines for future cases where there is a dispute as to the proper resolution for a request for an accommodation:

(1) Where a witness with a disability requests an accommodation in order to testify, the Massachusetts Equal Rights Act requires that the court provide a "reasonable" accommodation. A witness with a disability should provide pretrial notice of the need for an accommodation, and identify the reasonable accommodation that he seeks.

(2) Where the witness's request for accommodation is disputed, a judge should conduct a pretrial hearing, and the witness should be provided with a reasonable accommodation, if available, at the pretrial hearing. Where appropriate, the judge may appoint an independent expert to assess the disability and accommodation. The judge should focus on the accommodation requested and consider the defendant's right to cross-examination. The judge's written findings should be sufficient to allow review.

(3) Where a judge precludes a witness with a disability from testifying, the party proffering the witness (but not the witness), may appeal the judge's interlocutory ruling as a matter of right to a full panel of the Appeals Court.