Commonwealth v. Hanright , 465 Mass. 639 ( 2013 )

Spina, J.

The issue in this appeal is whether Mass. R. Crim. P. 14 (b) (2) (B), as amended, 463 Mass. 1501 (2012), permits pretrial discovery of a defendant’s medical and psychiatric records in connection with a rule 14 (b) (2) (B) psychiatric examination. The answer must be yes.

1. Background. A grand jury returned twenty-two indictments against the defendant on various charges, including murder in the first degree and various counts of masked armed robbery. These indictments arose out of a robbery of a jewelry counter at a department store in Woburn during which a police officer was killed. Pursuant to Mass. R. Crim. P. 14 (b) (2), as amended, 442 Mass. 1518 (2004), the defendant notified the Commonwealth that he intends to offer expert testimony concerning his mental state at the time of the alleged crime as part of his defense of a lack of criminal responsibility, and that the expert will rely, in part, on the defendant’s statements as to his mental condition at that time. The Commonwealth moved for a court-ordered psychiatric examination of the defendant pursuant to G. L. c. 123, § 15 (a). In addition, the Commonwealth sought a court order requiring the defendant to disclose the names and addresses of all persons having custody of any of his medical and psychiatric records, and the production of all such treatment records to the court. The Commonwealth’s purpose in seeking the defendant’s medical records is to allow the rule 14 (b) (2) (B) examiner to review them in connection with the independent examination of the defendant’s criminal responsibility. The motion judge allowed the portion of the Commonwealth’s motion seeking an independent psychiatric examination of the defendant, but denied the portion of the motion requesting disclosure of the custodians and production of the defendant’s medical and psychiatric records. The Commonwealth then filed a petition in the county court pursuant to G. L. c. 211, § 3, seeking relief from the partial denial of its discovery motion, and a single justice reserved and reported the case to the full court, pursuant to Mass. R. Civ. R 64 (a), as amended, 423 Mass. 1410 (1996).

2. Rule 14 (b) (2) (B). As our task is to interpret a rule of criminal procedure, we begin with the plain language of the rule. Massachusetts Rule of Criminal Procedure 14 (b) (2) (A), as amended, 463 Mass. 1501 (2012),¹ requires a defendant to notify the Commonwealth if he or she “intends at trial to raise as an issue his or her mental condition at the time of the alleged crime, or . . . intends to introduce expert testimony on [his or her] mental condition at any stage of the proceeding.” Rule 14 (b) (2) (B) states:

“(B) If the notice of the defendant or subsequent inquiry by the judge or developments in the case indicate that statements of the defendant as to his or her mental condition will be relied upon by a defendant’s expert witness, the court, on its own motion or on motion of the prosecutor, may order the defendant to submit to an examination consistent with the provisions of the General Laws and subject to the following terms and conditions:

“(i) The examination shall include such physical, psychiatric, and psychological tests as the examiner deems necessary to form an opinion as to the mental condition of the defendant at the relevant time. . . .” (Emphases added.)

The rule outlines additional procedural details concerning the requisite reports of both the defendant’s and Commonwealth’s expert witnesses. In relevant part, the rule as amended requires that “[t]he reports of both parties’ experts must include a written summary of the expert’s expected testimony that fully describes: the defendant’s history and present symptoms . . . [and] the bases and reasons for [the expert’s] opinions” (emphasis added). Mass. R. Crim. P. 14 (b) (2) (B) (iii).

The motion judge denied the portion of the Commonwealth’s motion that sought access to the defendant’s treatment records because he read rule 14 (b) (2) (B)’s “examination” allowance narrowly as precluding pretrial discovery of the defendant’s medical and psychiatric records. He found support for his interpretation in this court’s language in Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 318, 321 (2010) (Sliech-Brodeur), in which we stated, prior to the recent amendments, that “rule 14 (b)(2) exclusively governs pretrial discovery relating to a lack of criminal responsibility defense,” and that “the rule only authorizes a court-ordered psychiatric examination of the defendant by the Commonwealth’s expert, and nothing more.” The Commonwealth’s position, in contrast, is that rule 14 (b) (2) (B) permits pretrial discovery of a defendant’s medical and psychiatric records on behalf of the rule 14 (b) (2) (B) examiner.² “The proper guide to discovery practices should [be] the degree to which discovery will enhance the reliability of factfinding.” Commonwealth v. Durham, 446 Mass. 212, 224, cert, denied, 549 U.S. 855 (2006), quoting Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth? A Progress Report, 68 Wash. U. L.Q. 1, 2-3, 8 (1990). See Commonwealth v. Paszko, 391 Mass. 164, 187-188 (1984) (rule 14 “favors liberal discovery”). “[W]e are the final arbiter of what the rule means and permits,” Commonwealth v. Durham, supra at 221, and we conclude that the Commonwealth has the stronger position.

Rule 14 (b) (2) (B) outlines the circumstances under which a defendant may be required to submit to an “examination.” Because the express language of mle 14 (b) (2) (B) allows for an “examination,” so too does it allow for all that is inherent in a psychiatric examination. As a general matter, review of treatment records is an important aspect of a comprehensive and meaningful psychiatric examination.³ See American Psychiatric Association, Practice Guideline for the Psychiatric Evaluation of Adults 9, 14 (2d ed. 2010); D. Shuman, Psychiatric and Psychological Evidence § 2:21, at 2-43 (3d ed. 2005 & Supp. 2012). We find further support for our conclusion that the rule permits discovery of the defendant’s treatment records on behalf of the rule 14 (b) (2) (B) examiner in the language of rule 14 (b) (2) (B) (iii), as amended in 2012, which states that “[t]he reports of both parties’ experts must include a written summary of the expert’s expected testimony that fully describes: the defendant’s history and present symptoms” (emphases added). A rule 14 (b) (2) (B) examiner can only fully describe the defendant’s history if permitted access to the defendant’s treatment records. Because review of treatment records is necessary, both to conduct a meaningful examination and to produce the requisite report, discovery of a defendant’s treatment records is permitted pursuant to rule 14 (b) (2) (B).

The ability of the rule 14 (b) (2) (B) examiner to access a defendant’s medical and psychiatric records furthers rule 14 (b) (2) (B)’s truth-seeking function. See Blaisdell v. Commonwealth, 372 Mass. 753, 766 (1977). An examiner who has reviewed a defendant’s treatment records is in the best position to produce a report that describes the defendant’s mental health status at the time of the alleged offense with the greatest accuracy. See Commonwealth v. Diaz, 431 Mass. 822, 828 (2000).

Moreover, an examiner’s access to a defendant’s treatment records typically is necessary because patients often are “poor historians” of even their own medical history. Commonwealth v. Alvarez, 433 Mass. 93, 94, 103 (2000). Without the defendant’s treatment records, the rule 14 (b) (2) (B) examination will be based only on the defendant’s word, without any means of verification. D. Shuman, Psychiatric and Psychological Evidence, supra. Thus, interpreting rule 14 (b) (2) (B) as allowing the examiner access to the defendant’s medical records advances our interest in “preventing] fraudulent mental [health] defenses.” Commonwealth v. Ostrander, 441 Mass. 344, 354, cert, denied, 543 U.S. 867 (2004), quoting Schneider v. Lynaugh, 835 F.2d 570, 576 (5th Cir.), cert, denied, 488 U.S. 831 (1988). It also advances the fairness objective that underlies the Commonwealth’s reciprocal ability to evaluate the defendant’s mental health pursuant to rule 14 (b) (2) (B), particularly where the defendant’s expert has access to the defendant’s medical records. See Commonwealth v. Alvarez, supra at 100-104 & n.9; Reporters’ Notes to Mass. R. Crim. P. 14, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1522 (LexisNexis 2012) (importance of “giving the prosecution an opportunity to obtain equivalent access for its expert”). It is only fair that the Commonwealth have the opportunity to rebut the defendant’s mental health evidence using the same resources that should be made available to defendant’s medical expert.⁴ See Blaisdell v. Commonwealth, supra, citing United States v. Baird, 414 F.2d 700 (2d Cir. 1969), cert, denied, 396 U.S. 1005 (1970). A system in which only the defendant’s expert may use the defendant’s medical and psychiatric records to form an opinion regarding the defendant’s mental health “would have a ‘distorting effect on the fact finder’s role,’ ” and would “undermine ‘society’s conduct of a fair inquiry.’ ” Commonwealth v. Ostrander, supra, quoting Commonwealth v. Wayne W., 414 Mass. 218, 231 (1993). See Commonwealth v. Poissant, 443 Mass. 558, 565 (2005).

This case is distinguishable from Sliech-Brodeur, supra at 319 n.27, 323 n.31, where we concluded that a defendant was not obliged to provide the Commonwealth with notes and materials of the defendant’s own psychiatric expert pursuant to rule 14 (b) (2) (B). Unlike access to materials generated contemporaneously by the defense, allowing a rule 14 (b) (2) (B) examiner access to a defendant’s treatment records is part and parcel of a rule 14 (b) (2) (B) examination. Our conclusion that rule 14 (b) (2) (B) permits discovery of materials that are available to, as opposed to generated by, the defense is consistent with the general precept that rule 14 (b) (2) (B) permits discovery of “helpful medical and psychiatric information at any point in the proceedings pertaining to the trial issue of the defendant’s criminal responsibility,” provided a defendant’s rights are protected. Blaisdell v. Commonwealth, supra at 756-757.

3. Privilege. The defendant argues that requiring him to disclose his treatment history violates his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The motion judge determined that disclosure of the substance of the defendant’s treatment records “does not seem to implicate the privilege against govemmentally compelled self-incrimination.” He suggested, however, that the psychotherapist-patient privilege of G. L. c. 233, § 20B, may insulate the defendant’s psychiatric records from discovery.

The particulars of any of the defendant’s treatment records are unknown at this stage of the litigation. Nevertheless, even assuming that pretrial discovery of a defendant’s treatment provider information or records implicates the privilege against self-incrimination,⁵ the defendant waived this constitutional privilege when he gave notice of his intent to offer expert testimony regarding his mental state, based in part on his statements, to the extent that the court could then order him to submit to a rule 14 (b) (2) (B) examination, including all that a comprehensive examination entails. See Blaisdell v. Commonwealth, supra 766-767. See also Commonwealth v. Callahan, 386 Mass. 784, 789 (1982), S.C., 401 Mass. 627 (1988) (limited waiver); Commonwealth v. Goulet, 374 Mass. 404, 411 n.4 (1978) (implied waiver). Disclosure of treatment records to the rule 14 (b) (2) (B) examiner falls within the scope of the limited waiver effectuated when a defendant is required to submit to a rule 14 (b) (2) (B) examination. See Commonwealth v. Durham, 446 Mass. 212, 228 (2006), quoting State v. Angeleri, 51 N.J. 382, 385, cert, denied, 393 U.S. 951 (1968) (“[njothing 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’ ”).

Likewise, the defendant waived any statutory privilege in his mental health treatment records to the extent that he may be obliged to submit to the same court-ordered examination pursuant to rule 14 (b) (2) (B).⁶ See Commonwealth v. Connors, 447 Mass. 313, 319 & n.10 (2006). Not only does G. L. c. 233, § 20B, expressly contemplate waiver, but, in Commonwealth v. Connors, supra, we rejected “attempts to distinguish the waiver of the constitutional right against self-incrimination from the waiver of the ‘patient-psychotherapist privilege’ afforded by G. L. c. 233, § 20B.” Id. at 319 n.10. There, we stated that “[t]he defendant waived both privileges when he spoke to his own expert and attempted to have his own statements introduced at trial” (emphasis supplied), id., and reasoned that “the defendant cannot selectively invoke [the psychotherapist-patient] privilege as to the court-appointed experts, and not as to his own expert.” Id. at 319. Therefore, there is no statutory impediment to the rule 14 (b) (2) (B) examiner’s review of a defendant’s mental health treatment records.

Regardless, pursuant to rule 14 (b) (2) (B), the defendant’s treatment provider information and records will, initially, be made available to the rule 14 (b) (2) (B) examiner only. Absent the defendant’s consent, information regarding the defendant’s treatment history will not be revealed to the prosecution prior to the mutual exchange of the expert’s reports.⁷ See rule 14 (b) (2) (B) (ii), (iii). Such mutual exchange occurs no later than when the defendant expresses a “clear intent to raise as an issue his or her mental condition, and the judge is satisfied that (1) the defendant intends to testify, or (2) the defendant intends to offer expert testimony based in whole or in part on statements made by the defendant as to his or her mental condition at the relevant time.” Rule 14 (b) (2) (B) (iii). See Sliech-Brodeur, supra at 338 (Gants, J., dissenting). Thereafter, the Commonwealth may only use information regarding the defendant’s treatment history as part of its rebuttal against the defendant’s claim of impaired mental health, which necessarily occurs after the defendant has raised his mental condition at trial. Moreover, the rules of evidence and G. L. c. 233, § 23B, which states that “no statement made by a defendant therein subjected to psychiatric examination . . . shall be admissible in evidence against him on any issue other than that of his mental condition, nor shall it be admissible in evidence against him on that issue if such statement constitutes a confession of guilt of the crime charged,” provide additional protection from the prosecution’s misuse at trial of any information regarding the defendant’s treatment history.

4. Procedure. Here, the Commonwealth has requested disclosure of all persons having custody of any of the defendant’s medical and psychiatric records, and production of all such treatment records to the court, without limitation as to date or type of treatment. Although we recognize the broad scope of this request, we likewise recognize the many factors that may bear on a defendant’s mental condition.* *****⁸ We are also concerned that a defendant may “cherry pick” from amongst his or her treatment records, disclosing the existence of documents that advance a mental impairment claim, and secreting those that do not. See Sliech-Brodeur, supra at 332, 346 (Gants, J., dissenting). Cf. Commonwealth v. Alvarez, 433 Mass. 93, 100-104 (2000). In light of these considerations, we ask this court’s standing advisory committee on the rules of criminal procedure (committee) to consider the scope of requisite disclosure and to propose a mechanism whereby both the defense expert and the rule 14 (b) (2) (B) examiner have an equal opportunity to access the records they deem necessary to conduct a psychiatric evaluation, while preserving a defendant’s ability to object to such disclosure.⁹

Until the committee has the opportunity to consider these issues, we follow a “same records” approach whereby a defendant is to provide the rale 14 (b) (2) (B) examiner with the same records provided to or considered by the defense expert.¹⁰ A rale 14 (b) (2) (B) examiner may also ask a defendant directly for the names, addresses, dates of treatment, and areas of specialized practice of all treatment providers, and a defendant should answer to the best of his or her ability. Should the rale 14 (b) (2) examiner discover, either from speaking with the defendant or reviewing the treatment records provided, that records necessary to conduct a psychiatric evaluation have not been disclosed, the examiner may request the clerk of court to subpoena such records. G. L. c. Ill, § 70; 45 C.F.R. § 164.512(e) (2012) (Health Insurance Portability and Accountability Act of 1996 allows disclosure pursuant to court order). Upon receipt of any subpoenaed records, the clerk shall send a copy to both the rule 14 (b) (2) (B) examiner and the defense examiner for use in connection with their respective examinations, and shall keep a set of the records under seal. Defense counsel may also access the defendant’s treatment records, and have the opportunity to move to exclude any material he or she believes to be objectionable.

5. Conclusion. We reverse the motion judge’s order in so far as it denies the Commonwealth’s motion for access to the defendant’s medical and psychiatric records on behalf of the rule 14 (b) (2) (B) examiner, and remand the case for further proceedings consistent with this opinion.

So ordered.

1 When the defendant submitted his notice of intent to offer expert testimony regarding his mental state and the motion judge ruled on the Commonwealth’s responsive motion, Mass. R. Crim. P. 14 (b) (2), as appearing in 442 Mass. 1518 (2004), was in effect. In the time between the motion judge’s denial of the Commonwealth’s motion and the single justice’s decision to reserve and report this case to the full court, Rule 14 was amended, and the amendments became effective. Mass. R. Crim. R 14, as amended, 463 Mass. 1501 (2012). Because the parties proceed under the assumption that the current version of rule 14 applies to this case, we do the same. Nevertheless, our disposition would be the same were we to apply the previous version of rule 14.

2 Although the Commonwealth sought both provider information and substantive records, as a technical matter, it only seeks disclosure of provider information from the defendant. Of course, the Commonwealth is not interested in the list of the defendant’s treatment providers for its own sake, but as a means of obtaining the defendant’s medical and psychiatric records from his clinicians. For this reason, we focus mainly on the substantive disclosure of the defendant’s treatment records to the rule 14 (b) (2) (B) examiner.

3 Moreover, inherent in the requirement of rule 14 (b) (2) (B) that the defendant “submit to an examination,” should the court so order, is the obligation that the defendant cooperate with the rule 14 (b) (2) (B) examiner to the same extent as with the defense expert, including disclosing information about his treatment history (emphasis added). See rule 14 (b) (2) (B) (iv). Requiring such disclosure advances our interests in speedy and efficient trial preparation, given that healthcare information is generally within the defendant’s knowledge and control. See Blaisdell v. Commonwealth, 372 Mass. 753, 766-767 (1977).

4 The defendant objects to the rule 14 (b) (2) (B) examiner’s discovery of treatment records that defense counsel did not intend to provide to his own defense expert. However, we have said that defense counsel renders ineffective assistance in failing to provide relevant medical records to the defense expert. Commonwealth v. Alvarez, 433 Mass. 93, 100-104 (2000). Thus, we expect that defense counsel will provide the defense expert with the records necessary to conduct a meaningful psychiatric evaluation. Should defense counsel fail in his or her duty to provide the defense examiner with such records, the appropriate response should not be to similarly handicap the Commonwealth’s expert.

5 Compare, e.g., Commonwealth v. Trapp, 396 Mass. 202, 212 (1985), S.C., 423 Mass. 356, cert, denied, 519 U.S. 1045 (1996) (rejecting claim that pretrial discovery orders requiring defendant to disclose nontestimonial, medical and psychological tests implicated Fifth Amendment or art. 12), and Commonwealth v. Brennan, 386 Mass. 772, 779-783 (1982), with Commonwealth v. Hughes, 380 Mass. 583, 592 & n.ll, cert, denied, 449 U.S. 900 (1980) (order requiring defendant to produce gun effectively compels testimony as to its existence); and Jones v. Superior Court of Nevada County, 58 Cal. 2d 56, 60 (1962) (privilege against self-incrimination implicated where prosecution “seeks the benefit of [defendant’s] knowledge of . . . the existence of [treatment records] for the purpose of preparing its case against him”).

6 Although confidential, see H.J. Alperin, Summary of Basic Law § 10.77, at 231, 233 (4th ed. 2006), medical records (as opposed to psychiatric records) are not statutorily privileged. See Bratt v. International Business Machs. Corp., 392 Mass. 508, 522 n.22 (1984) (no physician-patient privilege). Moreover, the psychotherapist-patient privilege “does not protect the existence of the fact of a hospital admission, the dates of hospitalization or even the purpose of the admission.” Commonwealth v. Clancy, 402 Mass. 664, 667 (1988). The privilege applies only to “communications.” See G. L. c. 233, § 20B; Commonwealth v. Seabrooks, 433 Mass. 439, 448 n.8 (2001) (same).

7 The defendant does not object to the prosecution’s discovery of his treatment history on the release of the experts’ reports.

8 r example, medical records concerning a defendant’s physical condition may prove highly relevant to the issue whether a defendant suffered from impaired mental health at the time of an alleged offense. See Commonwealth v. Alvarez, supra at 101. See also M.G. Perlin & D. Cooper, 2 Massachusetts Proof of Cases § 36:6, at 45 (2012 ed.) (“The whole conduct of the defendant from childhood, including evidence of the defendant’s physical condition, has been admitted to prove insanity at the time of committing the crime”).

9 We expect that neither examiner will need to review records that are irrelevant to the issue of the defendant’s mental condition at the time of the commission of the alleged offense.

10 At the least, such disclosure should include the psychiatric records the defendant referenced in his journal.