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Massachusetts High Court Affirms Trial Court Order Requiring Commonwealth to Disclose Witness’ History of Cooperation in Other Cases – Commonwealth v. Forlizzi

In the civil court system, a case begins with the plaintiff filing a lawsuit against the defendant(s), setting forth the various claims under which the plaintiff seeks relief. As the case progresses, each side is afforded an opportunity to discover information about the strengths and weaknesses of the other’s case and, if desired, take depositions of the parties and the witnesses. It is usually a fairly straightforward process designed to encourage settlement whenever possible, although issues do occasionally arise.

In criminal court, however, the process of discovering the case of one’s opponent is considerably more difficult. To begin with, the Fifth Amendment protects the defendant from self-incrimination, so the Commonwealth’s discovery of the defendant’s case is very limited. Generally speaking, the defendant’s ability to discover the evidence, eyewitness statements, and other aspects of the Commonwealth’s case is much greater, but there can still be limitations.

The Facts of the Case

In the case of Commonwealth v. Forlizzi, the defendant in a criminal proceeding sought disclosure as to whether a witness who was expected to testify against him at trial had previously served as a confidential informant or cooperating witness. The Commonwealth opposed the defendant’s request, but the superior court entered an order requiring the Commonwealth to disclose the information sought by the defendant concerning the witness.

In so holding, the superior court found that prior cooperation by the witness could be relevant to the defendant’s case inasmuch as it had the potential to demonstrate that the witness was biased or hoped to receive some reward or benefit from his or her testimony. Since the disclosure of information concerning the witness’ prior cooperation, if he or she had in fact cooperated with the Commonwealth in other cases, was necessary and material to the defense of the case, the defendant was entitled to such information.

Proceedings on Review by the Massachusetts Supreme Judicial Court 

The Commonwealth appealed the trial judge’s ruling to the state’s highest court. The matter was initially heard by a single justice, who held that the Commonwealth was not entitled to relief from the lower court’s ruling because it had not shown that the lower court had abused its discretion in the order requiring the disclosure of the witness’ history of cooperation.

In further proceedings by the full court, the court affirmed the rulings of the single justice and the judge of the superior court. The court first noted that it rarely allowed the Commonwealth to appeal interlocutory matters, since review of such in criminal cases was appropriate only in exceptional circumstances and when there were substantial claims of irremediable error. The court then stated that, although issues involving the disclosure of confidential informants did sometimes warrant the court’s interlocutory review, this case did not demand the court’s exercise of such powers. Although the Commonwealth argued that the disclosure of the witness’ prior history of cooperation could potentially discourage future witnesses from cooperating, the court found that this was not sufficient to show the “exceptional circumstances” required for its review.

To Get Help with a Criminal Case

If you have been charged with a crime and need to speak to an experienced Cape Cod criminal defense attorney, the Law Offices of John C. Manoog, III, can help. Call us at 888-262-6664 to schedule an appointment to discuss your case. We have offices in Plymouth and Hyannis, from which we serve clients throughout Massachusetts.

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