In Commonwealth v. D.M., the Supreme Judicial Court reversed the single justice’s denial of the Commonwealth’s petition for relief from an interlocutory order of the Juvenile Court, requiring the Commonwealth to reveal the identity of an informant.
The background was as follows. “Acting on information provided by a confidential informant, the Boston police apprehended, searched, and arrested the juvenile, D.M., on firearm-related charges. Before a hearing on the motion to suppress in the Juvenile Court, the juvenile sought an order requiring the Commonwealth to disclose the identity of its informant and other related information. The Commonwealth asserted that it was privileged not to disclose the information, … because disclosure would jeopardize the informant’s safety. It averred that the informant was not a percipient witness to the juvenile’s arrest, and that the juvenile had not met his burden of demonstrating that disclosure was required…. [T]he judge allowed the juvenile’s motion. The judge determined that … the juvenile adequately had challenged the assertion of the privilege on the ground that it interfered with his right to present a defense…. The judge concluded that the ‘informant’s identity and concomitant information are sufficiently “relevant and helpful to the defense of an accused” that it must be disclosed.’ [Commonwealthv. Bonnett, 472 Mass. 827,] 847 , quoting Commonwealthv. Dias, 451 Mass. 463, 468 (2008). The Commonwealth thereafter filed a G.L. c.211, §3 petition …, seeking reversal of the interlocutory ruling…. The single justice denied the petition, and the Commonwealth appeal[ed].”
In its decision in favor of the Commonwealth, the SJC opined that the judge erred in failing “to distinguish between ‘the need for disclosure [of an informant’s identity] at a pretrial suppression hearing and at the trial proper.’ [Commonwealthv.]Lugo, 406 Mass. [565,] 570-571  (‘nondisclosure is rather readily countenanced at pre-trial hearings, but not so at the trial itself’).” “The distinction between ‘a demand for disclosure at a pretrial hearing, where the issue is probable cause for arrest or search, and a demand for disclosure at trial, where the issue is the defendant’s ultimate guilt or innocence,’ is an important one that long has been maintained. See [Commonwealthv.] Madigan, 449 Mass. [702,] 706 n.8 . Because the judge’s analysis conflated the two standards, … the analytical error should not stand…. While we recognize that a trial judge has considerable discretion in striking a balance, exercise of that discretion must be within the confines of the correct legal framework…. In these exceptional circumstances, we conclude that the single justice abused her discretion in declining to employ the court’s power of superintendence to rectify the error.”
If you or a loved one is charged in a case that involves a confidential informant, it is extremely important that you have an attorney who knows how to handle such evidence, make any and all appropriate requests for disclosure, and mount all possible challenges to the evidence. Although the court’s decision in this particular case is disappointing, a skilled attorney will potentially be able to distinguish this case from the facts of your case and ask the court to come to a different conclusion. Attorney Daniel Cappetta is such a skilled attorney – call him for a free consultation today and put his expertise to work for you.