## Facts

- Patrick John Durham was indicted for first-degree murder for the 1981 stabbing death of a fourteen-year-old girl; he was not charged until 2000 after DNA evidence linked him to the crime.
- During pretrial proceedings, Durham sought expanded discovery from the Commonwealth, including the names of prospective trial witnesses and inspection of documentary and physical evidence the Commonwealth intended to offer at trial.
- The Superior Court allowed Durham’s request, conditioned on reciprocal disclosure limited to each side’s case-in-chief.
- The Commonwealth then sought an order requiring Durham to disclose written or recorded statements of witnesses the Commonwealth intended to call at trial, when those statements were in the possession, custody, or control of Durham or defense counsel.
- A Superior Court judge, acting under Massachusetts Rule of Criminal Procedure 14(a), ordered Durham to produce such witness statements within seven days after receiving the Commonwealth’s civilian witness list.
- Durham challenged the order as exceeding Rule 14 and violating constitutional protections, including due process, the privilege against self-incrimination, and the right to effective assistance of counsel.
- While the appeal was pending, Durham pleaded guilty to manslaughter and was sentenced; the Supreme Judicial Court nonetheless decided the appeal because the issue was fully briefed and important to recurring pretrial practice.

## Issues

1. Whether Mass. R. Crim. P. 14(a) authorizes a trial court to order reciprocal disclosure by a defendant of written or recorded statements of Commonwealth trial witnesses in the defense’s possession, when the defense intends to use those statements at trial.
2. Whether compelling such production violates the defendant’s constitutional rights, including the privilege against self-incrimination, due process, confrontation-related interests, or the right to effective assistance of counsel (including work-product protections).
3. Whether the court should decide the legality of the discovery order despite the defendant’s guilty plea during the pendency of the appeal.

## Decision

- The Supreme Judicial Court upheld the discovery order.
- The court held that Rule 14(a) permits reciprocal discovery requiring a defendant who has sought discovery to provide the Commonwealth with certain witness statements of Commonwealth trial witnesses in the defense’s possession, limited to materials intended for use at trial.
- The court held the order did not violate federal or state constitutional rights, including self-incrimination, due process, or effective assistance of counsel.
- The court reached the merits despite the guilty plea because the issue was fully briefed, recurring, and important to pretrial criminal practice.

## Legal Principles

- Massachusetts trial courts have discretion under Mass. R. Crim. P. 14(a) to require reciprocal discovery when a defendant seeks discovery from the Commonwealth, so long as the requirement is reciprocal and reasonably limited (including to case-in-chief materials).
- A reciprocal discovery order may require production of written or recorded statements of Commonwealth witnesses that are in the possession, custody, or control of the defendant or defense counsel, when the defense intends to use those statements at trial.
- Compelled disclosure of third-party witness statements, as opposed to compelled statements by the defendant, does not constitute testimonial self-incrimination under the Fifth Amendment or Massachusetts constitutional protections.
- Work-product and effective-assistance protections principally shield counsel’s mental impressions and legal theories; factual witness statements may be subject to reciprocal disclosure when ordered under Rule 14(a) with appropriate limits.
- A guilty plea does not necessarily moot appellate review of a pretrial practice issue when it is likely to recur, fully briefed, and significant for guidance in criminal procedure.

## Conclusion

The Supreme Judicial Court held that, in a case where the defendant sought broad discovery from the Commonwealth, Rule 14(a) permitted a reciprocal order requiring the defense to produce written or recorded statements of Commonwealth trial witnesses in the defense’s possession that the defense intended to use at trial, and that the order did not infringe the defendant’s federal or Massachusetts constitutional rights.


Commonwealth v. Durham, 446 Mass. 212, 843 N.E.2d 1035 (Mass. 2006)