Commonwealth v. Durham , 446 Mass. 212 ( 2006 )

Greaney, J.

In issue is the order of a Superior Court judge that directed the defendant, as part of the reciprocal discovery authorized by Mass. R. Crim. P. 14 (a), 378 Mass. 874 (1979),¹ to furnish the Commonwealth with “statements” of witnesses whom the Commonwealth intended to call at trial and which were in the possession, custody, or control of the defendant or his attorney. The order required that the “statements” were to be provided to the Commonwealth within seven days of defense counsel’s receipt of a list of civilian witnesses whom the Commonwealth intended to call at trial. The order pertained to the defendant’s indictment for murder in the first degree in connection with the brutal stabbing of a fourteen year old girl in July, 1981. (Although the defendant immediately was a suspect in the victim’s death, he was not charged with her murder until February, 2000, after deoxyribonucleic acid [DNA] test results linked him to the crime.) The defendant, while decision was pending, entered a guilty plea to manslaughter and has been sentenced. We conclude that the appeal should be decided. We find the order lawful; the discovery required is permitted by the rule and violates no Federal or State constitutional right of the defendant.

The procedural background is as follows. In the parties’ pretrial conference report, executed pursuant to Mass. R. Crim. P. 11, 378 Mass. 862 (1979), the defendant agreed to provide specified reciprocal discovery to the Commonwealth, including “[a]ny written or recorded statements of any witness, excluding the [d]efendant[,] in the possession, custody or control of [d]efense [c]ounsel or agents” that “the [defendant intends to use for the case in chief.” The defendant later filed a motion for additional discovery, seeking the names of all the Commonwealth’s prospective trial witnesses and an opportunity to inspect all documentary and physical evidence that the Commonwealth intended to offer at trial. A Superior Court judge allowed the motion, contingent on the defendant providing the same discovery to the Commonwealth, and limiting the obligation to such evidence that pertained to each party’s case-in-chief.

Subsequently, the Commonwealth filed a motion for additional reciprocal discovery. In its motion, the Commonwealth sought, among other requests, the disclosure of any written or recorded statement of any prospective witness, including potential witnesses for the Commonwealth, that the defendant intended to offer at trial for any purpose, including for impeachment. A different Superior Court judge allowed the Commonwealth’s motion in part, but reserved judgment on the above-specified request. Later, in a written memorandum of decision and order, the judge allowed the request.² The judge took care to identify what materials were meant by the term “statements,” explaining:

“The term ‘statement’ is defined in Mass. R. Crim. P. 14 (d),[³] and also Mass. R. Crim. P. 23 (a)[⁴] .... The defendant’s obligations to produce ‘statements’ of Commonwealth witnesses is limited to written statements that have been adopted or approved by the witness, statements that have been recorded or transcribed, or any statements that may be contained in written reports of an investigator or other person and constitute verbatim quotes or declarations .... Work product, as described in Mass. R. Crim. P. 14 (a) (5),[⁵] and in [Commonwealth v. Bing Sial Liang, 434 Mass. 131, 137-140 (2001)], and which may include attorney or an investigator’s notes and impressions concerning witness statements, need not be disclosed. ... [In addition,] consistent with the defendant’s privilege against self-incrimination, to the extent that any ‘statements’ of Commonwealth witnesses in his possession include information concerning the identity of any person that (a) all the discovery produced to date indicates the Commonwealth is not aware of, and (b) is not a person the defendant himself intends to call as a witness at trial, the defendant is not required to provide that portion of the statement to the Commonwealth.”

As can be seen, the judge’s order did not limit the required disclosure to statements that the defendant could use for impeachment purposes. Rather, the order is broader, compelling the defendant to furnish statements that the Commonwealth also possibly could use in its case-in-chief or that the defendant might use in establishing a defense.

The defendant moved for reconsideration and for a protective order; both requests were denied. The judge, however, stayed the discovery order at the defendant’s request to permit him to seek relief in the county court under G. L. c. 211, § 3. A single justice reserved and reported the case, without decision, to the full court. He directed the parties to file with the full court a written stipulation reflecting their understanding of the order.

The stipulation was reviewed and approved by the judge. The stipulation clarified that, under the order, (1) the defendant was only required to turn over statements of Commonwealth witnesses that he intended to use at trial, including statements to third parties unconnected to the defendant’s case; (2) the defendant was not required to disclose statements of a witness for the Commonwealth unless the Commonwealth previously supplied discovery (in the form of grand jury minutes, police reports, witness statements or some other form) containing or describing that witness’s statements; (3) to the extent that any statements of the Commonwealth’s witnesses included information concerning the identity of any person whom discovery produced to date indicated that the Commonwealth was unaware of, and whom the defendant did not intend to call as a witness at trial, the defendant was not required to provide that portion of the statement to the Commonwealth; and (4) the Commonwealth was permitted to disclose to its witnesses prior to trial the substance of the witnesses’ respective statements that were obtained by the defendant. The defendant challenged the order only insofar as it required him to turn over statements of intended witnesses for the Commonwealth (not intended witnesses for the defense).

1. Because the defendant’s guilty plea and sentence resolves the indictment, the case is moot. See Commonwealth v. Pagan, 445 Mass. 315, 317 & n.1 (2005). We nonetheless address the issue raised. The issue is fully briefed and raises matters of considerable importance to the pretrial preparation of criminal cases. Several amici have expressed their views. We have been advised that the issue is occurring on a frequent basis in the trial courts and uncertainty exists whether an order similar to the one in issue can be entered. See id. at 317; Delaney v. Commonwealth, 415 Mass. 490, 492 (1993); Commonwealth v. Yameen, 401 Mass. 331, 333 (1987), cert. denied, 486 U.S. 1008 (1988).

2. The defendant’s arguments seeking to overturn the order were four: (a) the order exceeds the scope of rule 14 (a) (3); (b) the order is barred by the work product exception to rule 14; (c) the order directs the production of discovery that is not allowed in the Federal Courts or by courts in most other States; and (d) the order is unworkable. We address each argument. (a) After listing mandatory discovery for the defendant, rule 14 (a) (2) outlines discretionary discovery for the defendant as follows:

“Upon motion of a defendant made pursuant to [Mass. R. Crim. P. 13, 378 Mass. 871 (1979)], the judge may issue an order of discovery requiring that the defendant be permitted to discover, inspect, and copy any material and relevant evidence, documents, statements of persons, or reports of physical or mental examinations of any person or of scientific tests or experiments, within the possession, custody, or control of the prosecutor or persons under his direction and control. The judge may also order the production by the Commonwealth of the names and addresses of its prospective witnesses and the production by the probation department of the record of prior convictions of any such witness.”

It is further provided in rule 14 (a) (3) (A) for reciprocal discovery:

“If the judge grants discovery or inspection to a defendant pursuant to subdivision (a) (2) of this rule, the judge may upon motion by the Commonwealth condition his order by requiring the defendant to permit the Commonwealth to discover, inspect, and copy any material and relevant evidence discoverable under subdivision (a) (2) which the defendant intends to use at trial, including the names, addresses, and statements of those persons whom the defendant intends to use as witnesses at trial” (emphasis added).

The defendant relied on the emphasized language to argue that the rule applies only to information about defense witnesses called during the defendant’s case-in-chief, noting the obvious, that a prosecution witness is not the equivalent of a defense witness.

The ordered discovery is permitted by the rule, which cannot, as the defendant sought to do, be read in isolation. Under rule 14 (a) (3) (A), the judge was authorized to order the defendant to disclose “any material and relevant evidence discoverable under subdivision (a) (2) which the defendant intends to use at trial.” Evidence discoverable under rule 14 (a) (2) includes “any material and relevant evidence, documents, [or] statements of persons . . . within the possession, custody, or control of [the adversary].” Nothing in rule 14 (a) (2) limits the word “persons” to include only witnesses whom the disclosing party intends to call at trial during the presentation of its case-in-chief. Such a limitation would be contrary to the fact that “persons,” characterized here as prospective witnesses, “belong neither to the Commonwealth nor to the defence. They are not partisans and should be available to both parties in the preparatian of their cases.” Commonwealth v. Balliro, 349 Mass. 505, 516 (1965). See Commonwealth v. Adkinson, 442 Mass. 410, 416 (2004). The same can be said for their “statements,” a point forcefully made in Commonwealth v. Reynolds, 429 Mass. 388, 397-398 (1999), where a conceptually similar (but not contested) pretrial discovery order was enforced, in the following terms: “Allowing the defendant to withhold [the ordered] evidence [in the form of written or recorded statements] against a witness who is certain to be called to testify would undermine the discovery rules and allow attorneys to return to trial by ambush. Theatrics do not accord with our discovery process.”

The language emphasized in rule 14 (a) (3) (A), on which the defendant relied, thus presents only one example of the type of evidence discoverable under the rule. Cf. Doe v. Superintendent of Schs. of Worcester, 421 Mass. 117, 127-128 (1995) (interpreting word “including” as word of enlargement and not one of limitation). This interpretation — that the word “including” bespeaks an expansion rather than a restriction — is supported by the fact that the substance of subdivision (a) (2) of the rule “broadly parallels” a similar rule in New Jersey, see N.J. R. Crim. P. 3:13-3 (West 2005),⁶ which permits the type of discovery ordered in this case. Reporters’ Notes to Mass. R. Crim. P. 14, Mass. Ann. Laws, Rules of Criminal Procedure at 1470 (LexisNexis 2005).⁷

In his dissent, Justice Cordy contends that allowing the Commonwealth to discover any statements beyond the statements of witnesses whom the defense intends to call at trial makes the final portion of rule 14 (a) (3) (A) mere “surplusage.” Post at 235. To the contrary, it resolves what would otherwise have been a potential ambiguity in the rule, an ambiguity that would have led to arguments that the defense did not have to turn over the statements of its own witnesses. Where rule 14 (a) (2) allowed the defendant, by motion, to obtain from the Commonwealth any “statements of persons,” and rule 14 (a) (3) (A) in turn allowed the Commonwealth to obtain from the defendant the same items covered by rule 14 (a) (2) if the defense intended to “use [those items] at trial,” the rule would allow the Commonwealth to discover from the defense “statements of persons” that the defense intended to “use at trial.” Left without further explication, the argument could be made that rule 14 (a) (3) (A) did not provide for the discovery of statements of defense witnesses because the defense did not intend to “use” the “statements” of its witnesses — it had intended only to present their Uve testimony. Addition of the phrase “including the names, addresses, and statements of those persons whom the defense intends to use as witnesses at trial,” rule 14 (a) (3) (A), resolves that potential ambiguity and precludes such an argument. It does not, however, operate to restrict the scope of rule 14 (a) (3) (A) read as a whole. Should there have been other “statements” that the defendant had intended to use at trial, they would have been discoverable.

In addition, Justice Cordy’s dissent misinterprets the import of the revised Reporters’ Notes to the 2004 version of the rule. Post at 244 n.10. See Reporters’ Notes to Mass. R. Crim. R 14, Mass. Ann. Laws, Rules of Criminal Procedure (LexisNexis 2005). Under the 2004 version of Mass. R. Crim. P. 14 (a) (1) (A) (vii), as appearing in 442 Mass. 1518 (2004), the Commonwealth must produce as part of its automatic discovery “statements of persons the Commonwealth intends to call as witnesses.” Absent a motion by the defense, the Commonwealth is not required to produce the broader category of any and all “statements of persons.” Similarly, the automatic discovery that the defendant must produce is limited to “statements of those persons whom the defendant intends to use as witnesses at trial.” Mass. R. Crim. P. 14 (a) (1) (B), as appearing in 442 Mass. 1518 (2004). The revised Reporters’ Notes merely reiterate that automatic discovery does not extend to statements that the defense intends to use for purposes of cross-examination, and that automatic discovery of witness statements is the same for both sides — they must each produce the statements of the witnesses they intend to call. The Reporters’ Notes then recite that “[djiscovery of other statements must be pursued by motion.” Reporters’ Notes to Mass. R. Crim. P. 14, Mass. Ann. Laws, Rules of Criminal Procedure, supra at 1457. Nothing in the Notes suggests that other statements the defendant intends to use may not be discovered by the Commonwealth. The Notes merely make clear that any such discovery requires a motion, and that it does not come within the category of automatic discovery.

These observations aside, there is no need to engage in a lengthy exegesis on the subject. To the extent that there may be ambiguity (and we do not perceive any), the problem yields to the principle that we are the final arbiter of what the rule means and permits,⁸ and we conclude that it permits the ordered discovery, unless one of the defendant’s remaining arguments has enough force to persuade us to reach a contrary result. We turn now to those arguments.

(b) The order does not violate the work product provision contained in rule 14 (a) (5). See note 5, supra. The order expressly does not apply to work product contemplated by rule 14 (a) (5) and as described in Commonwealth v. Bing Sial Liang, 434 Mass. 131, 138-140 (2001), and cases cited (extending protection of notes of victim advocates, including notes from interviews with complaining witnesses, where such material is inextricably commingled with advocate’s work product). Contrary to the Federal doctrine, our work product doctrine “favors liberal discovery.” Commonwealth v. Paszko, 391 Mass. 164, 188 (1984). As such, and in light of the precise terms of the order, we decline to extend the work product doctrine to encompass a situation, almost impossible to identify, where a witness statement “seem[s]” to reveal the mental processes of the defense “by virtue of the areas covered.”

(c) The defendant correctly pointed out that Fed. R. Crim. P. 16 (b) (2)⁹ precludes pretrial discovery of statements by any witness made to the defendant or to the defendant’s attorney or agent. He also pointed out that several States have imposed the same, or similar type of, restriction. See Del. R. Crim. P. 16 (Michie 2004); Idaho Crim. R. 16(g) (Michie 2005); Kan. Crim. P. Code § 22-3212(b) (West 2005); N.D. R. Crim. P. 16(b)(2) (West 2005); S.D. Codified Laws § 23A-13-14 (West 2005); Va. Supreme Court R. 3A:11 (LexisNexis 2005); W. Va. R. Crim. P. 16(a)(2), 26.2 (LexisNexis 2004); Wyo. R. Crim. P. 16(a)(2), 26.2 (LexisNexis 2005).

The restriction reflects a broad work product doctrine under Federal law, and in other States, that has been rejected in Massachusetts in favor of “liberal discovery.” See Commonwealth v. Paszko, supra at 187-188. In many of these jurisdictions, the restriction has been a consequence of rules, or practices, that do not require, or provide for, the discovery of witness lists. See Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth? A Progress Report, 68 Wash. U. L.Q. 1, 13 (1990) (explaining that concern for witness intimidation “has proved a major obstacle to discovery of witness lists [and has] stood in the way of pretrial disclosure of witness statements”). See also 4 W.R. LaFave, J.H. Israel, & N.J. King, Criminal Procedure § 20.3(i), at 873 (2d ed. 1999) (identifying several justifications articulated for completely barring discovery of witness statements, including work product protection, like treatment with respect to witness lists, and ample opportunity to challenge testimony at trial). However, our rule, see rule 14 (a) (2) and (a) (3), permits pretrial discretionary and reciprocal discovery of the names and addresses of prospective witnesses for the Commonwealth and the defense, and in Massachusetts, a defendant may interview prospective witnesses, including “prospective witnesses held in the custody of the Commonwealth.” Commonwealth v. Balliro, 349 Mass. 505, 516 (1965). The restriction is not universal. See, e.g., Minn. R. Crim. P. 9.02 subd. l(3)(b) (West 2005); N.J. R. Crim. P. 3:13-3(d)(4); Wash. Superior Court Crim. R. 4.7(b)(1) (West 2004). See also State v. Culkin, 791 S.W.2d 803, 811 (Mo. Ct. App. 1990 (rejecting defendant’s argument that judge erred in ordering defendant’s attorney to produce to State his notes of interview with victim); State v. Chagnon, 139 N.H. 671, 672, 677-678 (1995) (concluding that contents of defense investigator’s report, namely, statement of victim, was not work product and was discoverable in judge’s discretion under general rule of reciprocal discovery); People v. Perez, 171 Misc. 2d 75, 78 (N.Y. Sup. Ct. 1996) (holding that prosecution was entitled to pretrial discovery of all statements, including those tape recorded, handwritten, or stenographically transcribed, of its witnesses that were obtained by defense); State v. Young, 94 Or. App. 683, 685 n.1, 689 (1989) (concluding that, under discovery rule obligating defense counsel to disclose “written or recorded statements or memoranda of any oral statements of such persons other than the defendant” and which the defendant “intends” to offer at trial, defense counsel must give timely discovery to prosecutor when defense counsel can “reasonably predict” that she will use evidence to impeach prosecution’s witness); State v. Yates, 111 Wash. 2d 793, 802 (1988) (affirming order that “all recorded or written statements of potential prosecution witnesses which were taken by defense counsel or the defense investigator be provided to the State”). In view of the text of our rule, and its provisions permitting the discovery of witness lists, together with the fact that our work product doctrine “favors liberal discovery,” Commonwealth v. Paszko, supra, we decline to invalidate the order on the basis of noncontrolling and conflicting authority predicated on quite different discovery practices and principles. Our conclusion comports with the “significant liberalization of criminal discovery,” and the notion that “[t]he proper guide to discovery practices should [be] the degree to which discovery will enhance the reliability of factfinding.” Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth? A Progress Report, supra at 2-3, 8.

(d) The defendant argued that the order was unworkable because it would force him to choose between disclosing only limited information from the statements that he was certain he would use at trial, thereby forfeiting other material, or disclosing all information from the statements that he would potentially use, thereby possibly disclosing incriminating evidence and material that he would not actually use at trial. The defendant’s concern about disclosure of incriminating evidence is unfounded. Rule 14 (a) (3) (A) requires production of statements only that the defendant “intends to use at trial.” Incriminating evidence (on the crime charged) is not the sort of evidence that competent defense counsel “intends to use at trial.” Without the accelerated disclosure, the utility of the information to the prosecutor would be limited and the veracity of the information would be untested. The order is no less “workable” than other discovery obligations imposed on the parties when the defendant obtains discretionary discovery, thus invoking the reciprocity provision. The order may require counsel to make strategic choices in the trial process, but that consideration provides no basis to invalidate the order. In the end, “[b]road discovery makes for a fair trial and enhances the likelihood that the truth will come out.” Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth? A Progress Report, supra at 15.

3. The defendant argued that the order violates Federal and State constitutional protections by impairing his right to confront the witnesses against him, his privilege against self-incrimination, and his right to a fair trial and the effective assistance of counsel.

(a) “Both the Sixth Amendment [to the United States Constitution] and art. 12 [of the Massachusetts Declaration of Rights] guarantee a criminal defendant’s right to confront the witnesses against him through cross-examination.” Commonwealth v. Miles, 420 Mass. 67, 71 (1995). There is no question that effective cross-examination is an important safeguard of liberty and a valuable tool for testing the reliability of evidence, thereby ensuring a truthful verdict. We also have no disagreement with the view that, as a tactical matter, surprise can be an important element of effective cross-examination. But neither of these propositions is affected by the order to a degree where it can be held that the defendant’s constitutional right to confront witnesses against him would be violated.

The statements the defendant would have had to turn over under the order were presumably already known to the Commonwealth’s witnesses who gave them. The defendant, if appropriate, might have received reciprocal discovery of written statements obtained by the Commonwealth from defense witnesses. As such, both sides are given a fair opportunity to investigate the veracity of statements and are not faced with confronting them for the first time at trial. See United States v. Nobles, 422 U.S. 225, 241 (1975) (“The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth”).¹⁰ Indeed, such investigation might even have revealed beneficial information for the defense. Had there been a trial, the defendant’s trial counsel would have been afforded an adequate opportunity to cross-examine effectively the witnesses who gave the statements. In addition to asking each witness about the substance of his or her statement, defense counsel could have questioned the witness about pretrial preparation. Such questioning could negate any mistaken impression that the witness was encountering the material for the first time and also could suggest that the witness may have conveniently crafted an explanation for any variations in former testimony or statements. “[T]he right to confront and to cross-examine [a witness] is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Commonwealth v. Francis, 375 Mass. 211, 214, cert. denied, 439 U.S. 872 (1978), quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973). The trial process seeks to ascertain the truth. Our conclusion recognizes that “[t]he truth is most likely to emerge when each side seeks to take the other by reason rather than by surprise.” See Traynor, Ground Lost and Found in Criminal Discovery, 39 N.Y.U. L. Rev. 228, 249 (1964).

(b) There was no violation of the defendant’s privilege against self-incrimination under either the Fifth Amendment to the United States Constitution or the broader protection afforded by art. 12. The defendant was not being compelled to state anything himself. Rather, the rule and order only permit discovery of statements made by other persons that the defendant “intended] to use at trial.” In United States v. Nobles, supra at 227-228, when defense counsel attempted to impeach the credibility of two prosecution witnesses with prior statements they allegedly had made to a defense investigator, the Federal trial judge ordered that the witnesses’ prior statements be disclosed to the prosecutor for his use in cross-examining the investigator. In rejecting the defendant’s Fifth Amendment challenge, the United States Supreme Court explained:

“The Fifth Amendment privilege ... ‘is a personal privilege: it adheres basically to the person, not to informatian that may incriminate him.’

“In this instance disclosure of the relevant portions of the defense investigator’s report would not impinge on the fundamental values protected by the Fifth Amendment. The court’s order was limited to statements allegedly made by third parties who were available as witnesses to both the prosecution and the defense. [The defendant] did not prepare the report, and there is no suggestion that the portians subject to the disclosure order reflected any information that he conveyed to the investigator. The fact that these statements of third parties were elicited by a defense investigator on [the defendant’s] behalf does not convert them into [his] personal communications. Requiring their production from the investigator therefore would not in any sense compel [the defendant] to be a witness against himself or extort communications from him.

“We thus conclude that the Fifth Amendment privilege . . . does not extend to the testimony or statements of third parties called as witnesses at trial.”

Id. at 233-234, quoting Couch v. United States, 409 U.S. 322, 328 (1973). The reasoning applies to the disclosure of witnesses’ statements prior to trial.

The timing of the disclosure has no relevance to the defendant’s privilege against self-incrimination. The order merely “accelerate[d]” disclosures that the defendant intended to make. See Williams v. Florida, 399 U.S. 78, 85 (1970). See State v. Yates, supra at 800 (rejecting Fifth Amendment challenge to order requiring defense to disclose to State recorded and written statements given by prosecution witnesses to defense counsel or defense investigator). The privilege does not entitle “a defendant as a matter of constitutional right to await the end of the State’s case before announcing the nature of his defense, any more than it entitles him to await the jury’s verdict on the State’s case-in-chief before deciding whether or not to take the stand himself.” Williams v. Florida, supra. This statement applies equally to disclosure of a defense, like alibi, where required by the criminal rules of procedure and to the disclosure required by the order.

(c) The order also did not diminish, in any legally significant way, the defendant’s right to be represented by effective counsel or to have a fair trial. No production was required of statements that the defense did not intend to use at trial. As to statements intended to be used at trial, the order simply gives the prosecution fair notice of the information the defendant had obtained from prospective prosecution witnesses in the form of written or recorded statements. Under rule 14, the discovery is reciprocal, and the defendant was also, but first, entitled to statements of persons in the prosecutor’s possession, custody, or control. The defendant’s trial counsel would still have been able to cross-examine the prosecutor’s witnesses and impeach their credibility. The statements may have contained information that provided substantive evidence that may have benefited the defense. The Commonwealth would be entitled to see that information as well. Nothing in the State or Federal Constitution guarantees a defendant “a right so to defend as to deny the State a chance to check the truth of his position.” State v. Angeleri, 51 N.J. 382, 385, cert. denied, 393 U.S. 951 (1968). As pointed out by the United States Supreme Court in the context of disclosure of an alibi defense:

“The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as ‘due process’ is concerned, for [an order] which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to [discover and] investigate certain facts [that may be relevant] to the determination of guilt or innocence” (footnote omitted).

Williams v. Florida, supra at 82. See Wardius v. Oregon, 412 U.S. 470, 474 (1973) (“The growth of such [reciprocal] discovery devices is a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system. . . . [Njothing in the Due Process Clause precludes States from experimenting with systems of broad discovery designed to achieve these goals”). Indeed, we have upheld reciprocal discovery obligations, despite their tendency to compel defense counsel to make strategic decisions before trial. See, e.g., Commonwealth v. Diaz, 431 Mass. 822, 830 (2000) (policy justifying reciprocal discovery, when defendant places his statements and mental state in issue, applies to alleged inability to premeditate or form specific intent to kill, and to lack of criminal responsibility defense); Commonwealth v. Blodgett, 377 Mass. 494, 499, 500-501 & n.6 (1979) (judge properly precluded defense from calling alibi witnesses until he disclosed their names to Commonwealth); Commonwealth v. Lewinski, 367 Mass. 889, 902-903 (1975) (“The judge may condition the right of the defense to secure a witness’s statement from the prosecution, on the reciprocal discovery by the defense to the prosecution of all or part of a statement by the same witness given to the defense”). The due process clause speaks “to the balance of forces between the accused and his accuser.” Wardius v. Oregon, supra. That balance is satisfied here. See State v. Yates, supra at 800-801 (rejecting right to effective assistance of counsel and due process challenges to order requiring defense to disclose to State recorded and written statements given by prosecution witnesses to defense counsel or defense investigator).

4. In summary, we acknowledge, as the defendant had emphasized, that cross-examination is important for determining credibility and assisting the trier of fact in arriving at a fair verdict. We acknowledge as well that some “imbalance” exists between the resources of the State and those of the defendant. The imbalance, however, has been considerably adjusted in modem criminal practice by requiring the State to assist the defense with full discovery, by the provision of considerable funds to hire an investigator and to retain experts to conduct evaluations and other tests (and then to testify), and by nonconstitutionally compelled prophylactic measures, such as permitting jury instruction on topics like the failure of the police to record a confession, see Commonwealth v. DiGiambattista, 442 Mass. 423, 447-449 (2004), and mistaken identification, see Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979) (Appendix). The foregoing lists just a few measures. The role of cross-examination, and the existence of an imbalance, should not override the right of the people, and the victims of crimes, to have the evidence evaluated by a fully informed trier of fact. These considerations are responsibly achieved by the interpretatian of the mie we reach. And, as we have pointed out, there is no constitutional infringement on the defendant’s rights by our interpretation, notwithstanding his efforts to have created a constitutional chimera. Our interpretation recognizes that criminal trials are matters of justice and not sporting events in which the side that has the strongest advocate (employing advantages to which he or she is not entitled) gains the upper hand.

5. The case is remanded to the county court for the entry of a judgment dismissing the petition as moot.

So ordered.

1 We apply the version of Mass. R. Crim. P. 14, 378 Mass. 874 (1979), that was in effect when the defendant was indicted in 2000. While rule 14 has since been amended, the amendments apply only “to those cases initiated (by indictment or complaint) on or after the effective date [September 7, 2004].” 442 Mass. 1501 (2004). See Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518 (2004). See also Mass. R. Crim. P. 14, as amended, 444 Mass. 1501 (2005).

2 The judge ordered the defendant to:

“[Pjroduce and provide the Commonwealth with ‘statements’ of civilian witnesses that are in the possession, custody or control of the defendant or his attorney, and that constitute statements of witnesses the Commonwealth intends to call at trial, all in accordance with the discussion of the term ‘statements’ set out in this memorandum of decision and order. The defendant is to produce such statements within seven days of defense counsel’s receipt of a list of Commonwealth civilian witnesses that the Commonwealth in good faith actually intends to call to testify at trial. . . .”

3 Rule 14 (d) defines the term “statement” as “(1) a writing made by a person having percipient knowledge of relevant facts and which contains such facts, signed or otherwise adopted or approved by such person; or (2) a stenographic, mechanical, electrical, or other recording, or transcription thereof, which is a substantially verbatim recital of an oral declaration and which is recorded contemporaneously with the making of the oral declaration.”

4 Rule 23 (a) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 893 (1979), defines the term “statement” as “(1) a writing máde by a witness or another and signed or otherwise adopted or approved by such witness; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral declaration made by a witness and which is recorded contemporaneously with the making of the oral declaration; (3) a declaration, however taken or recorded, or a transcription thereof, made by a witness to a grand jury; or (4) those portions of a written report which consist of the verbatim declarations of a witness in matters relating to the case on trial.”

5 The provision relating to work product provides: “This rule does not authorize discovery by a party of those portions of records, reports, correspondence, memoranda, or internal documents of the adverse party which are only the legal research, opinions, theories, or conclusions of the adverse party or his attorney and legal staff, or of statements of a defendant, signed or unsigned, made to the attorney for the defendant or his legal staff.” Mass. R. Crim. P. 14 (a) (5).

6 Rule 3:13-3 (d) (3) and (4) of the New Jersey Rules Governing Criminal Practice provides:

“(d) Discovery by the State. A defendant shall permit the State to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b):

“(3) the names and addresses of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements; [and]

“(4) written statements, if any, including any memoranda reporting or summarizing the oral statements, made by any witnesses whom the State may call as a witness at trial.”

N.J. R. Crim. P. 3:13-3 (d) (3), (4) (West 2005). Under the rule, the State has access to such statements only if the defendant intends to use them at trial. State v. Williams, 80 N.J. 472, 478 (1979).

7 Noting the different language in the New Jersey rule, which we fully recognize and have set forth in note 6, supra, Justice Cordy, in his dissent, takes issue with the statement that mie 14 “broadly parallels” a similar rule in New Jersey. Ignoring that the quoted language (“broadly parallels”) appears in the text of the Reporters’ Notes, Justice Cordy intimates that we alone have drawn this conclusion. He entirely misses the significant point — that subdivision (a) (2) of rule 14 “broadly parallels” the New Jersey rule in substance, thus making the interpretation of the New Jersey rule particularly persuasive. See post at 235 n.4. The fact that the drafters of rule 14 chose different language from that appearing in the New Jersey rule to effectuate its essence does not alter this point.

8 To note the obvious, we are not construing a statute. Justice Cordy’s relianee on the principles stated in Dowell v. Commissioner of Transitional Assistance, 424 Mass. 610 (1997), concerning the construction of statutes, is inappropriate. See post at 236.

9 Rule 16 (b) (2) of the Federal Rules of Criminal Procedure provides:

“(2) Information Not Subject to Disclosure. Except for scientific or medical reports, Rule 16 (b) (1) does not authorize discovery or inspection of:

“(A) reports, memoranda, or other documents made by the defendant, or the defendant’s attorney or agent, during the case’s investigation or defense; or

“(B) a statement made to the defendant, or the defendant’s attorney or agent, by:

“(i) the defendant;

“(ii) a government or defense witness; or

“(iii) a prospective government or defense witness.”

10 In support of his argument, the defendant relied on United States v. Cerro, 775 F.2d 908, 915 (7th Cir. 1985), in which the United States Court of Appeals for the Seventh Circuit stated that a defendant’s Sixth Amendment right of confrontation “would be impaired if he had to give a precis of his cross-examination to the prosecution before trial.” This broad observation has no application to this situation that concerns legitimate pretrial discovery, not a “precis of . . . cross-examination.”