Commonwealth v. Sliech-Brodeur

Botsford, J.

A jury found the defendant guilty of murder in the first degree of Joseph Brodeur, her husband, on theories of deliberate premeditation and extreme atrocity or cruelty. The events giving rise to the charge occurred on July 28, 2004. At trial, the defendant argued that she was not criminally responsible for her husband’s death. The defendant appeals from her conviction, challenging, inter alia, the denial of her motion to suppress certain evidence found in a search of her home; the scope of pretrial discovery orders, granted on motion of the Commonwealth, that concerned her defense of lack of criminal responsibility; and a number of rulings by the trial judge. We conclude that the defendant’s motion to suppress was properly denied, but because we further conclude that the discovery orders violated Mass. R. Crim. P. 14 (b) (2), as appearing in 442 Mass. 1518 (2004), and prejudiced the defendant, we reverse her conviction. We consider briefly additional issues raised by the defendant that may arise at a retrial.¹

1. Background. We summarize the facts that the jury could have found based on the evidence introduced at trial.

The victim and the defendant were married in 1994, when he was sixty years old and she was forty-nine. Both had been married previously and both had children from their prior marriages; they had no children together. The couple lived at 56 Bear Hole Road in West Springfield but spent part of the year, from October to May, in Florida.

Although some of their friends described the couple as having a “wonderful time” together and a “good relationship,” they were not without marital difficulties. Financial and sexual issues strained the marriage. The victim gave the defendant monthly invoices for her share of each household expense, broken down to the penny, despite the fact that the defendant did not like and complained about the arrangement. Each year in or around April, the victim and the defendant argued about the payment of taxes. In March of 2004, approximately four months before the victim was killed, the defendant reported to Florida police that her pocketbook had been stolen. However, after the victim went to the police the following month claiming that the pocketbook was never missing and asserting that the defendant had filed a false insurance claim, the defendant came to believe that the victim had taken and hidden the pocketbook. Also in March, 2004, while the defendant and the victim were still in Florida, the victim made arrangements with his daughter and one of his friends secretly to move a file cabinet that contained the couple’s financial documents out of their Bear Hole Road home and into the basement of his daughter’s house. In June, 2004, the victim threatened the defendant that he was going to subpoena the defendant’s bank records and accused her of converting certificates of deposit to cash.²

In February and March, 2004, the victim, while in Florida, separately telephoned his daughter and his friend and indicated that he and the defendant were going to divorce. Nevertheless, in May, 2004, the couple returned from Florida and resumed living together at their West Springfield home. Despite having independent financial resources and being unhappy, the defendant refused to move out of the home because she wanted to protect a claim to her half of the property. On July 26, two days before the victim’s death, the victim stated that he was going to continue with divorce proceedings.

On July 28, 2004, between 9 and 9:30 p.m., the defendant telephoned her son, John Sliech, who was with his girl friend, Kathy Gilberti, at his home in Westfield; the defendant stated there was a “problem.” Sliech and Gilberti left immediately for the defendant’s home at Bear Hole Road. Once they arrived and Sliech went into the house, he telephoned the police. At approximately 9:45 p.m., the first police officer arrived in response to the call, and observed Gilberti consoling the defendant, who was upset and mumbling, on the couch. The officer heard the defendant say, “He hit me.” Another officer, Sergeant Thomas Wilkinson, followed a blood trail on the family room carpet into the dining room, and observed the victim lying under a portion of the dining room table, covered with a sheet, with his feet protruding. The victim was wearing only a blood-soaked T-shirt. Lividity³ was apparent in his jaw and feet. The victim had thirty-four distinct knife wounds to his head, neck, chest, and back and no defensive wounds. He died from a loss of blood from three or four of the wounds, one of which went through his chest and penetrated his left lung and heart.

After observing the victim’s body, Sergeant Wilkinson was told by Gilberti that the defendant may have overdosed on medication, and he so informed the ambulance personnel. The defendant reported to the paramedic who was part of the ambulance team that she had a history of depression and fibromyalgia and that she had ingested twenty-five Klonopin pills; she stated she wanted to kill herself. During her conversation with the paramedic, the defendant was able to respond to questions appropriately and coherently, and she was at the highest level for all functions tested, including alertness, pupil dilation, eye opening, and verbal and motor responsiveness.

The defendant was transported by ambulance to Baystate Medical Center. On the way to the hospital, and again at the hospital, the defendant indicated that she took the medication because “she wanted to kill herself.” The following day, July 29, the defendant was released from the hospital.

A subsequent search of the defendant’s Bear Hole Road home by the police revealed, with respect to the master bedroom, a large amount of blood on the bed, the bed sheets pushed down, a broken lamp pushed out of its original place, and a “balled up” comforter and a pillow with bloodstains. Blood, bloodstains, and blood spatter were observed in the master bedroom, around the front door of the house, on the landing outside the front door, and in the dining room where the victim’s body was found. The police found a bloody knife and small crowbar on a towel in the bathroom, near to which lay a woman’s watch and two rings. One of the rings tested positive for blood, as did the sink faucet, the sink drain, and the bathtub faucet.

During their search, the officers also discovered and seized from the kitchen counter a letter written on lined paper with the name “Howard Safford”⁴ at the top; twenty-two small, yellow “notes” affixed to items throughout the house, each bearing the name of one of the defendant’s sons and her signature; and a looseleaf notebook containing mementos of the victim’s granddaughter, who had died of leukemia. This last item contained a note dated six days before the murder addressed to the victim’s daughter and son-in-law; it read, “I kept these. Now they are yours. Love, Joann.”

After the Commonwealth rested at the end of its direct case, the defendant presented evidence on the issue of her criminal responsibility on the day of the homicide. Dr. Daniel Brown, a licensed forensic psychologist retained by the defendant as an expert witness, testified. Dr. Brown had spent a total of twenty-six and one-half hours interviewing the defendant and conducting a series of psychological tests, including the Minnesota Multiphasic Personality Inventory (MMPI), and a series of tests to assess the accuracy and validity of the defendant’s self-reported symptoms and memory loss. Based on his interviews and the results of the testing, Dr. Brown determined the defendant was generally an overcontrolled person, had a dependent personality, and felt very much controlled by the victim. She compartmentalized her anger so that she would not feel or experience it, but in response to the stressful events that occurred leading up to and on July 28, 2004, the defendant “lost it.” In particular, she had a substantial loss of awareness; she could neither see nor hear; and she was not cognizant of what was taking place. In Dr. Brown’s opinion, on July 28, 2004, the defendant suffered from five psychiatric disorders he characterized as types of mental diseases or defects: major depressive disorder, posttraumatic stress disorder, mixed personality disorder with dependent features, dissociative amnesia, and dissociative disorder not otherwise specified. He concluded that, as a result of these mental diseases or defects, the defendant could not appreciate the wrongfulness of her conduct or conform her conduct to the requirements of the law.

In rebuttal, the Commonwealth called Dr. Martin Kelly, a forensic psychiatrist, who had been appointed at the Commonwealth’s request to perform an evaluation of the defendant pursuant to rule 14 (b) (2) (B) and who interviewed the defendant for a total of two hours and forty-five minutes. Dr. Kelly opined that the defendant had no history of a mental disease or defect and did not suffer from one on July 28, 2004. She therefore had, in his opinion, the substantial capacity to appreciate the wrongfulness of her conduct, could conform her conduct to the requirements of the law on that date, and did not lack criminal responsibility.⁵

2. Discussion, a. Motion to suppress. The defendant moved before trial to suppress certain items of physical evidence, including the letter found on lined paper in the kitchen of the Bear Hole Road residence and the twenty-two small, yellow notes found in its garage, cellar, and office. After an evidentiary hearing, a Superior Court judge (first motion judge) denied the motion on the grounds that all the challenged documents were in plain view of the officers, who were conducting a valid search of the residence pursuant to a warrant.⁶ The defendant now challenges that ruling.⁷ There was no error.

“In reviewing a ruling on a motion to suppress evidence, we accept the judge’s subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing.” Commonwealth v. Contos, 435 Mass. 19, 32 (2001), quoting Commonwealth v. Eckert, 431 Mass. 591, 592-593 (2000). However, we review independently the motion judge’s application of constitutional principles to the facts found. Commonwealth v. Contos, supra.

The search warrant issued for the Bear Hole Road residence did not expressly authorize the search or seizure of documents. As a consequence, the seizure of the documents in question is presumptively unreasonable, and the Commonwealth bears the burden of demonstrating that an exception to the warrant requirement applies. Commonwealth v. Balicki, 436 Mass. 1, 8 (2002).

The plain view doctrine is an exception to the warrant requirement. Id. See Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971); Commonwealth v. Santana, 420 Mass. 205, 211 (1995), and cases cited. Under the Fourth Amendment to the United States Constitution, the plain view doctrine applies (1) where the police are lawfully in a position to view the object; (2) where the police have a lawful right of access to the object; and (3) in cases concerning (a) contraband, weapons, or other items illegally possessed, where the incriminating character of the object is immediately apparent, see Horton v. California, 496 U.S. 128, 136 (1990); Commonwealth v. D‘Amour, 428 Mass. 725, 731 (1999) (D’Amour)-, or (b) other types of evidence (“mere evidence”), where the particular evidence is plausibly related to criminal activity of which the police are already aware. See, e.g., Commonwealth v. Accaputo, 380 Mass. 435, 447-448 (1980); Commonwealth v. Bond, 375 Mass. 201, 206 (1978). Article 14 of the Massachusetts Declaration of Rights adds the requirement that the police come across the object inadvertently. See Commonwealth v. Balicki, 436 Mass, at 9-10 (declining to abandon inadvertence requirement under art. 14).

The defendant acknowledges that the police officers were lawfully in a position to view both the letter and the twenty-two notes. See D Amour, 428 Mass, at 731 (only requirement to justify presence of police in defendant’s home is valid search warrant). She disputes, however, that the officers had a lawful right of access to these items. Police officers generally have such a right if the “terms of the warrant entitle [the officers] to search where the objectfs] [are] found.” Id. Here, the first motion judge determined that the search warrant authorized the videotaping or photographing of the “crime scene,” and that the entire interior of the house constituted the crime scene. He also found that the objects of the search that were described in the warrant ■— such as blood, saliva, hair, fibers, fingerprints, and weapons — could have been found anywhere in the house. For both these reasons, the judge concluded, the police officers had a lawful right of access to the particular areas where the letter and notes were discovered.

On appeal, the defendant does not challenge that conclusion. Rather, she claims that although the officers may have been lawfully in the rooms in which the writings were found, they were not entitled to read the documents for content. In making this claim, the defendant distinguishes D Amour, where this court concluded that the officers were permitted to “examine [a letter] ‘cursorily.’ ” D Amour, 428 Mass, at 731. According to the defendant, the officers in D Amour were permitted to conduct their cursory examination only because the warrant itself authorized the search for and seizure of certain documents, see id. at 728, and the only way the officers could know whether a writing was within the scope of the warrant was to examine the document’s content. However, because the warrant in this case did not cover any writings or documents, the defendant argues that the officers had no reason to give the letter or the notes any examination at all.

We disagree. Although the warrant for the defendant’s home did not authorize the officers to search for or seize documents or writings, it would be unrealistic to require officers to ignore what is immediately in front of them. See, e.g., United States v. Crouch, 648 F.2d 932, 933 (4th Cir.), cert, denied, 454 U.S. 952 (1981) (during search pursuant to warrant that did not authorize search for documents or writings, officers discovered incriminating letters; court attached no significance to “the fact that some cursory reading of the letters was necessary in order to establish their nature”); United States v. Ochs, 595 F.2d 1247, 1257 n.8 (2d Cir.), cert, denied, 444 U.S. 955 (1979) (“A number of courts . . . have upheld without much discussion the seizure of documents during an otherwise valid search as in ‘plain view’ notwithstanding the fact that some perusal, generally fairly brief, of the documents was clearly necessary in order for the police to perceive the relevance of the document to crime”). See also 2 W.R. LaFave, Search and Seizure § 4.11(d), at 793 (4th ed. 2004).

The defendant further argues that the plain view doctrine was inapplicable here because the letter and the notes did not have an immediately apparent incriminating character, the third requirement of the doctrine. See D’Amour, 428 Mass, at 730. Trooper Frydryk, who was in charge of videotaping the crime scene, was the first to see the letter on the kitchen counter. He was able to view the phrases “Howard Safford,” “Joe has,” “verbally and emotionally,” “divorce,” and “take everything.” The trooper knew S afford to be an assistant district attorney, knew the victim had died in the house, and knew the victim’s first name was Joseph (or Joe). Additionally, the officers executing the search warrant for 56 Bear Hole Road knew that the victim and the defendant were in the midst of an impending divorce. While we do not agree with the motion judge that the incriminating nature of the letter was “immediately apparent,” in light of what was known at the time, the trooper could permissibly conclude that the letter was “plausibly related ... to criminal activity of which [he was] already aware.” Commonwealth v. Bond, 375 Mass. 201, 206 (1978) (“[m]ere evidence” may be seized under plain view doctrine only if police recognize plausible connection to criminal activity known to them). See D’Amour, 428 Mass, at 731; Commonwealth v. Accaputo, 380 Mass. 435, 447-448 (1980).⁸

With respect to the notes, twenty of the twenty-two were found affixed to specific items of property throughout the house.⁹ Each note mentioned the name of either of the defendant’s sons and almost all of them also contained the defendant’s signature. The motion judge determined that the incriminating nature of the notes was immediately apparent because they appeared to reflect bequests of the property to which they were attached. See Commonwealth v. Goldenberg, 315 Mass. 26, 33 (1943) (“An attempt to commit suicide . . . may indicate the efforts of a guilty person to avoid punishment for his crime”). Given the large quantity of notes and the fact that they were found in various rooms, recognizable as bequests, and signed by the defendant who at the time of the search had recently been taken to the hospital because an overdose of Klonopin, we agree.

The defendant further maintains that the seizure of the letter and notes cannot be justified under the plain view doctrine because Trooper Frydryk and his fellow officers did not discover the writings inadvertently. For a discovery to be inadvertent, the “police [must] lack[] probable cause before entering the room to believe the items would be there.” D Amour, supra at 732, quoting Commonwealth v. Cefalo, 381 Mass. 319, 331 (1980). Detective Sergeant Harlow, who had assumed control of the crime scene and had performed a protective sweep of the Bear Hole Road house before the issuance of the search warrant, testified that he did not see the letter or the notes during his initial walk-through of the house and did not anticipate finding these or any writings. The motion judge credited this testimony and concluded that the officers did not ¡recall seeing the letter or the notes in the “chaotic situation” they confronted. We have no reason to disagree with the judge’s finding.

In sum, the record supports the conclusion of the motion judge that for both the defendant’s letter and the notes, each of the requirements of the plain view doctrine was met. The judge properly denied the defendant’s motion to suppress this evidence.

b. Discovery orders. The defendant objects to various discovery orders that compelled, prior to trial, the disclosure of many pages of notes, reports, and statements generated by Dr. Brown, her expert witness, to the Commonwealth’s selected psychiatric examiner, Dr. Kelly and, later, to the prosecution. We first summarize the procedural history of these discovery orders to provide necessary context.

(i) On December 5, 2005, the defendant filed a written notice of her intent to present a defense of lack of criminal responsibility pursuant to rule 14 (b) (2) (A)¹⁰; the notice indicated that Dr. Brown would rely on statements made by the defendant regarding her mental condition at the time of the alleged crime. See Mass. R. Crim. R 14 (b) (2) (A) (ii) and (iii). In response, the Commonwealth moved, unopposed, for an independent examination by Dr. Kelly. Mass. R. Crim. R 14 (b) (2) (B). On the same day that the Commonwealth filed this motion, December 16, 2005, the Commonwealth also moved to compel the defendant to produce, as part of pretrial discovery, the following items:

“l.A resume or curriculum vitae of Dr. Daniel Brown.

“2. Copies of all documents of whatever kind that were reviewed by or provided to Dr. Daniel Brown, relating to the defendant.

“2 |>zc]. Copies of all reports or correspondence by Dr. Daniel Brown, relating to the defendant.

“3. Copies of all medical or psychiatric examinations, tests or evaluations that have been administered to the defendant, together with copies of all test materials, including answers, scoring materials and notes of the examiner.

“4. If not contained within the materials previously requested, a summary of all statements of the defendant made to Dr. Daniel Brown, regardless of whether or not they were relied upon by Dr. Brown in reaching any conclusion or opinion regarding the defendant’s mental state.

“5. If not contained within the materials previously requested, a summary of the expected testimony of Dr. Daniel Brown, including any opinion testimony that the defendant seeks to introduce, together with the basis for such opinion.”

After a hearing, and over the defendant’s objection, on December 16, 2005, a judge in the Superior Court (second motion judge) allowed the Commonwealth’s motion with respect to three of the requested categories: Dr. Brown’s resume or curriculum vitae; “copies of all reports or correspondence by Dr. Daniel Brown relating to the defendant”; and “copies of all medical or psychiatric examinations, tests or evaluations that have been administered to the defendant, together with copies of all test materials, including answers, scoring materials and notes of the examiner.” The remaining requests were denied without prejudice.¹¹

The defendant filed a petition in the county court under G. L. c. 211, § 3, for relief from this discovery order. On January 19, 2006, a single justice of this court denied the request.¹² The Commonwealth then moved in the Superior Court to compel compliance with the discovery order, and on January 24, 2006, a third Superior Court judge allowed the motion. The defendant again sought relief from the single justice, requesting a stay of the December 16 discovery order, as clarified (see note 11, supra), and the January 24 compliance order. The single justice denied the stay request on January 26, 2006, but modified his original order to require that (1) the materials previously ordered produced be given to the Commonwealth’s expert, Dr. Kelly; and (2) Dr. Kelly not be permitted to “share any statements of [the defendant] with the prosecution except upon further order of the Superior Court.”¹³ Also on January 26, 2006, Dr. Kelly examined the defendant.

Following the single justice’s denial of the motion to stay, the defendant complied with the pretrial discovery orders (see note 13, supra), and sent Dr. Kelly a package of over 200 pages of materials generated by Dr. Brown in connection with his interviews and testing of the defendant (materials, or Dr. Brown’s materials).¹⁴ The materials contained nine single-spaced typed pages of notes documenting the defendant’s statements to Dr. Brown, including a section of approximately four pages with the heading, “Joann Brodeur’s Memory for the 7/28/04 Incident (constructed from several free recall attempts)”; notes taken by Dr. Brown during his various interviews of the defendant; and all of her psychological test answers and results.¹⁵ The Corn-monwealth subsequently moved to compel production of a synopsis of Dr. Brown’s ultimate opinion, which the trial judge denied after hearing on February 8, 2006, because Dr. Kelly’s report, see Mass. R. Crim. R 14 (b) (2) (B) (iii),¹⁶ had not yet been filed with the court and was not available to the defendant.

Dr. Kelly filed his written report with the court on February 13, 2006, the first day of trial. In that report, Dr. Kelly stated that he based his opinion concerning the defendant’s mental state in part on his review of various items submitted by Dr. Brown, including “a type-written series of pages entitled Joann Sliech-Brodeur’s alleged memory of incident, re-constructed from several free recall attempts, hand-written materials probably from Dr. Brown, which appear to be interview notes of several sessions,” and “review of extensive psychological testing . . . .” After determining that the report itself did not contain privileged material, the judge released it to both parties. However, on the following day, February 14, the judge concluded that Dr. Kelly’s report did not conform to the requirements of rule 14 (b) (2) (B) (iii) because it did not contain his findings “including specific statements of the basis thereof, as to the mental condition of the defendant at the time the alleged offense was committed,” and he ordered Dr. Kelly to supplement his original report. At the same time, after noting that the defendant did not object to a reciprocal order, the judge ordered Dr. Brown to file with the court a report “stating his findings as to the defendant’s mental condition on July 28, [2004], specifically including whether she suffered any mental illness, disease, or defect, and, if so, whether such illness, disease, or defect or combination thereof, resulted in either the lack of substantial capacity to appreciate the wrongfulness or criminality of her conduct or resulted in the lack of substantial capacity to conform her conduct to the requirements of the law.”

In accordance with the judge’s orders, Dr. Kelly filed a supplement to his report, and Dr. Brown also filed a report. On February 16, 2006, following completion of jury empanelment and after the opening statements by counsel, the judge ordered both Dr. Brown’s report and Dr. Kelly’s supplemental report released to the parties. The judge also allowed, over the defendant’s objection, the Commonwealth’s motion for permission to discuss the defendant’s statements with Dr. Kelly, including the statements of the defendant that Dr. Brown had previously turned over to Dr. Kelly in accordance with the pretrial discovery orders.¹⁷ In response, the Commonwealth agreed to provide reciprocal discovery of any statements the defendant had made to Dr. Kelly during his examination of her. Dr. Kelly, however, had made no record of any of the defendant’s statements concerning the day of the victim’s death, and therefore nothing was provided to the defendant.

(ii) The defendant argues that the pretrial discovery orders, compelling the production of her statements and Dr. Brown’s notes and testing materials to Dr. Kelly before trial, violated one or more of the following: the discovery provisions of rule 14 (b) (2); the work product provisions of Mass. R. Crim. R 14 (a) (5), as appearing in 442 Mass. 1518 (2004); the psychotherapist-patient privilege codified at G. L. c. 233, § 20B; and the State and Federal constitutional guarantees of due process and protection against self-incrimination.¹⁸ She raises similar challenges to the order that permitted Dr. Kelly to discuss with the prosecutor the defendant’s statements. We agree with the defendant that the discovery orders permitting Dr. Kelly to receive Dr. Brown’s materials contravened the constitutionally based limitations on discovery related to a defense of lack of criminal responsibility pursuant to rule 14 (b) (2). We do not consider the defendant’s other rule-based and statutory grounds on which she challenges both orders.

By its terms, rule 14 (b) (2) describes the “[s]pecial procedures” that govern pretrial discovery related to the defense of lack of criminal responsibility.¹⁹ As explained in the Reporters’ Notes to Rule 14 (b) (2), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure 1506 (LexisNexis 2008-2009), rule 14 (b) (2) “substantially restate[s] [the procedures] dictated by” this court in Blaisdell v. Commonwealth, 372 Mass. 753 (1977) (Blaisdell), and so we turn to that case.

The specific questions raised in Blaisdell were (1) whether a defendant who sought to interpose an insanity defense could be precluded from presenting his own expert psychiatric testimony at trial if he refused to submit to and cooperate in a psychiatric examination sought by the Commonwealth and ordered by the court pursuant to G. L. c. 123, § 15; and (2) if the defendant did cooperate in the examination, to what extent could the court-appointed psychiatrist’s report or testimony be used at trial. Blaisdell, 372 Mass, at 755 n.l. The court concluded that a psychiatric interview seeking to examine the defendant’s mental state at or about the time of the crime implicates the defendant’s privilege against self-incrimination, because the examination will or may require the defendant to provide, in the form of statements — characterized by the court as “ ‘testimonial’ in every sense of the word,” id. at 760 — inculpatory information about not only the crime itself but also about his mental capacity at the time of the crime. Id. Accordingly, a court-ordered psychiatric examination of a defendant in these circumstances cannot take place unless there is constitutionally adequate immunity available, see id. at 761-764, or, in the absence of immunity, a voluntary waiver by the defendant of his privilege against self-incrimination. Id. at 761, 764, 766. See Commonwealth v. Baldwin, 426 Mass. 105, 109-110 (1997), cert, denied, 525 U.S. 820 (1998).

On the issue of waiver,²⁰ the court set out the established proposition that “[w]hen a defendant in a criminal proceeding voluntarily takes the stand to testify, that act is a waiver of his entire privilege as to any facts material to the crime for which he is being tried.” Blaisdell, 372 Mass, at 764. The court went on, however, to conclude that where a defendant raising an “insanity” defense intends to rely at trial not on his own testimony but on the testimony of an expert witness whose opinion is based on testimonial statements of the defendant pertaining to the defendant’s mental state at or about the time of the commission of the crime, the expected proffer of such expert’s testimony acts as a waiver of the defendant’s privilege to the extent that the defendant may be ordered to submit to an independent psychiatric examination by a psychiatrist of the Commonwealth’s or the court’s choosing.²¹ Id. at 766. The court then considered whether the Commonwealth was obliged to wait until the defendant’s expert actually testified at trial to seek an examination of the defendant, and concluded that in light of the delays and inconvenience to the jurors and all concerned inherent in such an approach, “[t]o require the Commonwealth to wait until such a waiver occurs at trial seems not only inexpedient and unwise but also unnecessary.” Id. at 767. The court therefore proposed a set of procedures that sought to provide the Commonwealth with an ability to obtain reciprocal discovery while respecting the defendant’s self-incrimination privilege.²² See id. at 757, 764, 767-769. See also Commonwealth v. Baldwin, 426 Mass, at 109-110.

(iii) Since 1979, rule 14 (b) (2) has served as the codification of the procedures set out in Blaisdell. Under this rule, when a defendant notifies the court that she intends to offer expert opinion testimony based on her own statements about her mental condition at the time of the crime, a judge may order her to submit to a psychiatric examination on the prosecutor’s motion or the judge’s order. See Mass. R. Crim. R 14 (b) (2) (A) (iii), (b) (2) (B). The appointed examiner must file a written report containing his or her findings about the defendant’s mental condition at the time of the crime. Mass. R. Crim. P. 14 (b) (2) (B) (iii). If the report contains or is based on testimonial statements of the defendant fitting within the scope of the privilege against self-incrimination, the report may not be made available to either party unless the defendant moves to make it available, or “during trial” the defendant raises a defense of lack of criminal responsibility and satisfies the judge that she intends either to testify herself or call an expert witness who will testify based on her statements (emphasis added). Id.

As the procedures just described reflect, the scope of reciprocal discovery that rule 14 prescribes is carefully limited. When a defendant serves notice that she will call an expert witness to testify about her mental condition at the time of the crime based on her testimonial statements, the rule only authorizes a court-ordered psychiatric examination of the defendant by the Commonwealth’s expert,²³ and nothing more.²⁴

The Commonwealth responds that the limitations of rule 14 (b) (2) do not control in this case because discovery of Dr. Brown’s materials was permitted by the automatic discovery provisions set out in Mass. R. Crim. R 14 (a) (1) (A), as appearing in 442 Mass. 1518 (2004), and Mass. R. Crim. R 14 (a) (1) (B), as amended, 444 Mass. 1501 (2005),²⁵ or alternatively under the discretionary discovery provisions of Mass. R. Crim. P. 14 (a) (2), as appearing in 442 Mass. 1518 (2004).²⁶ With respect to automatic discovery, the Commonwealth points in particular to rules 14 (a) (1) (A) (vi) and (vii) — made applicable to the Commonwealth under rule 14 (a) (1) (B) — as authorizing the Commonwealth to obtain discovery of Dr. Brown’s expert report as well as the results of all the psychological tests he performed. The argument fails. Rule 14 (a) (1) (A) (vi), which relates to a defendant’s discovery of the prosecution’s expert opinion evidence, contains an express exclusion for “evidence that pertains to the defendant’s criminal responsibility that is subject to [rule 14 (b) (2)].” See Reporters’ Notes to Rule 14 (a) (1) (A) (vi), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, supra at 1488. Rule 14 (a) (1) (A) (vii), providing for automatic discovery of, inter alia, “reports of physical examinations of any person or of scientific tests or experiments,” is similarly inapplicable; neither Dr. Brown’s examination of the defendant nor his psychological testing fits within the language of the rule. In any event, the dispositive point is that rule 14 (a) — both its automatic and discretionary provisions — does not apply to discovery related to the defense of criminal responsibility, because all procedures and provisions applicable to such discovery are set out in rule 14 (b) (2). See Final Submission and Report to the Supreme Judicial Court by the SJC Standing Advisory Committee on the Criminal Rules (May 9, 2003) (making recommendations for changes to rule 14 [a] and stating their inapplicability to rule 14 [b], which is “self-contained”). See also Commonwealth v. Durham, 446 Mass. 212, 221, cert, denied, 549 U.S. 855 (2006) (court is final arbiter of what rule 14 means and permits).²⁷

The dissent takes a position similar to the Commonwealth’s, but focuses on the original text of rule 14 (a),²⁸ rather than the version of the rule applicable to this case. The dissent argues that a judge could order, under the 1979 version of rule 14 (a) (3), “a defendant to provide the prosecution with the defense psychiatrist’s expert report and statements,” post at 339 — but only after the Commonwealth’s appointed expert furnishes his or her report to the defendant under mle 14 (b) (2) (B) (in), see post at 340; and that when rule 14 (a) was amended in 2004, “[t]here is no reason to believe” the court intended to eliminate a judge’s discretionary authority to order the same type of reciprocal discovery from the defendant. Post at 343. This reading of the original rale 14 (a) (3) and rule 14 (b) (2), however, is contrary to the plain language of each rule. Moreover, if indeed this court intended rule 14 (a) (3) to authorize a judge to issue a discovery order compelling discovery of a defense psychiatrist’s materials on the defendant’s receipt of the Commonwealth’s expert report under rule 14 (b) (2) (B) (iii), it is reasonable to assume the text of each rule would have provided direction to that effect rather than leaving the parties, and lower court judges, blindly to navigate their way back and forth between them. The absence of any cross-reference in either rule supports our conclusion that rule 14 (b) (2), from its inception, was intended to serve as the single, self-contained, and comprehensive rule governing pretrial notice and discovery from expert witnesses concerning a lack of criminal responsibility defense.

Because rule 14 (b) (2) exclusively governs pretrial discovery relating to a lack of criminal responsibility defense, and because nothing in that rule obligates a defendant, before trial, to provide the Commonwealth’s expert (see note 23, supra) with copies of her own expert witness’s notes and other materials, we conclude that Dr. Kelly was not entitled to receive all of Dr. Brown’s 200 pages of materials. In particular, he was not entitled to any of Dr. Brown’s materials before trial and before he had even prepared his own report, and as to much of the materials, probably not at all.²⁹,³⁰ We turn to a consideration of the consequences of the erroneous pretrial discovery orders, to which the defendant’s objections were properly preserved.

(iv) The defendant argues that the error was of constitutional dimension because the pretrial discovery orders violated her right against self-incrimination, and therefore we must review whether the error was harmless beyond a reasonable doubt. See Commonwealth v. Dagraca, 447 Mass. 546, 552-553 (2006). The defendant’s position finds some support in our case law. See Commonwealth v. Diaz, 431 Mass. 822, 830 n.7 (2000) (where defendant requested, and was denied, copy of appointed expert’s report in violation of rule 14 [b] [2] [B] [iii], court applied harmless beyond reasonable doubt standard of review). But it is also the case that our determination of error here is based on the conclusion that the discovery orders violated a rule of criminal procedure — albeit a rule that, as Blaisdell makes plain, has constitutional underpinnings. Ordinarily, a preserved objection to a violation of a rule of criminal procedure would invoke the harmless error standard of review, a standard less favorable to the defendant than the harmless beyond a reasonable doubt standard. See Commonwealth v. Perez, 411 Mass. 249, 260 n.8 (1991), citing Kotteakos v. United States, 328 U.S. 750, 764-765 (1946).

We need not resolve which standard of review applies, because even if we apply the less stringent standard of harmless error, we cannot say that the discovery orders were nonprejudicial and therefore harmless. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). The error went beyond a simple timing issue. Dr. Kelly’s initial report indicates that he not only received and reviewed all the materials ordered produced by Dr. Brown — which included, among other things, Dr. Brown’s notes of the defendant’s statements reflecting her “alleged memory of incident,” and his psychological testing materials — but also relied on those materials, among other sources, to form his own opinion of the defendant’s criminal responsibility. At trial, Dr. Kelly repeated the point. He testified that he received and reviewed all the materials supplied by Dr. Brown before writing his reports in this case; and he identified specifically his review of Dr. Brown’s notes as one of the foundational reasons supporting his opinion that the defendant was criminally responsible.

Where a defendant’s criminal responsibility vel non is the central issue, and where each side produces one expert witness to testify concerning the defendant’s mental state, an expert’s opinion may have extreme significance. Here, the over-all strength of the Commonwealth’s case relied heavily on Dr. Kelly’s testimony that the defendant did not meet the legal standard required for lack of criminal responsibility. However, that opinion and testimony was based on a review of a large quantity of materials that were erroneously provided to Dr. Kelly.³¹ In the circumstances, we cannot say we are “sure that the error [relating to the discovery order that allowed Dr. Kelly to base his expert opinion of criminal responsibility on materials, which included statements of the defendant, that he should not have been able to review] did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass, at 353, quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). Contrast Commonwealth v. Stroyny, 435 Mass. 635, 645-646 (2002) (no prejudice to defendant where court-appointed expert improperly revealed some of defendant’s statements to prosecutor before trial, as statements had been “brought out” by defendant during his direct testimony and prosecutor’s use of statements at trial could have been based on defendant’s own trial testimony rather than earlier disclosure by expert); Commonwealth v. Diaz, 431 Mass, at 830 n.7 (error in denying defendant’s request for copy of appointed expert’s report was harmless beyond reasonable doubt because appointed expert did not testify and his report was neither admitted in evidence nor used by prosecutor).³² Accordingly, reversal of the defendant’s conviction is required.³³

(v) The Commonwealth asks that we clarify what it describes as “confusion” surrounding the sequence of production of mental health experts’ materials. We offer the following.

In the time since we decided Blaisdell and adopted rule 14 (b) (2), there has been a general liberalization of discovery in criminal cases designed to minimize surprise at trial, although discovery is, of course, carefully circumscribed to protect a defendant’s rights. See, e.g., Commonwealth v. Durham, 446 Mass, at 228; Commonwealth v. Paszko, 391 Mass. 164, 187-188 (1984); Commonwealth v. Gilbert, 377 Mass. 887, 893 (1979). See generally Skeels, The Rules of Criminal Procedure and the 30-Year Experiment with Discovery in Criminal Cases, 92 Mass. L. Rev. 142 (2009).

Our application of the Blaisdell procedures in several contexts beyond criminal responsibility, see note 19, supra, reflects our view, in line with the trend of increased discovery in criminal cases, that the Commonwealth should have advance notice of complex mental health issues that the defendant intends to raise as part of his or her defense. See Commonwealth v. Diaz, 431 Mass, at 830, quoting Commonwealth v. Wayne W., 414 Mass. 218, 231 (1993) (reciprocal discovery of psychiatric defenses “promotes ‘society’s conduct of a fair inquiry’ ”). Consistent with this trend toward mutual disclosure, as indicated earlier (see note 30, supra), it is appropriate to modify, for criminal cases commenced after the date of this opinion, the procedures set out in rule 14 (b) (2) to require the defendant’s expert to produce to the prosecution a report that includes the defense expert’s opinion and the bases and reasons for this opinion.³⁴-³⁵ We request this court’s standing advisory committee on the rules of criminal procedure — which currently has under consideration amendments to rule 14 (b) (2) unrelated to this matter — to propose an amendment to rule 14 (b) (2) that will reflect this determination, and that will address the appropriate time that such production should take place.³⁶ Additionally, the standing advisory committee is directed to consider whether, and if so when and in what form, an expert’s psychological testing materials, if any, should be included in this mutual disclosure, cf. Fed. R. Crim. P. 16 (b) (1) (B); and study the appropriateness of including in rule 14 (b) (2) a discretionary discovery provision similar to that in rule 14 (a) (2).

c. Other issues. We consider certain additional issues that may arise at a retrial.

(i) Daubert-Lanigan hearing. On the first day of trial, the defendant filed a written motion to hold a hearing on the scientific reliability and admissibility of Dr. Kelly’s testimony pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Commonwealth v. Lanigan, 419 Mass. 15 (1994) (Lanigan) (Daubert-Lanigan hearing). The judge heard some argument by counsel on the motion, but declined to hold an evidentiary hearing and ultimately denied the motion.³⁷ During trial but before Dr. Kelly testified, the defendant renewed her motion for a Daubert-Lanigan hearing. The judge again denied the request.³⁸ On appeal, the defendant challenges the judge’s refusal to hold the requested hearing on the reliability of Dr. Kelly’s testimony.

In Lanigan, supra at 26, the court determined that the standard for admitting scientific expert evidence could be satisfied by the general acceptance standard, see Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), or by demonstrating the reliability or validity of the underlying theory or process by some other means. In Canavan’s Case, 432 Mass. 304 (2000), we made clear that expert testimony based on personal observations or the expert’s clinical experience were not exempt from the requirements of Lanigan. See id. at 313 (“Observation informed by experience is but one scientific technique that is no less susceptible to Lanigan analysis than other types of scientific methodology”). The defendant, therefore, is correct that a so-called “soft science,” such as psychiatry, in which expert opinions are often based on the personal observations and clinical experience of the psychiatrist, fall within Lanigan’s reach. We do not, however, understand the judge to have refused to hold an evi-dentiary Daubert-Lanigan hearing on the ground that psychiatry, as a “soft science,” was exempt from such an analysis.

The fact that it may be necessary for a judge — at least on motion of one of the parties — to determine whether the opinion testimony of a particular expert witness is sufficiently reliable to be presented at trial does not mean the judge must hold a separate evidentiary hearing. Rather, we have held that a Daubert-Lanigan hearing may not be necessary where the expert’s methodology has previously been accepted as reliable in the relevant field.³⁹ See Commonwealth v. Shanley, 455 Mass. 752, 763 n.15 (2010); Commonwealth v. Frangipane, 433 Mass. 527, 538 (2001). At the time of the defendant’s trial, Dr. Kelly had testified as a mental health expert in one hundred to 200 cases in Massachusetts. In addition, Dr. Kelly’s opinion testimony was based on his interview with the defendant, see, e.g., Blais-dell, 372 Mass, at 759 (“The primary diagnostic source in [psychiatric examinations] is that which the examiner may glean from the nature and content of the defendant’s statements”), and he reviewed a wide variety of materials related to her personal and medical history (including mental health history) as well as the circumstances of the crime with which she was charged. On this record, we conclude that the judge, who was permitted to consider each of these factors, see Commonwealth v. Goodman, 54 Mass. App. Ct. 385, 391 (2002), was within his discretion to find that Dr. Kelly’s methodology was “reliable to support [his] scientific conclusion,” Canavan’s Case, 432 Mass, at 314,⁴⁰ and to permit him to testify without holding an evidentiary hearing.⁴¹

(ii) Jury instruction. The defendant argues it was error for the judge to refuse to provide a definition of “mental disease or defect” in the jury charge. We have previously indicated that a judge is not required to define “mental disease or defect” but has discretion to provide the instructions that are appropriate to the context. Commonwealth v. Fuller, 421 Mass. 400,411 (1995). Although a definition beyond that contained in the model instruction may have been helpful here, see Commonwealth v. Mills, 400 Mass. 626, 635 n.2 (1987) (O’Connor, J., dissenting) (“Definition of the words ‘mental disease or defect’ by this court would benefit the administration of justice”), we cannot say there was an abuse of discretion.

(iii) Recording of Dr. Kelly’s interview. In a pretrial motion, the defendant requested that “a full video and audio record” be made of Dr. Kelly’s examination of the defendant. The motion judge, relying on an affidavit submitted by Dr. Kelly in which he opined that recorded sessions result in less spontaneity on behalf of the defendant, denied the request. We have previously recognized that videotaping the appointed examiner’s psychiatric interview “might be a sound idea,” Commonwealth v. Trapp, 423 Mass. 356, 359, cert, denied, 519 U.S. 1045 (1996); see Commonwealth v. Baldwin, 426 Mass, at 111, and we continue to do so. However, contrary to the defendant’s claim, we can find no abuse of discretion by the judge in this case. See Commonwealth v. Lo, 428 Mass. 45, 48 (1998).

(iv) Evidentiary rulings. We briefly address three evidentiary rulings by the judge. The first concerns the testimony of attorney Kathryn Parakilas. Parakilas had been the defendant’s attorney for ten years before July 28, 2004, the date of the homicide, and was at that time providing representation in connection with her divorce. The defendant called Parakilas as a witness at trial for the purpose of introducing in evidence the original of a letter written by the victim that accused the defendant of hiding her own purse, reporting it stolen to the police, and filing a false insurance claim. On cross-examination, Parakilas testified that she had represented the defendant at her arraignment on the murder charge in the District Court on the July 30, 2004, and, over objection, she testified that she knew at that time that the court could order a psychiatric examination but did not request one. The defendant argues that this testimony violated the attorney-client privilege. We agree.

Just as an attorney’s mental impressions concerning her client’s truthfulness are subject to the attorney-client privilege, see Commonwealth v. Martinez, 425 Mass. 382, 391 (1997), so too are the attorney’s mental impressions about her client’s sanity. By inquiring into Parakilas’s decision not to request a psychiatric examination on the date of the defendant’s arraignment, the Commonwealth impermissibly intruded into Parakilas’s impressions of her client’s mental state. Such testimony should not have been admitted.

Second, the defendant argues it was error for the judge to sustain an objection to Dr. Brown’s testimony concerning his explanation of how the victim’s thirty-four stab wounds bore on his diagnosis that the defendant suffered from dissociative disorder not otherwise specified. The basis of the judge’s ruling is not clear from the record, but as a general matter, the defendant’s expert in a criminal responsibility case is entitled to testify broadly about mental capacity. Commonwealth v. Louraine, 390 Mass. 28, 34 (1983) (“A defendant is entitled to place before the jury any evidence which is at all probative of his mental condition”); Commonwealth v. Callahan, 386 Mass. 784, 792 (1982), quoting Commonwealth v. McHoul, 352 Mass. 544, 550 (1967) (“Experts experienced in the study and treatment of the mentally ill may testify fully as to the nature and extent of impairment of defendants’ mental faculties as well as their observations or other bases for their conclusions”). To the extent that Dr. Brown sought to render an opinion that the evidence of thirty-four stab wounds —• evidence introduced by the Commonwealth as part of its case-in-chief — supported his view that the defendant was experiencing a dissociative mental state, that testimony would appear to fall within permissible bounds.

Finally, the defendant is correct that it was error for the prosecutor, as part of the Commonwealth’s case-in-chief, to ask three lay witnesses whether the defendant ever showed “overt signs of a mental illness.”⁴² These witnesses were not qualified to give such an opinion. See, e.g., Commonwealth v. Bruno, 432 Mass. 489, 511 (2000); Commonwealth v. Monico, 396 Mass. 793, 803 (1986). See also Mass G. Evid. §§ 701, 702 (2010).⁴³

3. Conclusion. The defendant’s conviction is reversed, the verdict set aside, and the case remanded to the Superior Court for a new trial.

So ordered.

1 We acknowledge the amicus brief filed on behalf of the defendant by the Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers.

2 With respect to sexual issues, medical records in evidence indicated that over the years the defendant had complained of intense pain and soreness during and after sexual intercourse. In addition to the medical records evidence, Dr. Daniel Brown, the defendant’s expert witness on criminal responsibility, testified to a number of statements the defendant had made to him about how the victim was “almost obsessed [with sex],” the victim’s domineering and repeated insistence on having sexual intercourse with the defendant, and the defendant’s pain, which was often so intense that she cried. These statements were not admitted for their truth but for the limited purpose of providing information that formed the basis of Dr. Brown’s opinions about the defendant’s mental state and specifically his opinion that the defendant felt controlled by the victim.

3 Lividity is the pooling of blood at lower levels of the body and begins thirty minutes after death. It becomes more pronounced after four hours.

4 At all relevant times of this case, Howard Safford was an assistant district attorney for the Hampden district.

5 We later review additional aspects of pretrial proceedings and the trial in connection with our discussion of the issues raised.

6 On July 29, 2004, a search warrant was issued for 56 Bear Hole Road. It authorized police both to videotape and photograph “the scene” and to search for:

“Blood, semen, saliva, physiological fluids and secretions, hair, fibers, fingerprints, palm prints, foot prints, snow prints, soiled and blood soaked clothes, any instrument or weapon that may have been used to cause the death of [the victim], marks of tools to gain access to locked premises or containers and items containing traces of any of the above mentioned articles including drains and sewers, telephones, and answering machines.”

7 The letter and notes (as well as the looseleaf notebook with mementos) were seized along with a number of items that fit within the scope of the items described in the warrant. The defendant does not challenge the validity of the warrant or the seizure of any items other than the letter and the notes.

8 The fact that a handwritten letter addressed to an assistant district attorney was on the defendant’s kitchen counter, by itself, was not and would not be incriminating. Our determination that the letter was properly seized results from the additional words that could be seen by the trooper, and the other officers to whom the trooper mentioned the letter, without moving the “date book” that was lying on top of the letter. Contrast Arizona v. Hicks, 480 U.S. 321, 324-326 (1987) (moving stereo equipment to read serial numbers printed on back constituted search separate and apart from initial, authorized search; this separate search was not justified by plain view doctrine, thus independent showing of probable cause required). In light of the officers’ state of knowledge concerning the crime at issue, the words visible to them provided enough to justify their belief that the letter contained evidence regarding motive. See Commonwealth v. D’Amour, 428 Mass. 725, 730-732 (1999) (letter was in plain view and properly seized because after “scanning]” letter, “it became immediately apparent that [the police] stumbled on evidence of a motive on the part of the defendant for killing her husband”).

9 Two of the twenty-two notes were initially hidden from view: one was found in a drawer containing clothing, and the other was found inside a piece of computer furniture. Testimony confirmed that police officers stumbled on these two notes as they searched for bloody clothing and other items of evidence listed in the warrant.

10 Rule 14 (b) (2) (A) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1518 (2004), provides in relevant part: “If a defendant intends to rely upon the defense of lack of criminal responsibility because of mental disease or defect at the time of the alleged crime, the defendant shall . . . notify the prosecutor in writing of such intention.”

11 The second motion judge clarified her December 16, 2005, discovery order on December 30, 2005; the summary in the text above reflects the substance of the discovery order as modified.

12 The defendant appealed to this court from the judgment of the single justice, but the appeal was dismissed as moot in June of 2006, following the defendant’s conviction. See Sliech-Brodeur v. Commonwealth, 447 Mass. 1004 (2006).

13 The second motion judge’s December 16, 2005, discovery order, as clarified on December 30, 2005; the compliance order dated January 24, 2006; and the January 19, 2006, order of the single justice, as modified on January 26, 2006, are referred to collectively in this opinion as the pretrial discovery orders.

14 Dr. Brown interviewed the defendant for a total of fifteen hours on six different dates, and he spent another ten and one-half hours conducting psychological tests.

The defendant claims these materials were sent to Dr. Kelly on January 27, 2006; the Commonwealth asserts that the materials were not received until January 30, 2006. The difference in these dates is not material to our decision.

15 When the defendant’s appeal was docketed in this court, she moved to expand the record to include, inter alia, an “exemplar” of Dr. Brown’s materials that included the nine single-spaced pages of the defendant’s statements. The Commonwealth did not oppose the motion, and on January 29, 2010, we allowed it.

16 Rule 14 (b) (2) (B) (iii) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1518 (2004), provides in part: “The examiner shall file with the court a written psychiatric report which shall contain his or her findings, including specific statements of the basis thereof, as to the mental condition of the defendant at the time the alleged offense was committed.”

17 The judge’s order came after the defense counsel’s opening statement in which he mentioned that Dr. Brown would be called as an expert witness and summarized Dr. Brown’s anticipated testimony, but did not include in that summary any reference to specific statements the defendant had made to Dr. Brown.

18 The Commonwealth argues that the defendant has waived any objection to the discovery of her statements to Dr. Brown, contending that the pretrial discovery order of the second motion judge did not specifically require Dr. Brown to turn over to Dr. Kelly the statements of the defendant, but the defendant nonetheless turned over copies of all Dr. Brown’s materials, including the defendant’s statements, without redaction. We disagree that a waiver occurred. Paragraph four of the Commonwealth’s discovery motion certainly implies that the first three paragraphs — which the second motion judge allowed in her discovery order — were intended to secure production of the defendant’s statements to Dr. Brown. This view is confirmed by the orders of the single justice upholding the Superior Court judges’ pretrial discovery orders and directing that “any statements of [the defendant]” be provided to Dr. Kelly. In the circumstances, we conclude that the defendant could reasonably interpret the pretrial discovery orders as compelling her to produce the statements she made to Dr. Brown. As she repeatedly objected to these orders, her claim of error with respect to disclosure of her statements and other parts of Dr. Brown’s materials is preserved.

19 Since 1979, when this court first adopted the Massachusetts Rules of Criminal Procedure, 378 Mass. 842 (1979), we have not changed the procedures codified in rule 14 (b) (2). We have, however, expanded its application to defenses beyond that of lack of criminal responsibility. See, e.g., Commonwealth v. Ostrander, 441 Mass. 344, 352, cert, denied, 543 U.S. 867 (2004) (alleged inability voluntarily to waive Miranda rights); Commonwealth v. Contos, 435 Mass. 19, 23-27 (2001) (alleged inability to premeditate). See generally Commonwealth v. Diaz, 431 Mass. 822, 829 (2000) (“Although Blaisdell concerned the defense of lack of criminal responsibility, this court has implicitly recognized that the procedures set forth in that case and rule 14 [b] [2] [B] should be applied where the defendant raises an issue regarding his mental impairment”); Commonwealth v. Harvey, 397 Mass. 803, 807 n.2 (1986).

20 Before reaching waiver, the court first rejected the Commonwealth’s claims that statutes relating to a defendant’s communications with a psychiatrist, see G. L. c. 233, §§ 20B and 23B, provided immunity to a defendant that was coextensive with the privilege against self-incrimination, and therefore constitutionally adequate. Blaisdell v. Commonwealth, 372 Mass. 753, 761-764 (1977) (Blaisdell).

21 The dissent states that the privilege against self-incrimination “does not apply to a defendant’s statements to the psychiatrist retained by his attorney because these statements were not compelled by the Commonwealth or the court.” Post at 340. While a defendant’s communications with his own psychiatric expert may be voluntary, that is beside the point in this case. At issue here are court orders requiring the defendant’s expert to disclose the defendant’s statements — presumably concerning the crime at issue or her mental state at the time of the crime, or both — to the prosecution’s expert witness. The defendant’s privilege against self-incrimination applies to and protects against that compelled disclosure of her statements to the prosecution unless and until a waiver of that privilege has occurred. See Commonwealth v. Goulet, 374 Mass. 404, 411 n.4 (1978); Commonwealth v. Baldwin, 426 Mass. 105, 109 (1997), cert, denied, 525 U.S. 820 (1998). Commonwealth v. Seabrooks, 433 Mass. 439 (2001), cited by the dissent, is inapposite. Post at 340-341. That case involved a defendant’s statements to a forensic psychologist retained by jail officials — employees of the Commonwealth — to assess the defendant’s risk of suicide while he was being held in custody; the statements were contained in the jail records, and thereby available to both the prosecution and defense. See Commonwealth v. Seabrooks, supra at 446-447, 450-451.

22 The dissent’s discussion of Blaisdell erroneously suggests that the case only concerned G. L. c. 123, § 15, and had nothing to do with the issue of the Commonwealth’s interest in (and need for) discovery relating to a defendant’s lack of criminal responsibility defense. Post at 336-339. In fact, the court in Blaisdell indicates that through its delineation of specific procedures, it was attempting to provide a “suitable framework” that would allow necessary discovery to the Commonwealth while protecting the defendant’s privilege against self-incrimination. Blaisdell, 372 Mass, at 757, 758, 767. See Commonwealth v. Goulet, 374 Mass, at 411 n.4.

23 Rule 14 (b) (2) (B) provides that the court may order the defendant to submit to a psychiatric examination “upon its own motion or upon motion of the prosecutor.” As a practical matter, it is the prosecutor who recommends the expert psychiatrist for appointment as the examiner. We have recognized the court-appointed examiner as an agent of the prosecution. See Commonwealth v. Baldwin, 426 Mass, at 109, citing Blaisdell, 372 Mass, at 760.

24 Blaisdell, 372 Mass, at 766, explained the rationale for this reciprocal discovery as follows: “[A] defendant who seeks to put in issue his statements as the basis of psychiatric expert opinion in his behalf opens to the State the opportunity to rebut such testimonial evidence in essentially the same way as if he himself had testified. . . . [Tjhere would be no violation of [the defendant’s] privilege should the court then order him ... to submit to psychiatric examination so that the jury may have the benefit of countervailing expert views, based on similar testimonial statements of a defendant in discharging its responsibility of making a true and valid determination of the issues thus opened by [the] defendant.” See Commonwealth v. Wayne W., 414 Mass. 218, 231 (1993).

25 Rule 14 (a) (1) (A) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1518 (2004), and Mass. R. Crim. P. 14 (a) (1) (B), as amended, 444 Mass. 1501 (2005), prescribe procedures and specific types of mandatory discovery for the defendant (rule 14 [a] [1] [A]), and mandatory reciprocal discovery for the prosecution (rule 14 [a] [1] [B]).

26 Rule 14 (a) (2) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1518 (2004), authorizes the defendant as well as the prosecution to move “for discovery of other material and relevant evidence” not required under the automatic discovery provisions of rule 14 (a) (1) (A) and (B).

27 In Blaisdell, 372 Mass, at 759, we carefully distinguished between a psychiatric inquiry and “[m]alters which may be relevant to a defendant’s physiological condition, where objective testing devices such as X-rays, blood tests and electroencephalographs may be relevant.” In Commonwealth v. Trapp, 396 Mass. 202 (1985) (Trapp I), S.C., 423 Mass. 356, cert, denied, 519 U.S. 1045 (1996) (Trapp II), the court considered, and rejected, claims by the defendant that pretrial discovery orders requiring him to disclose to the prosecution the results of a computerized axial tomography scan and brain mapping, medical, and psychological tests violated his rights against self-incrimination. See Trapp I, supra at 212; Trapp II, supra at 363. To the extent that the Trapp decisions were concerned with medical or physiological tests, they are consistent with our decision in Blaisdell as well as rule 14 (b) (2) (B) (ii). However, psychological tests pose a different question. The first Trapp decision treated these as discoverable “scientific tests,” and both decisions referenced rule 14 (a) as authorizing the discovery the Commonwealth sought. Since the Trapp decisions, rule 14 (a) has been extensively amended and, as of the time of the pretrial proceedings in this case, no longer contained a provision for reciprocal discovery of “mental examinations of any person.” To the extent that the Trapp decisions treat psychological tests as “scientific tests” that are subject to reciprocal discovery and, more to the point, to the extent that these cases indicate that rule 14 (a) applies to discovery related to the defense of lack of criminal responsibility, we do not continue to follow them.

28 Rule 14 (a) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 874 (1979), provided in pertinent part:

“(1) Mandatory Discovery for the Defendant. Upon motion of a defendant . . . the judge shall issue an order of discovery when the requested information is relevant and consists of:

“(A) any written or recorded statements made by the defendant within the possession, custody, or control of the prosecutor, or

“(B) the written or recorded statements of a person who has testified before a grand jury; or

“(C) any facts of an exculpatory nature within the possession, custody, or control of the prosecutor. . . .

“(2) Discretionary Discovery. Upon motion of a defendant ... 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. . . .

“(3) Reciprocal Discovery. (A) 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).

29 As has been indicated (see note 15, supra), the over 200 pages of materials that Dr. Brown was ordered to produce are not part of the record before us, with the exception of nine pages of notes. It is clear from Dr. Kelly’s trial testimony that Dr. Brown’s notes and materials relating to the psychological testing of the defendant were included in the total package that Dr. Kelly received. It is reasonable to assume the total package represented Dr. Brown’s entire written record relating to the defendant, including, perhaps, notes of Dr. Brown’s impressions of the defendant or of the case.

30 As we discuss in Part 2.b (v), infra, we require, in criminal prosecutions commenced after the date of this opinion, that the defense provide the Commonwealth with a report prepared by the defendant’s expert containing the expert’s opinion and supporting bases and reasons.

31 The dissent contends that the only error in this case concerns the timing of disclosure but not its substance. See post at 334-335. That is not the case. As we state in this opinion, in the future, a report prepared by a defendant’s psychiatric expert witness shall be provided to the Commonwealth at the appropriate time — as indeed was done in the present case. (On this point, the dissent takes pains to catalogue in detail all the ways in which it finds Dr. Brown’s report to be deficient, see post at 331-332, but of course if a party claims a report received from the other side’s expert is inadequate, the party may request, and a judge may order, the report to be supplemented.) But we do not accept the dissent’s core premise that as a general matter, all notes prepared by a defendant’s psychiatric expert witness — whether notes on interviews with or testing of the defendant or other topics —■ should be available to the Commonwealth at some time before or during trial as a matter of course. This is not even the approach taken with respect to expert witness discovery in civil cases. See Mass. R. Civ. R 26 (b) (4), 365 Mass. 772 (1974). Beyond that, we have questions relating to discovery of results of psychological tests performed by the defendant’s own psychiatric expert. Under rule 14 (b) (2) (B), as currently in effect, there is no provision for pretrial discovery by the Commonwealth of psychological test results and materials prepared by the defendant’s expert; rather, the rule specifically provides that the Commonwealth’s expert may perform his or her own psychological testing of the defendant. See Mass. R. Crim. P. 14 (b) (2) (B) (i). Although we recognize that there may be cases in which the Commonwealth and the defendant agree to exchange or provide such test results to each other, because there was no such agreement in this case, it was error for the judge to order the defendant to turn over to the Commonwealth’s expert the results, notes, and materials concerning the psychological tests performed by Dr. Brown. Whether this aspect of rule 14 (b) (2) should be modified in any respect in the future is an issue we ask the standing advisory committee on the rules of criminal procedure to consider. See Part 2.b (v), infra. Finally, it is important to emphasize that the only issue we address in this case is pretrial discovery. If, as the dissent fears, a defendant’s expert psychiatric witness is “cherry-picking” the defendant’s statements at trial, see post at 332-333, a trial judge has discretion to entertain remedial measures, which may include the required disclosure to the prosecution of any notes the defendant’s expert may have on the substance of the defendant’s statements to the expert.

32 In light of this conclusion, we do not need to address whether there was additional error in either the judge’s February 16, 2006, order allowing Dr. Kelly to discuss with the Commonwealth the statements of the defendant contained in Dr. Brown’s materials or the Commonwealth’s use of those materials throughout the defendant’s trial.

33 If, in connection with any retrial of this case, the defendant proceeds with a lack of criminal responsibility defense based on her statements, the Commonwealth will need to seek appointment of a new psychiatric expert. If the defendant does so proceed and provides notice that she expects to call Dr. Brown as an expert witness to testify at trial, the Commonwealth may not provide Dr. Brown’s expert report currently in its possession to any newly appointed psychiatric expert witness until the judge’s release to the defense of the report prepared by the Commonwealth’s expert, unless the defendant and the Commonwealth agree on an earlier time.

34 It appears that mutual disclosure of experts’ reports is not uncommon. See, e.g., Commonwealth v. Baldwin, 426 Mass, at 109 n.3 (defendant assented to Commonwealth’s motion for production and disclosure of reports by Commonwealth’s expert and defendant’s two testifying expert witnesses); Commonwealth v. Harvey, 397 Mass. 803, 805 (1986) (simultaneously with court’s releasing to parties report of appointed expert, defense counsel gave prosecutor copy of report prepared by psychiatrist retained by defendant). We do not suggest that an agreement, or lack of objection, by a defendant’s counsel to the exchange of psychiatric experts’ reports or other information before any amendment to rule 14 (b) (2) would have been, or would be, inappropriate or improper.

35 Under the Federal Rules of Criminal Procedure, in a case where the defendant asserts a defense of lack of criminal responsibility, on request, both the prosecution and the defendant must produce a written summary of expert testimony that each intends to use; the summary must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications. See 18 U.S.C. § 4247(c) (2006); Fed. R. Grim P. 12.2 (b) and (c); Fed. R. Crim P. 16 (a) (1) (F) & (G) and (b) (1) (B) & (C). See generally United States v. Rettenberger, 344 F.3d 702, 706 (7th Cir. 2003).

36 Pending our receipt and consideration of the standing advisory committee’s recommendation, a defense expert’s report should be made available to the Commonwealth at the time that the judge releases the court-appointed expert’s report pursuant to rule 14 (b) (2) (B) (iii), unless the parties agree to an earlier time.

37 In denying the defendant’s motion, the judge stated:

“I’m going to deny that motion. It seems to me to be beyond challenge that what I regard as the soft science of diagnosing mental illness, particularly whether the — a defendant suffers a mental disease or defect with the consequent effect on the criminal responsibility at a historical point in time, is an issue that has been so regularly confronted by the appellate courts with a long acceptance of this testimony in our jurisprudence that there is not a justification for Daubert-Lanigan hearing.

“Appreciating the deficiencies of Doctor Kelly’s report, I still think that it is reasonable, under the circumstances as I understand them, as well as under the case law, that personal observations, as he has reported having during his examination of the defendant, and his clinical experience are or may be, depending on the jury’s view, reliable methodology, but are reliable, from my judicial perspective, to justify his offering opinions on that topic. So, I’m going to deny that motion.”

38 The judge stated, “I’m going to deny that request. I think as I said several days ago in this soft science area, I don’t believe that a [Daubert-Lanigan] hearing is required. I have to observe that Doctor Kelly appears in reported decisions for many many years offering similar opinions as he is going to articulate here, and I think I’ve even read several opinions in which he testified that he felt that a particular defendant did lack criminal responsibility. So I’m going to deny the request or deny the motion and allow his testimony — for a \Daubert-Lanigan] hearing.”

39 This does not preclude a party from requesting a hearing on the belief that the science in a particular field has advanced to the point where previously accepted expert testimony would no longer be considered reliable. See Commonwealth v. Shanley, 455 Mass. 752, 763 n.15 (2010); Commonwealth v. Murphy, 59 Mass. App. Ct. 571, 576 n.6 (2003).

40 The defendant’s specific criticisms of Dr. Kelly — that he conducted only “one unstructured interview,” formed an opinion on mental status without regard to standardized criteria established in the Diagnostic and Statistical Manual of Mental Disorders, and supports a view that only psychosis constitutes a mental disease or defect that makes a defendant unable to appreciate the wrongfulness of her conduct or conform her conduct to the requirements of the law — did not and do not make his testimony inadmissible. Rather, these objections represented proper grounds for cross-examination. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence”). See also Commonwealth v. Sands, 424 Mass. 184, 186 (1997).

41 The burden is on the proponent of the expert testimony to show that the method of personal observation employed in the case is reliable. Canavan’s Case, 432 Mass. 304, 314 (2000). The defendant argues that the Commonwealth made no such showing because no written opposition or documents were filed after the defense filed its motion requesting a Daubert-Lanigan hearing. However, the Commonwealth met its burden during the arguments heard on February 13, 2006 (following jury empanelment), when the judge required the Commonwealth to detail why Dr. Kelly’s interview methodology and expected testimony were reliable.

42 Each witness answered the question in the negative, and the prosecutor used these responses in the Commonwealth’s closing argument, stating, “None of the people who knew her described her as exhibiting any signs of a serious mental illness.”

43 Although a lay witness may not testify about whether another person suffered from mental illness, such a witness is permitted to “testify to facts observed.” Commonwealth v. Monico, 396 Mass. 793, 803 (1986). In this case, after replying in the negative to whether the defendant exhibited “overt signs of a mental illness,” the victim’s daughter, Michele Battista, testified that she (Battista) did not have difficulty understanding the defendant; that the defendant never appeared to have difficulty understanding her; that the defendant’s speech was lucid and coherent; and that the defendant was able to successfully manage everyday affairs, such as owning and driving a car. Two friends of the defendant provided similar testimony. These observations were properly admitted, as they represented “summary descriptions . . . based on the sensory reactions of [a person] . . . and [did] not [require] special learning or experiment.” Commonwealth v. Brusgulis, 41 Mass. App. Ct. 386, 390-391 (1996), quoting Commonwealth v. Tracy, 349 Mass. 87, 95 (1965).