Whether a District Court judge properly issued a $5,000 sanction against the Commonwealth for failure to discover a police report in a cross-claim filed by the defendant.

In an assault and battery case where both parties claimed the other was the agressor, the Commonwealth provided automatic discovery materials to the defendant, including a police report and several statements. The Commonwealth then filed a Certificate of Discovery Compliance, averring that it made a “reasonable inquiry” for discoverable documents.

The Commonwealth’s discovery failed to include two police reports arising from the defendant’s cross-complaint against the alleged victim, which appeared under a separate incident number in police files (but were apparently referenced in the disclosed materials). The Commonwealth’s ordinary practice is to rely on materials provided by a police prosecutor — a process that will not uncover materials in complaints where the defendant was an alleged victim instead of perpetrator.

The defendant personally obtained a copy of the missing police report, and then moved for sanctions. A judge of the District Court imposed a fine of $5,000, finding that the Commonwealth’s claim that it made a “reasonable inquiry” was knowingly false and made in bad faith.

1. Availability of fine as a sanction. The judge was not entirely clear as to whether the fine was imposed pursuant to Mass. R. Crim. P. 14(c), which permits such orders as the judge “deems just” for violation of discovery orders, or Mass. R. Crim. P. 48, which permits the imposition of a fine for violation of any rule. The Commonwealth argues that the fine was improper, in that it was not of the kind contemplated by Rule 14, was not tailored to the actual harm caused (apparently none), and was not issued according to the process for a finding of contempt.
2. Findings of fact. The Commonwealth argues that the record does not support a finding of knowing falsehood or bad faith, because (1) it is not practicable to search for potential cross-complaints on a routine basis, and (2) even if the procedure should be changed to discover cross-complaints, the prosecutor did not know that current practice fell below “reasonable inquiry” when making the representation.

The Commonwealth’s argument as to the judge’s authority is unpersuasive. It seems reasonable to infer from the judge’s ruling that the fine was imposed pursuant to Rule 48, which permits fines to coerce compliance. The Commonwealth does not effectively argue that the fine was imposed on another basis, or that the coercive basis would be insufficient.

The Commonwealth’s argument as to knowing falsehood is much more compelling. There seems to be no basis on the record to conclude that the prosecutor should have known that it would be unreasonable to rely on the materials provided by the police prosecutor. Although the SJC is ordinarily unwilling to overturn findings of fact, this may be the rare case in which such a ruling is appropriate.

This case raises the further question of how a District Court judge should respond when he or she believes that the Commonwealth’s usual procedure is unreasonable. Please contact me if you would like to provide insight on this issue.