In re Grand Jury Investigation
In re Grand Jury Investigation
Opinion of the Court
The petitioner appeals from a judgment of a single justice of this court denying his petition for relief pursuant to G. L. c. 211, § 3. The Commonwealth has moved to dismiss the appeal as moot. We allow the Commonwealth’s motion.
The petitioner was charged in the District Court with various felonies. In connection with a subsequent grand jury investigation, the prosecutor sought approval from a judge in the Superior Court to subpoena an investigator hired by the petitioner’s counsel. See Mass. R. Prof. C. 3.8 (f), 426 Mass. 1397 (1998). See also Matter of a Grand Jury Investigation, 407 Mass. 916, 917-920 (1990). The prosecutor sought to question the investigator about an allegation that he had instructed a witness not to talk to the police. The petitioner’s counsel objected to the issuance of the subpoena, claiming that subpoenaing the investigator would violate attorney-client and work-product privileges and impair the petitioner’s relationship with his defense team. The judge approved the request, concluding that the reason for the subpoena was a legitimate law enforcement purpose, and that the limited scope of the prosecutor’s proposed inquiry would not implicate those privileges.
The judge stayed her order to allow the petitioner to pursue the matter through a petition in the county court. In his petition, the petitioner pressed the same claims that he had raised in the Superior Court, and added that the prosecutor and the judge had failed to comply with the requirements of rule 3.8 (f). The single justice denied the petition. While recognizing that, “[a]t first blush,” the case “appear[edj” to raise important issues concerning privileges applicable to a defense attorney’s investigation and what standards a judge should apply when approving a summons pursuant to rule 3.8 (f) (2), the single justice concluded that “the precisely limited scope of the questioning permitted by the judge, and the purpose of that questioning” identified by the prosecutor, “obviate[d]” those concerns: “the Commonwealth does not seek to uncover privileged information or to benefit from the fruits of the defense investigation.”
Thereafter, the investigator appeared before the grand jury but did not testify because he validly invoked his privilege against self-incrimination pursuant to the Fifth Amendment to the United States Constitution. The grand jury indicted the petitioner even without the investigator’s testimony. Thereafter, the petitioner was tried and convicted of all but one charge.
The Commonwealth contends that because the grand jury proceedings have long since ended, the petitioner’s claims have become moot. The petitioner
Appeal dismissed.
Contrast Matter of a Grand Jury Subpoena, 447 Mass. 88, 89 (2006) (court addressed merits of novel question concerning application of spousal privilege in grand jury proceedings despite case becoming moot after oral argument because issue was important and “trial judges have reached differing conclusions”); Matter of a Grand Jury Investigation, 443 Mass. 20, 21 (2004) (court addressed scope of privilege of children not to testify against parents, under G. L. c. 233, § 20, Fourth, where, despite case becoming moot, matter had been reserved and reported by single justice, and issue was one of significance and likely to recur).
Reference
- Full Case Name
- In the Matter of a Grand Jury Investigation
- Cited By
- 1 case
- Status
- Published