In a significant shift in the way prosecutors handle police witnesses, district attorneys in Massachusetts are more thoroughly screening officers who testify for the prosecution for any pending complaints against them, underscoring a heightened scrutiny resulting from a recent state court ruling.
District attorneys already typically ask police officers about proven or sustained allegations in their files, in what’s considered a screen test of the officer’s integrity. Prosecutors are required under a Supreme Judicial Court ruling to turn over such information to defense attorneys, and in recent years some district attorneys have updated their list of police officers whose testimony could fall under question because of past misconduct — known as “Brady lists,” after a 1963 US Supreme Court ruling that requires prosecutors to turn over potentially exculpatory material.
But a ruling in February by the Massachusetts Appeals Court expanded the scope of these reviews, prompting a more proactive examination of outstanding allegations against police officers, from lawsuits or internal affairs cases that haven’t yet been resolved. The information could raise questions about the credibility of an officer’s testimony, which can be crucial to a criminal case.
The decision centers on a Springfield police officer who was found liable in a civil case for false arrest just two weeks after he’d testified in a separate gun case without the prosecution, defense, or judge knowing about the complaint.
The ruling has drawn criticism from the State Police Association of Massachusetts, the union that represents troopers. The association sent a letter to the attorney general and all 11 of the state’s district attorneys offices objecting to the potential that prosecutors will directly ask officers about unsubstantiated complaints. The union argues it would be unfair to judge officers based on such claims.
But multiple district attorneys offices told the Globe they are already complying with the decision and have redrafted the list of questions they ask officers whom they expect to put on the witness stand.
“It’s a burden shift,” Norfolk Assistant District Attorney Michael Connolly, who oversees prosecutorial disclosure requirements for the office, said in an interview. “Every ADA is asking these questions every day. I was in court today and I saw it happen twice. It’s a fact of life now.”
Two weeks after the Feb. 2 court ruling, Connolly’s office circulated a memo alerting its prosecutors it will be “inquiring individually of law enforcement witnesses” on a range of ongoing investigations, according to a copy of the notice provided to the Globe.
The document directs prosecutors to discuss whether “the law enforcement witness is aware of any pending or proven charges” including internal affairs investigations, unresolved citizens complaints, criminal charges, lawsuits, and complaints from outside agencies including the state attorney general’s office or the Department of Children and Families.
Connolly said he sends a list of questions soliciting such information with every summons to police officers to be a witness at an upcoming trial. Though no witness since the court ruling has had an open case to notify him about, Connolly said it is “inevitable” the issue will arise, and the DA’s office expects to handle those on a case-by-case basis. He noted that the new standard doesn’t apply to lawsuits that aren’t related to official police duties, such as those involving divorces or neighbor disputes.
Connolly supported the decision as a strengthening of the constitutional right to a fair trial.
“People should be happy to know that the playing field is being leveled,” he said.
Officials in Essex, Suffolk, Middlesex, Hampden counties and the Cape and Islands district attorneys offices said they have similarly advised their prosecutors of the new standard. Middlesex County said it has also created a new questionnaire, while Essex prosecutors said they will make an “individual inquiry of the officers” and add any appropriate information into a database for future reference.
In its letter to the district attorneys, the State Police Association had pleaded with prosecutors to unite and challenge the court ruling, to no avail. The Hampden district attorney’s office, which prosecuted the original case, appealed the new standard to the state Supreme Judicial Court, but in the meantime it has already changed how it handles police witnesses to comply with the ruling.
“Taking the Appeals Court’s suggestions is an inefficient recipe for distrust, invading the privacy of law enforcement, gathering incomplete information, and creating more Brady problems,” the union’s general counsel Patrick Hanley said in the letter.
Patrick McNamara, president of the troopers union, said in a statement, “Every person in the Commonwealth is legally protected against unwarranted invasions into his or her personal affairs, and that includes our members. We are simply asking that our members be afforded the same rights as their fellow citizens.”
Ilir Kavaja, who has worked as both a defense attorney and prosecutor, told the Globe that while a prosecutor “doesn’t represent the police officer, they are both arms of the commonwealth” and share a responsibility for turning over potentially exculpatory information.
“Any evidence that would tend to undermine the veracity of a witness like that is really important,” he said.
The court decision at issue arose from the trial of a Springfield man, Denzel McFarlane, who was convicted in 2020 of weapons charges after a traffic stop.
McFarlane argued that he should get a new trial because one of the Springfield police officers who arrested him, Daniel Moynahan, was found liable in a federal civil suit for false arrest and false imprisonment just two weeks after he testified against McFarlane.
McFarlane contended that the then-pending allegations against Moynahan constituted exculpatory evidence that prosecutors should have been required to disclose to the defense.
McFarlane did not argue that prosecutors in the case knew about the allegations and refused to disclose them on purpose. But in her opinion, Appeals Court Associate Justice Ariane Vuono, writing for the majority, stated that prosecutors should be asking police witnesses about such information as a matter of course to identify any concerns with testimony, even if the defense does not inquire about it.
“Because prosecutors have regular access to their police witnesses, it makes practical sense to place the burden on them to ascertain whether any police witnesses are the subject of disciplinary proceedings or a lawsuit that alleges misconduct in the course of the officer’s official duties,” she wrote.
“Here, as in most cases, it would have been reasonable for the prosecutor to ask its police witnesses for information (known or not known to the public) about any pending or proven allegation of misconduct,” Vuono wrote.
Nonetheless, Vuono refused to grant McFarlane’s request for a new trial, saying Moynahan’s testimony about the defendant’s crimes was essentially the same as that of another officer whose testimony would not have been implicated in the same way.
But the new standard she set sounded alarms among the law enforcement community, and also led to legal wrangling.
Two weeks after Vuono’s ruling, the Hampden district attorney, which prosecuted the case, filed a “motion for reconsideration or modification of decision.” Vuono denied the request on March 23.
McFarlane has also appealed the court’s refusal to dismiss his case. It is not clear if the Supreme Judicial Court will weigh in.
McFarlane’s lawyer for the appeal, Lawrence Cohen, said Vuono’s new standard was the “right decision.”
“Whatever prosecutors were using prior to McFarlane, it wasn’t working,” he said.
Sean Cotter can be reached at sean.cotter@globe.com. Follow him @cotterreporter.