Commonwealth v. De Christoforo

Spiegel, J.

(dissenting). I am in complete accord with the Chief Justice’s dissenting opinion. Nevertheless I feel impelled to also state my disagreement with the majority's adherence to the rule requiring the defendant to show a “particularized need” to inspect the grand jury minutes of the testimony of witnesses who testified before the grand jury and who subsequently testified at the trial.

1. The current rule imposes on the defendant a well-nigh intolerable burden, and is thus out of touch with the “growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice.” Dennis v. United States, 384 U. S. 855, 870. In the case at bar for instance, the majority hold that the defendant was not entitled to disclosure because he “did not show that the grand jury *551minutes would cast further light as to either of the alleged inconsistencies ... or that the grand jury testimony might be in any other way inconsistent with Carr's testimony at trial.'' How could the defendant make such a showing, in the absence of an admission by the witness (see, e.g. Commonwealth v. Carita, 356 Mass. 132, 141-142), without first inspecting the minutes? It is a formidable task confronting a defendant to show a "particularized need,” unless perchance he is possessed of supernatural powers. In the case of Jencks v. United States, 353 U. S. 657, 667-668, involving a defendant's request for inspection of written reports of F. B. I. agents concerning events as to which they testified at trial, the court pointed out: "Requiring the accused first to show conflict between the reports and the testimony is actually to deny the accused evidence relevant and material to his defense. The occasion for determining a conflict cannot arise until after the witness has testified, and unless he admits conflict . . . the accused is helpless to know or discover conflict without inspecting the reports. A requirement of a showing of conflict would be clearly incompatible with our standards for the administration of criminal justice in the federal courts and must therefore be rejected.”

This court in Commonwealth v. Cook, 351 Mass. 231, 233, citing Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395, and Dennis v. United States, 384 U. S. 855, has said that our rule requiring a defendant to show a "particularized need” appears to be the same as the Federal rule. We should recognize, however, that many Federal Courts of Appeals have interpreted the Dennis case as implicitly repudiating the "particularized need” standard.1 One court in the case of Cargill v. United States, 381 F. 2d 849, 851-*552852 (10th Cir.) has said relative to' the opinion, in the Dennis case: “The Court retains the requirement that ‘particularized need’ be shown in order that the secrecy may be lifted, but holds in effect that such need is shown when the defense states that it wishes to use the transcript for the purpose of impeaching a witness, to refresh his recollection, or to test his credibility. Thus the Court as far as cross-examination is concerned has removed most, if not all, of the substance from the particularized need requirement, although it has retained the term. Under this opinion, it appears that the defense is entitled to the grand jury transcript of the witness’s testimony when the jury's functions are ended, and when the request is made during the course of trial that it is necessary for the purpose of cross-examining such witness for the above mentioned purposes. The Supreme Court mentions and relies to some extent on the rationale of Jencks v. United States, 353 U. S. 657 . . . on this point. The Court also states ‘that ... it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact. Exceptions to this are justifiable only by the clearest and most compelling consideration.’ ” Three Courts of Appeals have held that once a government witness has testified at trial, the defendant has a right to examine his grand jury testimony on the'subjects about which he testified at the trial, unless the government can show special circumstances exist justifying a protective order. United States v. Youngblood, 379 F. 2d 365, 370 (2d Cir.). United States v. Amabile, 395 F. 2d 47, 53 (7th Cir.). Harris v. United States, 433 F. 2d 1127, 1128-1129 (D. C. Cir.). The First Circuit Court, in Schlinsky v. United States, 379 F. 2d 735, 740 (1st Cir.), has said that, in the light of the Dennis opinion, “the requirement of ‘particularized need’ is very easily met. Here, as in ¡[the] Dennis [[case], it was for cross-examinatian.” But cf. Walsh v. United States, 371 F. 2d 436 (1st Cir.).

The American Bar Association (Standards Relating to *553Discovery and Procedure Before Trial, § 2.1 [a] [iii], p. 13 [Approved Draft 1970]) has recommended that the prosecutor be required to disclose those portions of the grand jury minutes containing relevant testimony of persons whom he intends to call as witnesses at the trial. Several State statutes grant defendants similar rights of inspection in advance of trial. E.g. Cal. Penal Code § 938.1; Iowa Code Ann., § 772.4; Ky. Rev. Stat., Rules of Criminal Procedure, Rule 5.16 (2); Minn. Stat. Ann., § 628.04; Okla. Stat. Ann., Tit. 22, § 340.

It is true that in certain instances it may be advisable to maintain grand jury secrecy in advance of trial to protect the safety of witnesses. (See, e.g. Posey v. United States, 416 F. 2d 545 [5th Cir.], the case involving the murder of three civil rights workers near Philadelphia, Mississippi, in June, 1964.) But as courts and commentators have often pointed out, once a witness has testified at trial, the reasons for preserving grand jury secrecy simply fade away. Commonwealth v. Mead, 12 Gray, 167, 170. State v. Faux, 9 Utah 2d 350, 353. Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395, 405-406 (dissenting opinion). Sherry, Grand Jury Minutes: The Unreasonable Rule of Secrecy, 48 Va. L. Rev. 668, 674. Calkins, Grand Jury Secrecy, 63 Mich L. Rev. 455, 476-477. As Dean Wigmore (Wigmore, Evidence [McNaughton rev. 1961] § 2362, at p. 736) has said concerning the grand jury witness: “If he tells the truth and the truth is the same as he testified before the grand jury, the disclosure of the former testimony cannot possibly bring to him any harm (in the shape of corporal injury or personal ill will) which his testimony on the open trial does not equally tend to produce.” On the other hand, “if the grand jury testimony is inconsistent with the testimony given at trial, then fair play seems to dictate that the defendant be allowed use of the grand jury minutes for impeachment purposes, unless there is a compelling need for secrecy to protect individuals or in the aid of national security.” United States v. Barson, 434 F. 2d 127,129-130 (5th Cir.).

*554Our decisions holding to the “particularized need” standard are of comparatively recent origin. I do not, however, find this a persuasive reason to follow a rule which does not stand the light of logical analysis. The principal of stare decisis is not absolute because no court is infallible. There should be no reluctance to overrule a decision which is wrong, either because it was not sound when originally promulgated or because subsequent events prove it to be wrong.2

Footnote 2 of the majority opinion indicates that if the defendant had included the grand jury minutes in the record on appeal, this court could have then determined whether the defendant had been prejudiced by the judge’s action in denying the defendant the right to inspect them, or in refusing to read them himself “in camera.” I do not believe that a trial judge or an appellate court should conclude that a defendant would not have been able to undermine a witness’s credibility by use of the grand jury minutes. This should be the sole privilege of the defendant. “In our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate” (emphasis supplied). Dennis v. United States, 384 U. S. 855, 875. This is vastly different from the situation where a question has been excluded in direct examination and an offer of proof is before this court. In such An instance, of course, this court could determine that the evidence contained in the offer of proof would not have benefited the defendant. In cross-examination using the grand jury minutes, we have no means of knowing just what questions counsel for the defendant might ask, or what the answers *555might be, or what benefit the defendant might derive therefrom.

I am of the firm opinion that we should hold that the Commonwealth, after a witness has testified at trial or at any preliminary or voir dire hearing, be required to turn over to the defendant the relevant portion of his grand jury testimony, unless the Commonwealth can demonstrate a compelling need to keep such testimony secret. Disclosure facilitates the fact finding process; secrecy only inhibits it.

2. Officer Carr testified that the defendant told a false story about the dead man in the car. The Commonwealth introduced tins evidence to show consciousness of guilt. Cross-examination of the officer showed that he had previously testified at a probable cause hearing that it was Oreto who told this falsehood. Even if I were inclined to follow the rationale employed by the majority I would feel obliged to hold that the requisite “particularized need” was established and consequently would be unable to conclude that the judgment in this case should be affirmed. See Commonwealth v. Carita, 356 Mass. 132, 141-142; Commonwealth v. Doherty, 353 Mass. 197, 215-216 (dissenting opinion). Compare Commonwealth v. Kiernan, 348 Mass. 29, 36.

The Commonwealth should have no interest in convicting an accused on the basis of testimony which has not been so thoroughly impeached as the evidence permits. I see no basis for the apparent assumption by the majority, without having seen the grand jury minutes, that De Christoforo could not benefit from an examination of them because he had “made full use of . . . [an] inconsistency [at an earlier probable cause hearing] ... to impeach Carr’s testimony at the trial.” In this area of disclosure of grand jury testimony, the Supreme Court of the United States has said: “There is no justification for relying upon ‘assumption.’” Dennis v. United States, 384 U. S. 855, 874.

In a similar situation, a Federal Court has held that “[inconsistent testimony on a crucial issue by the principal prosecution witness demonstrated ‘a particularized *556need’ as required by Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395, 400 ... to produce the pertinent grand jury minutes.” Harrell v. United States, 317 F. 2d 580, 581, fn. 5 (D. C. Cir.), There the arresting officer had given several different versions of his seizure of narcotics from the defendant’s taxicab. The judge refused to allow the defendant to examine the officer’s grand jury testimony, or to do the same himself in camera, apparently on the theory that any possible material inconsistencies would be merely cumulative. The court quite rightly pointed out that “[njot having seen the grand jury testimony, the trial judge was in no position even to speculate on what effect its disclosure might have had on Hutcherson’s credibility, with him or with the jury. We cannot assume that Hutcherson was so discredited by the disclosed inconsistencies that further discrediting was impossible.” Id. at 581.

3. I make no pretence of determining the defendant’s innocence or guilt. However, I am convinced that he did not receive a fair trial and thus I would reverse the judgment and set aside the verdict.

Since the Supreme Court in the Dennis case based its decision upon its supervisory powers over the Federal District. Courts and not upon a constitutional right of the accused, we are not compelled to follow it. Connor, v. Picard, 308 F. Supp. 843, 846 (D. Mass.). This case and other Federal cases noted in this dissent are cited not because they are controlling but because I believe that they represent a rule of reason.

It may be argued that the impact of an abrupt reversal is lessened by an assertion that a court from a date in the future will no longer follow the rule originally enunciated. See, e.g. Colby v. Carney Hosp. 356 Mass. 527; United States v. Youngblood, 379 F. 2d 365, 370 (2d Cir.); United States v. Amabile, 395 F. 2d 47, 53 (7th Cir.). Although I appreciate the validity of such a prospective holding in a civil case, I see no merit whatever in such a theory when a defendant’s life or liberty is at stake.