WEBVTT 1 00:00:00.690 --> 00:00:05.690 SJC 13633, Commonwealth Fee. Darnell E. Sapee. 2 00:00:07.463 --> 00:00:10.213 (paper rustling) 3 00:00:20.729 --> 00:00:23.508 Okay. (door thuds) 4 00:00:23.508 --> 00:00:26.010 Okay, Attorney Schnipper. Good morning. 5 00:00:26.010 --> 00:00:27.360 Good morning, Chief Justice Budd. 6 00:00:27.360 --> 00:00:28.290 And may it please the court, 7 00:00:28.290 --> 00:00:31.143 I'm Merritt Schnipper representing Darnell Sapee today. 8 00:00:32.130 --> 00:00:34.110 Simply as a question of fact, 9 00:00:34.110 --> 00:00:37.230 the mandated report made by Clinical & Support Options 10 00:00:37.230 --> 00:00:38.310 to the depart, excuse me, 11 00:00:38.310 --> 00:00:41.670 to the Department of Children and Families establishes 12 00:00:41.670 --> 00:00:44.430 that AR spoke with a therapist about this alleged assault. 13 00:00:44.430 --> 00:00:47.324 Can I get into the factual independence for that? 14 00:00:47.324 --> 00:00:48.157 Sure. 15 00:00:48.157 --> 00:00:51.091 To quote Ronald Reagan about trusting and verifying. 16 00:00:51.091 --> 00:00:52.470 [Attorney Schnipper] I mean, so that's one 17 00:00:52.470 --> 00:00:53.910 that stood the test of time for sure. 18 00:00:53.910 --> 00:00:55.020 Right. (Attorney Schnipper chuckles) 19 00:00:55.020 --> 00:00:58.860 So, I read your affidavit on your third paragraph, 20 00:00:58.860 --> 00:01:00.817 and the last line of the third paragraph is, 21 00:01:00.817 --> 00:01:04.500 "The DCF report describes Saperstein's 22 00:01:04.500 --> 00:01:08.257 as telling a DCF investigator, and it quotes, 'language.'" 23 00:01:09.450 --> 00:01:10.380 I don't have... 24 00:01:10.380 --> 00:01:15.380 I assume you're referring to the clinician's 51 B report? 25 00:01:16.500 --> 00:01:18.630 So, there's two, there's two things going, 26 00:01:18.630 --> 00:01:19.980 there's two affidavits in play, right? 27 00:01:19.980 --> 00:01:22.920 There's counsel's affidavit. I'm not trial counsel, so. 28 00:01:22.920 --> 00:01:23.820 Right, no, I know, right. 29 00:01:23.820 --> 00:01:26.700 So my affidavit was proffered to the single justice 30 00:01:26.700 --> 00:01:29.130 for the limited purposes that I discussed in my reply, 31 00:01:29.130 --> 00:01:30.150 if I can go into them here, 32 00:01:30.150 --> 00:01:31.740 but what I'm really talking about 33 00:01:31.740 --> 00:01:35.520 is the recitation by counsel in the Dwyer motion itself, 34 00:01:35.520 --> 00:01:37.410 that Clinical & Support Options conducted 35 00:01:37.410 --> 00:01:38.880 this crisis evaluation, 36 00:01:38.880 --> 00:01:42.090 and then reported to DCF in the wake of that. 37 00:01:42.090 --> 00:01:44.310 So I think it's a plain inference from the fact 38 00:01:44.310 --> 00:01:46.657 that you have a minor child alleging sexual assault. 39 00:01:46.657 --> 00:01:48.480 Okay, but what I'm trying to get 40 00:01:48.480 --> 00:01:50.490 is the underpinnings of that. 41 00:01:50.490 --> 00:01:55.490 So, I get from the Commonwealth, the CSO clinicians 51B, 42 00:02:00.090 --> 00:02:03.690 and it seems like we don't have all of it, 43 00:02:03.690 --> 00:02:05.190 but I look through that, 44 00:02:05.190 --> 00:02:10.170 and I don't see the child report in this sexual assault, 45 00:02:10.170 --> 00:02:12.040 in that I have "mother says," 46 00:02:12.040 --> 00:02:14.490 and I have she participated in the saying, 47 00:02:14.490 --> 00:02:15.323 but those are 48 00:02:15.323 --> 00:02:16.680 two very different things. I guess, I'm not sure 49 00:02:16.680 --> 00:02:17.513 I understand the question, 50 00:02:17.513 --> 00:02:19.890 because I mean, obviously a 51B happens 51 00:02:19.890 --> 00:02:21.360 when a 51A happens. 52 00:02:21.360 --> 00:02:25.887 Right but the question is, there's a supposition that, 53 00:02:25.887 --> 00:02:27.727 and you do a great job on your brief saying, 54 00:02:27.727 --> 00:02:29.820 "This is what 51A requires," 55 00:02:29.820 --> 00:02:34.200 and you can infer based upon this, 56 00:02:34.200 --> 00:02:36.960 that she described the assault, 57 00:02:36.960 --> 00:02:40.140 but when I look for the factual underpinnings of that 58 00:02:40.140 --> 00:02:42.690 in the 51 B, I don't get it, 59 00:02:42.690 --> 00:02:44.310 and I'm just wondering if I'm missing something. 60 00:02:44.310 --> 00:02:45.300 I don't think you're missing something. 61 00:02:45.300 --> 00:02:47.330 And I don't think the 51B is tendered to the court 62 00:02:47.330 --> 00:02:49.080 in the context of the Dwyer motions. 63 00:02:49.080 --> 00:02:50.427 His really just counsel's affidavits 64 00:02:50.427 --> 00:02:51.720 and the motions himself. 65 00:02:51.720 --> 00:02:52.950 And the motions, of course, 66 00:02:52.950 --> 00:02:54.600 are just a set of factual allegations. 67 00:02:54.600 --> 00:02:56.310 They're not a set 68 00:02:56.310 --> 00:02:57.210 for legal argument. Right, 69 00:02:57.210 --> 00:02:59.970 but you have quotation marks in your affidavit, 70 00:02:59.970 --> 00:03:02.100 and I'm just wondering what are you quoting from? 71 00:03:02.100 --> 00:03:03.960 What I'm quoting from is the discovery, 72 00:03:03.960 --> 00:03:06.210 and I'm quoting from that for the purpose of saying 73 00:03:06.210 --> 00:03:07.567 to the single justice, 74 00:03:07.567 --> 00:03:10.200 "No, you should not dismiss these motions with prejudice 75 00:03:10.200 --> 00:03:12.510 in the event that you vacate the Superior Court orders." 76 00:03:12.510 --> 00:03:13.343 Okay, and when you say- And the reason 77 00:03:13.343 --> 00:03:14.176 you shouldn't do that 78 00:03:14.176 --> 00:03:17.363 is that the actual discovery that the Commonwealth provided 79 00:03:17.363 --> 00:03:18.420 shows that there was- Right, when you- 80 00:03:18.420 --> 00:03:19.350 all this stuff going on. 81 00:03:19.350 --> 00:03:22.290 All right, so, we're probably talking past each other. 82 00:03:22.290 --> 00:03:24.420 When you say you're quoting from the discovery, 83 00:03:24.420 --> 00:03:26.257 what discovery? 84 00:03:26.257 --> 00:03:27.390 [Attorney Schnipper] PCF reports, right. 85 00:03:27.390 --> 00:03:28.380 Okay, that we don't have. 86 00:03:28.380 --> 00:03:30.040 These reports, the court does not have before it. 87 00:03:30.040 --> 00:03:30.873 Okay. I mean, 88 00:03:30.873 --> 00:03:31.890 except whether the Commonwealth chose 89 00:03:31.890 --> 00:03:34.530 to put in its supplemental appendix. 90 00:03:34.530 --> 00:03:36.840 But what I think is really important here, right, 91 00:03:36.840 --> 00:03:39.243 is that what we have, based on, just on the, 92 00:03:39.243 --> 00:03:41.580 with the facts that are alleged by trial counsel 93 00:03:41.580 --> 00:03:43.200 in his Dwyer motion, 94 00:03:43.200 --> 00:03:46.080 are facts sufficient to support a finding 95 00:03:46.080 --> 00:03:49.260 that this minor reported or you know, reported the alleged. 96 00:03:49.260 --> 00:03:52.620 First she goes to an emergency psychiatric intervention, 97 00:03:52.620 --> 00:03:55.680 which is where the initial report of sexual assault occurs. 98 00:03:55.680 --> 00:03:57.900 Then we go to the Clinical & Support Options 99 00:03:57.900 --> 00:03:59.130 crisis evaluation. 100 00:03:59.130 --> 00:04:02.460 That's the one that results in the report to DCF. 101 00:04:02.460 --> 00:04:06.930 And from there, directly to two weeks of inpatient therapy. 102 00:04:06.930 --> 00:04:08.970 So, what we have are a set of facts 103 00:04:08.970 --> 00:04:10.350 sufficient to demonstrate 104 00:04:10.350 --> 00:04:12.570 not only that there was an initial report, 105 00:04:12.570 --> 00:04:13.403 in other words, 106 00:04:13.403 --> 00:04:16.470 a conversation between this minor alleging sexual assault 107 00:04:16.470 --> 00:04:17.370 and a therapist, 108 00:04:17.370 --> 00:04:20.850 which of course, is sufficient to entitle a defendant 109 00:04:20.850 --> 00:04:22.800 to summons records under the first stage of Dwyer 110 00:04:22.800 --> 00:04:24.300 under the court's case law, 111 00:04:24.300 --> 00:04:27.000 but then we have the necessary operation of statute 112 00:04:27.000 --> 00:04:28.167 that that report to DCF 113 00:04:28.167 --> 00:04:30.930 and the case of a minor will be channeled directly 114 00:04:30.930 --> 00:04:33.840 into the investigative and prosecutorial function. 115 00:04:33.840 --> 00:04:36.150 And that direct channeling, so in other words, 116 00:04:36.150 --> 00:04:39.180 from initial complaint to therapist to district attorneys 117 00:04:39.180 --> 00:04:40.410 and police being informed, 118 00:04:40.410 --> 00:04:42.360 immediately, the statute says the word "immediately," 119 00:04:42.360 --> 00:04:44.430 means we are beginning the process 120 00:04:44.430 --> 00:04:46.980 of a criminal investigation and prosecution. 121 00:04:46.980 --> 00:04:49.860 And once that process begins, 122 00:04:49.860 --> 00:04:53.220 we know that the defendant has rights to the exculpatory, 123 00:04:53.220 --> 00:04:55.530 or potentially exculpatory statements of the alleged victim 124 00:04:55.530 --> 00:04:56.970 that are contained in these treatment records. 125 00:04:56.970 --> 00:04:58.860 If we take a step back 126 00:04:58.860 --> 00:05:02.850 and look at what was in front of the single justice, 127 00:05:02.850 --> 00:05:04.350 he had to make a decision 128 00:05:04.350 --> 00:05:08.450 about Judge McDonough's decision, right? 129 00:05:08.450 --> 00:05:10.140 [Attorney Schnipper] Yes. 130 00:05:10.140 --> 00:05:15.140 Which did not include this 51A theory, let's call it. 131 00:05:15.690 --> 00:05:16.523 No, it did not. 132 00:05:16.523 --> 00:05:18.570 And I accept that a better practice would've been 133 00:05:18.570 --> 00:05:20.040 to fully enunciated there. 134 00:05:20.040 --> 00:05:22.710 I think we're in an unusual posture in a Dwyer case. 135 00:05:22.710 --> 00:05:27.217 And then we have the single justice at the end saying, 136 00:05:27.217 --> 00:05:29.670 "Well, you could refile." 137 00:05:29.670 --> 00:05:31.710 And in the event that this court affirms his judgment, 138 00:05:31.710 --> 00:05:32.543 that's what will happen. 139 00:05:32.543 --> 00:05:35.550 And that's, I think, one of the reasons that it's worth- 140 00:05:35.550 --> 00:05:39.577 Yeah, right, you anticipate the question, of course, is, 141 00:05:39.577 --> 00:05:42.930 "Why reach it here when we're deciding 142 00:05:42.930 --> 00:05:45.120 whether or not that single justice abused 143 00:05:45.120 --> 00:05:46.380 his discretion." Sure. 144 00:05:46.380 --> 00:05:47.800 That is a completely legitimate question. 145 00:05:47.800 --> 00:05:48.672 Thank you. 146 00:05:48.672 --> 00:05:49.505 (chuckles) And I think there's... 147 00:05:50.550 --> 00:05:51.480 You've got a lot of them. 148 00:05:51.480 --> 00:05:54.270 And I think there's two good answers for me to provide. 149 00:05:54.270 --> 00:05:57.180 The first is that this is a very unusual Dwyer case 150 00:05:57.180 --> 00:05:59.040 because we're not reaching the court 151 00:05:59.040 --> 00:06:02.317 after a trial conviction in which a defendant is saying, 152 00:06:02.317 --> 00:06:04.320 "My Dwyer motion was improperly denied." 153 00:06:04.320 --> 00:06:05.617 And the court would appropriately say, 154 00:06:05.617 --> 00:06:07.530 "You're not gonna enunciate any arguments 155 00:06:07.530 --> 00:06:09.300 that you didn't bring to the trial judge." 156 00:06:09.300 --> 00:06:11.700 Where an interlocutory posture, where the motion, of course, 157 00:06:11.700 --> 00:06:13.770 was allowed in the Superior Court 158 00:06:13.770 --> 00:06:15.930 such that an appellate court can affirm 159 00:06:15.930 --> 00:06:17.760 on any basis of parent in the record. 160 00:06:17.760 --> 00:06:20.853 Maybe the point of me asking the first question is, 161 00:06:21.840 --> 00:06:24.810 about the basis of what you said, 162 00:06:24.810 --> 00:06:27.660 if we were to say that you have that option 163 00:06:27.660 --> 00:06:29.580 that Justice Georges gave you, 164 00:06:29.580 --> 00:06:32.070 trial counsel would go back to the judge, 165 00:06:32.070 --> 00:06:35.550 have an affidavit that quotes from the discovery, 166 00:06:35.550 --> 00:06:37.290 and glaze it out for the judge, 167 00:06:37.290 --> 00:06:38.970 which we could review, correct? 168 00:06:38.970 --> 00:06:40.050 That would certainly happen. 169 00:06:40.050 --> 00:06:41.580 And I can tell you what will happen. 170 00:06:41.580 --> 00:06:44.250 I'll insist that not only the facts laid out 171 00:06:44.250 --> 00:06:46.560 in the DCF discovery be more effectively presented 172 00:06:46.560 --> 00:06:47.393 to the trial judge, 173 00:06:47.393 --> 00:06:49.620 but that my argument about the structure of the statute 174 00:06:49.620 --> 00:06:51.390 also be included in a written argument 175 00:06:51.390 --> 00:06:52.440 that's submitted with that motion. 176 00:06:52.440 --> 00:06:53.273 And of course, 177 00:06:53.273 --> 00:06:55.770 we could give Judge McDonough the first pass on that. 178 00:06:55.770 --> 00:06:57.750 And because he allowed these Dwyer motions 179 00:06:57.750 --> 00:06:58.650 without that argument, 180 00:06:58.650 --> 00:07:00.210 and this argument would make these motions 181 00:07:00.210 --> 00:07:04.110 much, much stronger, presumably he would allow them again. 182 00:07:04.110 --> 00:07:05.160 We might then face another 2-11-3 183 00:07:05.160 --> 00:07:07.440 based on the policy arguments we're facing now, 184 00:07:07.440 --> 00:07:09.660 and we could come right back to the single justice, 185 00:07:09.660 --> 00:07:11.940 and then theoretically to this court as well. 186 00:07:11.940 --> 00:07:14.340 But we're four years out from indictments in a case 187 00:07:14.340 --> 00:07:16.560 that is getting a lot of age to it. 188 00:07:16.560 --> 00:07:19.920 So, this issue is, I think of significant importance, 189 00:07:19.920 --> 00:07:23.160 not only to this case, but to many child sex offense cases, 190 00:07:23.160 --> 00:07:25.140 and just the ongoing balancing 191 00:07:25.140 --> 00:07:28.830 of Dwyer versus constitutional rights to present a defense. 192 00:07:28.830 --> 00:07:30.360 And I think it's fully presented for the court 193 00:07:30.360 --> 00:07:32.070 and appropriate to decide now. 194 00:07:32.070 --> 00:07:35.640 And I do think that there's an interesting, 195 00:07:35.640 --> 00:07:39.863 and it's hard to believe, not previously explored issue, 196 00:07:41.010 --> 00:07:42.630 it's not an issue, but it's an interesting balance 197 00:07:42.630 --> 00:07:44.190 that when we look at the tools we have 198 00:07:44.190 --> 00:07:47.790 for legislative interpretation, like you know this, 199 00:07:47.790 --> 00:07:50.670 the legislative set up a protective confidentiality 200 00:07:50.670 --> 00:07:52.020 and privilege system, 201 00:07:52.020 --> 00:07:54.480 and then it basically made 51A and 51A 202 00:07:54.480 --> 00:07:56.760 a relatively significant carve out to that system. 203 00:07:56.760 --> 00:07:58.380 Or not necessarily even a carve out, 204 00:07:58.380 --> 00:08:00.180 but something that works in conjunction with it 205 00:08:00.180 --> 00:08:03.210 to say that when we have minors reporting sexual assaults, 206 00:08:03.210 --> 00:08:05.310 we are downgrading the priority 207 00:08:05.310 --> 00:08:07.290 that we place on confidentiality and privilege 208 00:08:07.290 --> 00:08:09.750 to the extent that we are going to require 209 00:08:09.750 --> 00:08:11.970 that those allegations be basically, 210 00:08:11.970 --> 00:08:13.110 though they go through DCF, 211 00:08:13.110 --> 00:08:14.700 they're directly reported to the police 212 00:08:14.700 --> 00:08:17.310 and the prosecutor's office for purposes of investigation. 213 00:08:17.310 --> 00:08:19.140 And that's a completely legitimate call 214 00:08:19.140 --> 00:08:20.223 for the legislature to make, 215 00:08:20.223 --> 00:08:21.990 that this is what we prioritize, 216 00:08:21.990 --> 00:08:24.300 investigating these alleged crimes against children, 217 00:08:24.300 --> 00:08:25.650 which are so serious. 218 00:08:25.650 --> 00:08:27.180 But anytime the legislature 219 00:08:27.180 --> 00:08:29.160 makes that sort of prioritization, 220 00:08:29.160 --> 00:08:32.190 it's bringing with it in its decisional train, 221 00:08:32.190 --> 00:08:34.320 all the constitutional criminal procedure rights 222 00:08:34.320 --> 00:08:35.280 the defendant has. 223 00:08:35.280 --> 00:08:40.110 So your position is the fact of a 51A report 224 00:08:40.110 --> 00:08:42.000 would mandate disclosure? 225 00:08:42.000 --> 00:08:45.780 I think it gives a defendant the basis to satisfy Dwyer. 226 00:08:45.780 --> 00:08:47.490 Well, here's the point though, 227 00:08:47.490 --> 00:08:50.520 it doesn't mean that the child discussed 228 00:08:50.520 --> 00:08:54.000 the substance of the allegations with a therapist, correct? 229 00:08:54.000 --> 00:08:55.470 Well, it means at the very least 230 00:08:55.470 --> 00:08:58.050 that the information that's required by 51A 231 00:08:58.050 --> 00:09:00.360 to be contained in the report is transmitted. 232 00:09:00.360 --> 00:09:01.500 But it could also be 233 00:09:01.500 --> 00:09:04.740 that the mother was negligent or neglectful. 234 00:09:04.740 --> 00:09:06.660 It theoretically could be, but one of the reasons 235 00:09:06.660 --> 00:09:07.493 there was such a- Which is what happened 236 00:09:07.493 --> 00:09:08.730 in this case, too, right? 237 00:09:08.730 --> 00:09:10.380 It could, but what's happening here 238 00:09:10.380 --> 00:09:12.480 is that we have a child who's already enmeshed 239 00:09:12.480 --> 00:09:13.680 in the mental health system 240 00:09:13.680 --> 00:09:16.620 and has a bunch of pre-existing conditions, who then comes, 241 00:09:16.620 --> 00:09:18.750 and what we know just from the facts laid out 242 00:09:18.750 --> 00:09:23.130 by counsel and his affidavit in motion is that she runs away 243 00:09:23.130 --> 00:09:24.840 and says she's gonna think about committing suicide. 244 00:09:24.840 --> 00:09:26.340 She's running away from home, she's recovered, 245 00:09:26.340 --> 00:09:28.920 brought immediately to emergency psychiatric care, 246 00:09:28.920 --> 00:09:30.570 where an allegation of rape is made. 247 00:09:30.570 --> 00:09:31.530 So, it's certainly quite possible 248 00:09:31.530 --> 00:09:33.840 that mom could be found negligent 249 00:09:33.840 --> 00:09:36.180 through a DCF investigation. 250 00:09:36.180 --> 00:09:37.920 But these facts, 251 00:09:37.920 --> 00:09:41.430 the timing of the Clinical & Support Options mandated report 252 00:09:41.430 --> 00:09:43.260 strongly suggests, and of course, 253 00:09:43.260 --> 00:09:45.450 we all know that we have to make Dwyer showings 254 00:09:45.450 --> 00:09:47.250 without having seen the records, 255 00:09:47.250 --> 00:09:49.920 strongly supports the factual inference 256 00:09:49.920 --> 00:09:52.102 that this was a discussion of a sexual assault. 257 00:09:52.102 --> 00:09:53.790 Right, and that that's really the linchpin, 258 00:09:53.790 --> 00:09:56.449 is whether there was discussion of the sexual assault 259 00:09:56.449 --> 00:09:58.650 to bind for inconsistent statements 260 00:09:58.650 --> 00:10:00.075 or consistent statements, correct? 261 00:10:00.075 --> 00:10:00.960 [Attorney Schnipper] I agree with that. 262 00:10:00.960 --> 00:10:05.960 All right, that has to be shown through the 51B, right? 263 00:10:08.340 --> 00:10:10.320 Well, I just think that the fact that the 50... 264 00:10:10.320 --> 00:10:13.470 I mean, because again, what's the stage of the prosecution? 265 00:10:13.470 --> 00:10:16.410 There's been an indictment, we're in the criminal process, 266 00:10:16.410 --> 00:10:18.270 so obviously, you know- 267 00:10:18.270 --> 00:10:22.200 But like in this case you have a 51B that says something, 268 00:10:22.200 --> 00:10:25.230 you have a SAIN interview, you get all the SAIN tapes, 269 00:10:25.230 --> 00:10:27.300 or if there's still tapes, I don't know, 270 00:10:27.300 --> 00:10:29.425 you get all the SAIN information, right? 271 00:10:29.425 --> 00:10:30.258 [Attorney Schnipper] Sure. 272 00:10:30.258 --> 00:10:31.230 And you get the police reports. 273 00:10:31.230 --> 00:10:32.615 So you have a basis of- 274 00:10:32.615 --> 00:10:34.110 But there's a significant amounts of information 275 00:10:34.110 --> 00:10:35.057 that's already been provided. 276 00:10:35.057 --> 00:10:35.890 Right. Right, 277 00:10:35.890 --> 00:10:37.410 but that doesn't really get to the question. 278 00:10:37.410 --> 00:10:38.790 And one of the things that's so, I think, 279 00:10:38.790 --> 00:10:40.887 crucial about this case, you know, 280 00:10:40.887 --> 00:10:43.770 and this place is in contrast to the mine run of cases 281 00:10:43.770 --> 00:10:45.120 where we talk about, you know, 282 00:10:45.120 --> 00:10:47.310 you're not just entitled to to Dwyer material 283 00:10:47.310 --> 00:10:49.230 simply because someone alleges sexual assault 284 00:10:49.230 --> 00:10:50.370 and then is referred to a therapist. 285 00:10:50.370 --> 00:10:52.320 This isn't a referral to a therapist. 286 00:10:52.320 --> 00:10:55.320 This is a journey into custodial mental health care 287 00:10:55.320 --> 00:10:57.960 for the two weeks following your initial report, 288 00:10:57.960 --> 00:11:00.030 which means, and of course this is a case 289 00:11:00.030 --> 00:11:03.900 in which the only defense is fabrication, 290 00:11:03.900 --> 00:11:06.660 that means that demeanor and state of mind evidence 291 00:11:06.660 --> 00:11:09.660 related to whether an alleged victim may be fabricating, 292 00:11:09.660 --> 00:11:10.530 may not be fabricating, 293 00:11:10.530 --> 00:11:13.710 the Commonwealth presumably will seek to introduce evidence 294 00:11:13.710 --> 00:11:16.470 of her distress and mental health issues 295 00:11:16.470 --> 00:11:17.490 in the immediate aftermath 296 00:11:17.490 --> 00:11:19.470 to show that her complaint is legitimate. 297 00:11:19.470 --> 00:11:21.870 That's a legitimate use under the court's case law 298 00:11:21.870 --> 00:11:23.220 of that behavioral evidence. 299 00:11:23.220 --> 00:11:24.947 But the defendant is also entitled 300 00:11:24.947 --> 00:11:27.477 to challenge the allegations on the basis of fabrication. 301 00:11:27.477 --> 00:11:29.310 And that is going to be based on demeanor 302 00:11:29.310 --> 00:11:31.560 and state of mind that is reflected, 303 00:11:31.560 --> 00:11:32.460 primarily in the way 304 00:11:32.460 --> 00:11:33.960 she's discussing the alleged assault. 305 00:11:33.960 --> 00:11:36.540 And the only evidence of these discussions 306 00:11:36.540 --> 00:11:39.120 is going to be contained, it will have been produced 307 00:11:39.120 --> 00:11:41.670 during this period of therapeutic custodial care. 308 00:11:41.670 --> 00:11:43.410 So, there really isn't any other. 309 00:11:43.410 --> 00:11:45.630 So, I think that makes us much stronger. 310 00:11:45.630 --> 00:11:47.430 But you have to get beyond the case law 311 00:11:47.430 --> 00:11:50.520 that says that the mere fact of treatment 312 00:11:50.520 --> 00:11:52.740 doesn't satisfy Dwyer-Lampron, correct? 313 00:11:52.740 --> 00:11:54.780 That's right, and I think we are well beyond that, 314 00:11:54.780 --> 00:11:56.820 because not only of the time period 315 00:11:56.820 --> 00:11:58.980 in which custodial treatment is occurring, 316 00:11:58.980 --> 00:12:01.590 but we have the fact that we have a transmission 317 00:12:01.590 --> 00:12:02.760 from a mandated reporter 318 00:12:02.760 --> 00:12:04.800 directly to the police and prosecutors 319 00:12:04.800 --> 00:12:06.210 that's resulted in an indictment. 320 00:12:06.210 --> 00:12:08.130 Is your position different 321 00:12:08.130 --> 00:12:11.310 for any of the four providers? 322 00:12:11.310 --> 00:12:13.620 It definitely is the same for the first three, 323 00:12:13.620 --> 00:12:15.960 meaning the Cooley Dickinson Emergency- 324 00:12:15.960 --> 00:12:18.930 But Cooley, was there a 51A? 325 00:12:18.930 --> 00:12:21.300 No, there wasn't. So perhaps then, they're out. 326 00:12:21.300 --> 00:12:22.133 But on the other hand, 327 00:12:22.133 --> 00:12:25.050 that is the context in which the initial report occurs. 328 00:12:25.050 --> 00:12:27.870 And it's also not in any way clear just how fast 329 00:12:27.870 --> 00:12:31.283 and what the connection is between Cooley Dickinson and CSO. 330 00:12:31.283 --> 00:12:32.430 So, CSO and Cooley, 331 00:12:32.430 --> 00:12:34.860 those are physically located very close to each other, 332 00:12:34.860 --> 00:12:38.220 and then, so how fast a person goes from one to the other... 333 00:12:38.220 --> 00:12:40.290 You know, what I think is interesting 334 00:12:40.290 --> 00:12:43.020 is that there is no mandated report recited 335 00:12:43.020 --> 00:12:44.130 from Cambridge Hospital, 336 00:12:44.130 --> 00:12:45.957 but that's where she goes immediately for the treatment. 337 00:12:45.957 --> 00:12:48.240 The results from the mandated- 338 00:12:48.240 --> 00:12:51.390 So, the first two 51A reports are filed? 339 00:12:51.390 --> 00:12:52.410 Well, the last 51A 340 00:12:52.410 --> 00:12:54.090 is actually from the Northeast Center 341 00:12:54.090 --> 00:12:55.128 for Children and Families- Right, so the only 51A- 342 00:12:55.128 --> 00:12:56.130 which is the (indistinct) 343 00:12:56.130 --> 00:12:57.600 therapy provider. The only 51As 344 00:12:57.600 --> 00:12:59.237 are (indistinct) by CSO and Northeast, right? 345 00:12:59.237 --> 00:13:01.140 That's correct. Okay. 346 00:13:01.140 --> 00:13:02.220 And so to me, 347 00:13:02.220 --> 00:13:04.560 that might put those two in a different position, 348 00:13:04.560 --> 00:13:08.970 although the Northeast request is entirely too broad. 349 00:13:08.970 --> 00:13:10.020 Would you agree with that? It's pretty broad, 350 00:13:10.020 --> 00:13:10.853 but I think 351 00:13:10.853 --> 00:13:13.200 that some period predating the allegations is appropriate 352 00:13:13.200 --> 00:13:15.540 because I think a substantial issue at this trial 353 00:13:15.540 --> 00:13:17.790 is going to be whether these allegations 354 00:13:17.790 --> 00:13:20.280 are themselves manifestations of preexisting conditions, 355 00:13:20.280 --> 00:13:21.113 because of course, 356 00:13:21.113 --> 00:13:23.610 counsel does recite two other crisis events 357 00:13:23.610 --> 00:13:24.690 in the preceding year. 358 00:13:24.690 --> 00:13:26.880 And that's, so I mean, if you wanna go six months back, 359 00:13:26.880 --> 00:13:29.400 I think it's appropriate to go some amount of time back 360 00:13:29.400 --> 00:13:33.944 so that you contextualize the mandated report treatment 361 00:13:33.944 --> 00:13:35.190 that produces that 362 00:13:35.190 --> 00:13:36.450 to what was going on. So, six months back 363 00:13:36.450 --> 00:13:37.283 for Northeast? 364 00:13:37.283 --> 00:13:38.490 I mean, I think that's fair. 365 00:13:38.490 --> 00:13:40.500 Okay, and then not Cambridge Hospital 366 00:13:40.500 --> 00:13:42.390 'cause there's no 51A from them. 367 00:13:42.390 --> 00:13:45.810 CSO, yes, 'cause there is a 51A. And not Cooley. 368 00:13:45.810 --> 00:13:47.580 Well, I don't think it's appropriate, frankly, 369 00:13:47.580 --> 00:13:51.180 to treat Cambridge Hospital and CSOs as completely separate, 370 00:13:51.180 --> 00:13:53.160 because what happens is there's the crisis evaluation 371 00:13:53.160 --> 00:13:54.330 and the transmittal, 372 00:13:54.330 --> 00:13:57.069 so there very well may be, basically it's one 51A. 373 00:13:57.069 --> 00:13:57.902 But where is the evidence 374 00:13:57.902 --> 00:13:59.793 You made statements in the initial crisis? 375 00:14:00.630 --> 00:14:03.420 It's the fact that it was reported to DCF. 376 00:14:03.420 --> 00:14:05.004 So, I mean- By the CSO. 377 00:14:05.004 --> 00:14:05.837 By the CSO. 378 00:14:05.837 --> 00:14:06.870 CSO, right. All right, 379 00:14:06.870 --> 00:14:07.980 so baby steps, right? 380 00:14:07.980 --> 00:14:11.817 CSO actually did a 51A, and Northeast actually did a 51A, 381 00:14:11.817 --> 00:14:13.920 and you want six months back. 382 00:14:13.920 --> 00:14:14.753 Sure. 383 00:14:14.753 --> 00:14:15.937 And there's certainly nothing wrong with saying, 384 00:14:15.937 --> 00:14:17.400 "Those are appropriately granted. 385 00:14:17.400 --> 00:14:19.050 Take a look at those, go back to the court 386 00:14:19.050 --> 00:14:20.190 and make a second showing." 387 00:14:20.190 --> 00:14:21.150 I mean, that is fine. 388 00:14:21.150 --> 00:14:22.530 And I think one thing that, 389 00:14:22.530 --> 00:14:23.874 because going back- Why six months? 390 00:14:23.874 --> 00:14:24.899 I'm confused. 391 00:14:24.899 --> 00:14:27.420 Six months is just plucked out of the air, 392 00:14:27.420 --> 00:14:30.630 'cause I mean, the trial judge allows 393 00:14:30.630 --> 00:14:35.310 from January 2019 to December 2020, 394 00:14:35.310 --> 00:14:37.410 the end of December 2021, 395 00:14:37.410 --> 00:14:40.200 why would six months be legitimate? 396 00:14:40.200 --> 00:14:43.050 Because there's a period of a year that's described, 397 00:14:43.050 --> 00:14:44.610 a year preceding this alleged assault 398 00:14:44.610 --> 00:14:47.527 that's described in counsel's affidavit that basically says, 399 00:14:47.527 --> 00:14:49.320 "During this period, she was dealing 400 00:14:49.320 --> 00:14:51.270 with all these other behavioral and mental health issues, 401 00:14:51.270 --> 00:14:53.070 and there were two other crisis events." 402 00:14:53.070 --> 00:14:55.890 So I think it's an important consideration for the defense 403 00:14:55.890 --> 00:14:58.500 whether the behavior that, and we don't actually know 404 00:14:58.500 --> 00:14:59.940 whether those crisis events were related 405 00:14:59.940 --> 00:15:02.640 to allegations of sexual assault right now or not, 406 00:15:02.640 --> 00:15:04.740 but assuming that they may have been, 407 00:15:04.740 --> 00:15:07.110 what we wanna to know is were there prior allegations 408 00:15:07.110 --> 00:15:08.820 that were unsubstantiated? 409 00:15:08.820 --> 00:15:11.910 Is there a basis for claiming fabrication in these records? 410 00:15:11.910 --> 00:15:13.565 So, there's some amount of time, 411 00:15:13.565 --> 00:15:17.010 in the mental health context, preceding the allegations. 412 00:15:17.010 --> 00:15:18.420 I think that's appropriate. 413 00:15:18.420 --> 00:15:21.330 Counsel, isn't that pretty close to just speculation 414 00:15:21.330 --> 00:15:26.330 on the fact of receiving mental health care equals evidence? 415 00:15:26.970 --> 00:15:29.220 I don't think it is when you're in a situation 416 00:15:29.220 --> 00:15:31.320 where like the mental health distress 417 00:15:31.320 --> 00:15:33.600 is such a part of the situation 418 00:15:33.600 --> 00:15:35.670 in which the allegations arose in the first- 419 00:15:35.670 --> 00:15:38.160 I understand that argument with respect to the incidents 420 00:15:38.160 --> 00:15:40.020 that we're talking about, the incidents at issue here, 421 00:15:40.020 --> 00:15:43.080 but I'm talking about the two crises that were in the past. 422 00:15:43.080 --> 00:15:46.020 Is there anything beyond sheer speculation 423 00:15:46.020 --> 00:15:47.280 that those may have had to do 424 00:15:47.280 --> 00:15:49.770 with some other allegation by this victim? 425 00:15:49.770 --> 00:15:52.320 Well, the only thing that's beyond sheer speculation 426 00:15:52.320 --> 00:15:54.870 is that the victim's mother says, 427 00:15:54.870 --> 00:15:56.610 you know, according to counsel's affidavit, 428 00:15:56.610 --> 00:15:58.020 the victim's mother attributes 429 00:15:58.020 --> 00:16:00.810 the runaway and suicidal ideation to all these other- 430 00:16:00.810 --> 00:16:02.250 No, she specifically attributed 431 00:16:02.250 --> 00:16:04.770 to her premenstrual dysphoric disorder, 432 00:16:04.770 --> 00:16:08.070 which has nothing to do with allegations of sexual abuse. 433 00:16:08.070 --> 00:16:09.300 Well, I'm not suggesting they do, 434 00:16:09.300 --> 00:16:11.940 but what I'm saying is that the initial concern 435 00:16:11.940 --> 00:16:13.290 is that all this behavioral stuff 436 00:16:13.290 --> 00:16:15.210 is related to something else 437 00:16:15.210 --> 00:16:17.580 other than a sexual assault, right? 438 00:16:17.580 --> 00:16:20.670 So it's quite possible that that's the case. 439 00:16:20.670 --> 00:16:21.870 Right, that's quite possible 440 00:16:21.870 --> 00:16:23.760 that that's the basis of a defense? 441 00:16:23.760 --> 00:16:26.640 And the only way to understand that is to contextualize 442 00:16:26.640 --> 00:16:31.323 that with some access to the records from that provider. 443 00:16:32.821 --> 00:16:34.020 I see I'm over time, 444 00:16:34.020 --> 00:16:35.880 but I do wanna quickly make the point 445 00:16:35.880 --> 00:16:40.880 that finding that a 51A to a 51B to an indictment 446 00:16:40.890 --> 00:16:43.590 basically satisfies the requirement 447 00:16:43.590 --> 00:16:45.210 for a summons under Dwyer 448 00:16:45.210 --> 00:16:48.720 is not some sort of massive setting aside 449 00:16:48.720 --> 00:16:52.380 of legislative priorities of confidentiality and privilege, 450 00:16:52.380 --> 00:16:53.213 for two reasons. 451 00:16:53.213 --> 00:16:55.410 One, obviously the legislature more or less intended it, 452 00:16:55.410 --> 00:16:59.670 but second, this entire case has been argued by both sides, 453 00:16:59.670 --> 00:17:02.010 frankly, except I'm a little bit less responsible 454 00:17:02.010 --> 00:17:04.320 for this on Lampron grounds. 455 00:17:04.320 --> 00:17:05.613 But there's Dwyer, right? 456 00:17:06.521 --> 00:17:11.521 There's a stringent and quite threatening protective order 457 00:17:11.670 --> 00:17:12.810 that counsel has to sign 458 00:17:12.810 --> 00:17:15.930 before counsel can go into a room all by him or herself 459 00:17:15.930 --> 00:17:16.980 and look at these records, right? 460 00:17:16.980 --> 00:17:18.300 And if you mess around 461 00:17:18.300 --> 00:17:20.580 under the terms of that protective order, 462 00:17:20.580 --> 00:17:21.990 you're reported for bar discipline. 463 00:17:21.990 --> 00:17:23.100 and you also have discourse, 464 00:17:23.100 --> 00:17:26.250 have your underlying ethical obligations to think about. 465 00:17:26.250 --> 00:17:29.490 Two additional judicial findings in the Superior Court 466 00:17:29.490 --> 00:17:31.860 are required before there's even a possibility 467 00:17:31.860 --> 00:17:33.960 that these materials can be used at trial. 468 00:17:33.960 --> 00:17:36.480 Those are meaningful and substantial protections 469 00:17:36.480 --> 00:17:38.850 for confidentiality and privilege purposes. 470 00:17:38.850 --> 00:17:42.900 And the fact is that if a defendant fails to show relevance, 471 00:17:42.900 --> 00:17:44.100 it's over. 472 00:17:44.100 --> 00:17:45.930 If a defendant satisfies relevance, 473 00:17:45.930 --> 00:17:48.450 it's one of the multiple steps that might end up 474 00:17:48.450 --> 00:17:49.890 with trial use of these materials. 475 00:17:49.890 --> 00:17:51.510 And I do think that's important 476 00:17:51.510 --> 00:17:53.790 when the court thinks about how Dwyer plays out 477 00:17:53.790 --> 00:17:54.750 in the Superior Court. 478 00:17:54.750 --> 00:17:55.950 Because you know, 479 00:17:55.950 --> 00:17:58.650 the defendant's leaning on constitutional rights here. 480 00:17:58.650 --> 00:18:01.380 and the fact that these protections don't end 481 00:18:01.380 --> 00:18:02.580 upon a showing of relevance, 482 00:18:02.580 --> 00:18:05.100 I just think favors summonsing them. 483 00:18:05.100 --> 00:18:06.750 and then letting a Superior Court judge 484 00:18:06.750 --> 00:18:08.587 who deals with these every day, say, 485 00:18:08.587 --> 00:18:10.470 "Oh, you know, okay, counsel, you've had a look, 486 00:18:10.470 --> 00:18:13.830 now do you have a showing to make about trial use or not?" 487 00:18:13.830 --> 00:18:14.663 And I mean, 488 00:18:14.663 --> 00:18:17.190 that is the protection that the court has imposed 489 00:18:17.190 --> 00:18:19.470 for purposes of privilege records, right? 490 00:18:19.470 --> 00:18:21.750 Lampron applies to anything, you know- 491 00:18:21.750 --> 00:18:24.660 I mean, a negligence suit related to premises liability 492 00:18:24.660 --> 00:18:27.060 by a third party contractor, right? 493 00:18:27.060 --> 00:18:28.650 You don't have the privilege mechanisms there, 494 00:18:28.650 --> 00:18:31.050 but you have the same 17 A2 showing. 495 00:18:31.050 --> 00:18:33.150 Do you have a proposed definition 496 00:18:33.150 --> 00:18:35.730 or understanding of the term evidentiary 497 00:18:35.730 --> 00:18:38.370 in the phrase evidentiary and relevant? 498 00:18:38.370 --> 00:18:41.520 Sure. I mean, availability for use at trial. 499 00:18:41.520 --> 00:18:43.770 I mean, as the Superior Court judge says, 500 00:18:43.770 --> 00:18:46.560 these are medical records that generally are admissible. 501 00:18:46.560 --> 00:18:50.400 Obviously, statements of an alleged victim about a crime 502 00:18:50.400 --> 00:18:52.440 are admissible largely as of right, 503 00:18:52.440 --> 00:18:54.450 at least for impeachment purposes. 504 00:18:54.450 --> 00:18:57.510 And you have records that are very highly likely 505 00:18:57.510 --> 00:19:00.090 to contain demeanor evidence to be highly relevant 506 00:19:00.090 --> 00:19:01.830 to a showing of potential fabrication. 507 00:19:01.830 --> 00:19:03.660 So I think all those make them both 508 00:19:03.660 --> 00:19:06.094 evidentiary and relevant. 509 00:19:06.094 --> 00:19:08.943 It's not just admissible, it's not just admissibility? 510 00:19:10.350 --> 00:19:12.690 Well, I mean, I think evidentiary and relevant, 511 00:19:12.690 --> 00:19:15.873 kind of when you add those together, you get admissibility. 512 00:19:17.280 --> 00:19:19.383 Okay, thank you. Thank you very much. 513 00:19:21.570 --> 00:19:24.000 Attorney (indistinct) 514 00:19:32.730 --> 00:19:34.800 Chief Justice and Associate Justices, 515 00:19:34.800 --> 00:19:35.940 may I please the court? 516 00:19:35.940 --> 00:19:37.560 My name is as (indistinct) 517 00:19:37.560 --> 00:19:39.210 and together with my colleagues, 518 00:19:39.210 --> 00:19:41.281 Matthew Knowles and David Gachioch, 519 00:19:41.281 --> 00:19:44.010 I represent AR, the victim in this case. 520 00:19:44.010 --> 00:19:44.910 And there are two things 521 00:19:44.910 --> 00:19:47.070 that we're asking the court to do here today 522 00:19:47.070 --> 00:19:48.255 to preserve the delicate balance 523 00:19:48.255 --> 00:19:51.540 that the court set when it established Lampron-Dwyer. 524 00:19:51.540 --> 00:19:54.060 The first is to affirm Justice George's ruling. 525 00:19:54.060 --> 00:19:56.850 Here, there's no dispute that the motion 526 00:19:56.850 --> 00:19:59.910 that Sapee filed before the Superior Court was deficient. 527 00:19:59.910 --> 00:20:01.470 You heard Sapee's counsel, 528 00:20:01.470 --> 00:20:02.880 he does not defend those motions 529 00:20:02.880 --> 00:20:05.700 based on the record he presented to the Superior Court, 530 00:20:05.700 --> 00:20:07.770 nor does he defend the Superior Court's reasoning. 531 00:20:07.770 --> 00:20:09.390 So, affirming Justice George's here 532 00:20:09.390 --> 00:20:11.550 is easy and straightforward to do. 533 00:20:11.550 --> 00:20:13.290 The second thing, your Honor, 534 00:20:13.290 --> 00:20:16.350 is when affirming Justice George's decision, 535 00:20:16.350 --> 00:20:19.500 the court should explicitly reject 536 00:20:19.500 --> 00:20:21.000 Sapee's troubling argument 537 00:20:21.000 --> 00:20:24.000 that the mere statement of a sexual assault 538 00:20:24.000 --> 00:20:27.420 to a mental health provider in a Section 51A report 539 00:20:27.420 --> 00:20:29.910 is sufficient reason alone to allow records 540 00:20:29.910 --> 00:20:32.520 to become accessible under Lampron-Dwyer. 541 00:20:32.520 --> 00:20:36.030 It is imperative that the court reject this argument 542 00:20:36.030 --> 00:20:38.640 as it is not supported under this court's case law. 543 00:20:38.640 --> 00:20:40.560 And if the opposite were true, 544 00:20:40.560 --> 00:20:43.410 it would mean that no child would ever have access 545 00:20:43.410 --> 00:20:46.260 to confidential treatment after being raped. 546 00:20:46.260 --> 00:20:50.340 Our case law says, or does it say, 547 00:20:50.340 --> 00:20:54.930 that if psychiatric records or therapeutic records 548 00:20:54.930 --> 00:20:59.930 include a description of the sexual assault by the victim, 549 00:21:01.290 --> 00:21:05.460 then that is grounds for relevance in admissibility, 550 00:21:05.460 --> 00:21:06.293 correct? 551 00:21:06.293 --> 00:21:09.240 I think- Or it satisfies Rule 17? 552 00:21:09.240 --> 00:21:11.730 I actually think that what the case law says 553 00:21:11.730 --> 00:21:14.190 is that it requires more than just the mere statement. 554 00:21:14.190 --> 00:21:16.140 And I have two examples on this. 555 00:21:16.140 --> 00:21:18.060 So, LeBron, for example, 556 00:21:18.060 --> 00:21:20.970 is one instance in which the court has allowed defendants 557 00:21:20.970 --> 00:21:22.410 to access those records. 558 00:21:22.410 --> 00:21:25.380 In LeBron, just for quick context there, 559 00:21:25.380 --> 00:21:28.860 the defendant sought to seek a broad set of records 560 00:21:28.860 --> 00:21:30.600 as defendant is seeking here. 561 00:21:30.600 --> 00:21:32.880 And when the Superior Court denied it, 562 00:21:32.880 --> 00:21:34.620 and then there was trial and he was convicted, 563 00:21:34.620 --> 00:21:38.389 he filed a motion after trial with the Appeals Court, 564 00:21:38.389 --> 00:21:41.580 saying that essentially just because there was a statement 565 00:21:41.580 --> 00:21:43.830 that the victim had made to a psychologist, 566 00:21:43.830 --> 00:21:45.150 that was sufficient of a reason 567 00:21:45.150 --> 00:21:46.380 to allow the records to come in. 568 00:21:46.380 --> 00:21:48.510 The Appeals Court said the mere fact 569 00:21:48.510 --> 00:21:51.360 that a statement exists is not sufficient reason. 570 00:21:51.360 --> 00:21:52.800 So what the defendant did there 571 00:21:52.800 --> 00:21:55.410 when filing his brief before this full court, 572 00:21:55.410 --> 00:21:57.780 was to actually narrow the set of documents 573 00:21:57.780 --> 00:22:01.080 and include allegations of all the inconsistencies 574 00:22:01.080 --> 00:22:03.540 that the victim had previously done in that case. 575 00:22:03.540 --> 00:22:04.920 And that is the only reason 576 00:22:04.920 --> 00:22:07.080 that the court allowed those records to come in, 577 00:22:07.080 --> 00:22:08.490 because of inconsistencies. 578 00:22:08.490 --> 00:22:09.540 But let me ask, 579 00:22:09.540 --> 00:22:13.380 'cause that was what caused William Lampron and Dwyer 580 00:22:13.380 --> 00:22:16.620 under the Stockham-Bishop Protocol. 581 00:22:16.620 --> 00:22:19.987 Judges would get records, and they would say, 582 00:22:19.987 --> 00:22:23.070 "Complainant said A, B, and C," 583 00:22:23.070 --> 00:22:23.977 and then the judge would say, 584 00:22:23.977 --> 00:22:28.680 "Well, I don't know what's out there because, you know, 585 00:22:28.680 --> 00:22:31.743 I don't know it's consistent, inconsistent. 586 00:22:32.641 --> 00:22:34.890 This is an impossible task." 587 00:22:34.890 --> 00:22:37.680 That made us move to Lampron-Dwyer 588 00:22:37.680 --> 00:22:41.490 where the defense attorneys could articulate better 589 00:22:41.490 --> 00:22:43.080 than the need for records 590 00:22:43.080 --> 00:22:45.720 or what the universe of records is. 591 00:22:45.720 --> 00:22:47.280 So, you're trying to take us back 592 00:22:47.280 --> 00:22:50.070 to Stockham and Bishop by that, right? 593 00:22:50.070 --> 00:22:52.620 I'm not Justice Gaziano, and here's why. 594 00:22:52.620 --> 00:22:55.380 So, here it's not, first of all, 595 00:22:55.380 --> 00:22:57.210 this is not an impossible standard to be met. 596 00:22:57.210 --> 00:23:00.510 As I mentioned, LeBron came after Lampron-Dwyer, 597 00:23:00.510 --> 00:23:03.090 and there are instances in which defendants can establish 598 00:23:03.090 --> 00:23:04.410 a showing to access records. 599 00:23:04.410 --> 00:23:05.670 This is just not that case. 600 00:23:05.670 --> 00:23:10.170 And here's why, we do actually know what my client has said. 601 00:23:10.170 --> 00:23:13.920 So, as Sapee's counsel noted, 602 00:23:13.920 --> 00:23:17.190 the 51A reports require a broad array of information. 603 00:23:17.190 --> 00:23:19.693 It requires that the mandated reporter 604 00:23:19.693 --> 00:23:24.330 indicate the identification of who caused the rape, 605 00:23:24.330 --> 00:23:26.520 identify the circumstances under which the rape occurred. 606 00:23:26.520 --> 00:23:28.830 And here, if you look at the 51A report, 607 00:23:28.830 --> 00:23:31.230 it actually shows the opposite 608 00:23:31.230 --> 00:23:32.910 of what Sapee is seeking to show here. 609 00:23:32.910 --> 00:23:35.730 It shows that my client has been entirely credible, 610 00:23:35.730 --> 00:23:37.560 because in the mandated report, 611 00:23:37.560 --> 00:23:40.053 it indicates that she met him on September 4th, 612 00:23:41.220 --> 00:23:43.440 that he took her to two different locations, 613 00:23:43.440 --> 00:23:46.200 that they met on Snapchat and communicated via there 614 00:23:46.200 --> 00:23:47.280 that he raped her. 615 00:23:47.280 --> 00:23:50.100 And then, when she disclosed this to her friends, 616 00:23:50.100 --> 00:23:52.170 she indicated that her friends said 617 00:23:52.170 --> 00:23:54.000 that they had the same experience with him. 618 00:23:54.000 --> 00:23:55.692 So this is not a mistaken identity issue 619 00:23:55.692 --> 00:23:59.430 or an issue in which my client has invented things 620 00:23:59.430 --> 00:24:01.050 or recanted things. 621 00:24:01.050 --> 00:24:04.443 That's for the trial. That's the ultimate call. 622 00:24:05.580 --> 00:24:07.200 Are there cases... 623 00:24:07.200 --> 00:24:10.320 I just, again, I'm not as familiar with this area 624 00:24:10.320 --> 00:24:11.550 as some of my other colleagues. 625 00:24:11.550 --> 00:24:14.696 Are there cases in which we have a 51A, 626 00:24:14.696 --> 00:24:17.610 51B report of an assault 627 00:24:17.610 --> 00:24:19.920 where it wasn't allowed to be turned over? 628 00:24:19.920 --> 00:24:21.210 That particular part of it? 629 00:24:21.210 --> 00:24:23.340 I understand it can include, like this, 630 00:24:23.340 --> 00:24:25.560 all kinds of stuff that's obviously, 631 00:24:25.560 --> 00:24:29.250 should not have been turned over and is not eligible for, 632 00:24:29.250 --> 00:24:34.050 but if we said in cases that if you have a 51A, 51B report 633 00:24:34.050 --> 00:24:36.787 that reports the assault, the sexual assault, 634 00:24:36.787 --> 00:24:38.703 that doesn't go to counsel? 635 00:24:39.660 --> 00:24:41.340 So, your Honor, this- Any case. 636 00:24:41.340 --> 00:24:45.060 You actually have not evaluated this question before, 637 00:24:45.060 --> 00:24:46.970 and that is why Sapee presented this 638 00:24:46.970 --> 00:24:50.010 as issue one in his appellate brief, 639 00:24:50.010 --> 00:24:52.740 he's asking the court to weigh in on this issue. 640 00:24:52.740 --> 00:24:55.380 And so there hasn't been that discussion before, 641 00:24:55.380 --> 00:24:59.370 but in Commonwealth v. Jones, one of the issues 642 00:24:59.370 --> 00:25:01.470 that the defendant there was seeking records from 643 00:25:01.470 --> 00:25:03.840 was actually based on a DCF report 644 00:25:03.840 --> 00:25:05.490 that one of his daughters made, 645 00:25:05.490 --> 00:25:08.610 stating that she only remembered one incident 646 00:25:08.610 --> 00:25:10.770 in which her father abused her. 647 00:25:10.770 --> 00:25:14.520 And the defendant was saying that that was alone of a reason 648 00:25:14.520 --> 00:25:16.170 for him to access those records. 649 00:25:16.170 --> 00:25:17.370 But this court said, 650 00:25:17.370 --> 00:25:19.800 and this was again under Lampron-Dwyer standard, 651 00:25:19.800 --> 00:25:22.980 that it was entirely speculative, 652 00:25:22.980 --> 00:25:25.440 and that he wasn't showing a particular allegation, 653 00:25:25.440 --> 00:25:27.180 which is the same instance here. 654 00:25:27.180 --> 00:25:28.013 Yeah, I just, 655 00:25:28.013 --> 00:25:29.640 I think you're gonna have to come to terms 656 00:25:29.640 --> 00:25:30.767 with the harder question. 657 00:25:30.767 --> 00:25:32.160 Yes. 658 00:25:32.160 --> 00:25:34.168 Justice George is... 659 00:25:34.168 --> 00:25:35.880 There's not gonna be a abuse of discretion 660 00:25:35.880 --> 00:25:38.280 given the breadth of this and the lack of analysis 661 00:25:38.280 --> 00:25:39.210 by the trial judge, 662 00:25:39.210 --> 00:25:42.573 but we have more difficult questions to answer, right? 663 00:25:43.890 --> 00:25:45.183 Help us out here. 664 00:25:46.620 --> 00:25:51.450 When we have reports, can we really exclude them? 665 00:25:51.450 --> 00:25:54.030 I mean, I'm just trying to understand, 666 00:25:54.030 --> 00:25:56.430 'cause we can't make the ultimate credibility finding 667 00:25:56.430 --> 00:25:59.190 that you want us to do at this stage. 668 00:25:59.190 --> 00:26:02.193 Particularly, defense counsel doesn't know what they said. 669 00:26:03.720 --> 00:26:05.640 Your Honor, so two things to that point. 670 00:26:05.640 --> 00:26:08.640 We're not excluding the 51S reports, he has access to 'em. 671 00:26:08.640 --> 00:26:11.580 We're just excluding the four mental health records 672 00:26:11.580 --> 00:26:13.230 that he's seeking on the basis of those, 673 00:26:13.230 --> 00:26:14.610 of Section 51A report. 674 00:26:14.610 --> 00:26:17.670 So this is just like any other request for- 675 00:26:17.670 --> 00:26:20.760 The statements within that aspect of it, 676 00:26:20.760 --> 00:26:23.310 within the counseling. 677 00:26:23.310 --> 00:26:25.545 So the statements within there, Justice Kafka, 678 00:26:25.545 --> 00:26:27.060 they don't indicate 679 00:26:27.060 --> 00:26:29.790 that there would actually be anything exculpatory there 680 00:26:29.790 --> 00:26:31.350 for the defendant. 681 00:26:31.350 --> 00:26:34.620 And at the end of the day, what is required to establish- 682 00:26:34.620 --> 00:26:38.400 Well, I guess, we don't know. That's the problem. 683 00:26:38.400 --> 00:26:39.630 And actually, one of the problems, 684 00:26:39.630 --> 00:26:43.500 that's why I asked counsel about this, 685 00:26:43.500 --> 00:26:46.290 is we don't know what the, 686 00:26:46.290 --> 00:26:50.280 you folks have the records, you have the 51Bs, 687 00:26:50.280 --> 00:26:51.720 you have the police reports. 688 00:26:51.720 --> 00:26:55.050 We're getting snippets of things, 689 00:26:55.050 --> 00:26:58.830 and ask to draw, you know, conclusions that have, 690 00:26:58.830 --> 00:27:01.200 will affect many, many, many cases. 691 00:27:01.200 --> 00:27:03.630 Which I think counsels for taking this in baby steps 692 00:27:03.630 --> 00:27:06.480 as opposed to making broad proclamations, 693 00:27:06.480 --> 00:27:08.703 both the 51A value. 694 00:27:09.630 --> 00:27:10.680 What's your position? 695 00:27:10.680 --> 00:27:11.700 I think you started out 696 00:27:11.700 --> 00:27:14.350 that we shouldn't decide this 51A issue, 697 00:27:14.350 --> 00:27:16.170 'cause it wasn't raised below. 698 00:27:16.170 --> 00:27:19.110 So, what we're asking the court to do here today 699 00:27:19.110 --> 00:27:24.110 is to allow the Justice George decision to affirm it 700 00:27:24.270 --> 00:27:26.100 and to allow Sapee to file a new motion, 701 00:27:26.100 --> 00:27:29.160 but in so doing, clarifying that the argument 702 00:27:29.160 --> 00:27:31.980 he has raised before the court today is not sufficient. 703 00:27:31.980 --> 00:27:34.860 That's simply because a Section 51A exists, 704 00:27:34.860 --> 00:27:37.660 and there's a mere statement to a mental health provider 705 00:27:38.610 --> 00:27:39.690 of the sexual assault, 706 00:27:39.690 --> 00:27:41.460 that is not alone sufficient of a reason 707 00:27:41.460 --> 00:27:43.050 under this court's case law. 708 00:27:43.050 --> 00:27:44.070 They have to show more. 709 00:27:44.070 --> 00:27:47.820 And here, as Sapee stated, it's a strict liability case. 710 00:27:47.820 --> 00:27:50.760 The only defense that he has is that my client fabricated, 711 00:27:50.760 --> 00:27:51.630 as is mentioned, 712 00:27:51.630 --> 00:27:53.770 Well, wait, here's the problem. 713 00:27:53.770 --> 00:27:57.300 If we have, government may have a very strong case, 714 00:27:57.300 --> 00:27:59.950 they may have Snapchats that show everything, 715 00:27:59.950 --> 00:28:04.230 GPS, I have no idea, again, we're in the dark, 716 00:28:04.230 --> 00:28:08.850 butt if the complainant says that we met at the high school, 717 00:28:08.850 --> 00:28:10.770 and forgive me, I don't know the facts as well as you, 718 00:28:10.770 --> 00:28:11.677 but the complainant says, 719 00:28:11.677 --> 00:28:15.690 "We met at the high school and then went to the McDonald's," 720 00:28:15.690 --> 00:28:18.660 and then there's a 51A therapist report 721 00:28:18.660 --> 00:28:23.040 that says they met at the town library, 722 00:28:23.040 --> 00:28:24.483 then they went to Wendy's. 723 00:28:25.650 --> 00:28:26.483 That's relevant. 724 00:28:26.483 --> 00:28:27.570 And that would be admissible at trial, 725 00:28:27.570 --> 00:28:29.610 and that would be an inconsistent statement, correct? 726 00:28:29.610 --> 00:28:32.280 Under that hypothetical- It could show fabrication. 727 00:28:32.280 --> 00:28:33.900 Under that hypothetical, yes, your Honor. 728 00:28:33.900 --> 00:28:36.857 But here, again, there's no indication of that. 729 00:28:36.857 --> 00:28:38.581 But we don't know. 730 00:28:38.581 --> 00:28:39.414 (chuckles) That's the problem we have. 731 00:28:39.414 --> 00:28:40.763 Well, Justice Gaziano, what I would say to this 732 00:28:40.763 --> 00:28:43.350 is that we do know what could be in the statements 733 00:28:43.350 --> 00:28:47.220 because the 51A reports already require lots of information 734 00:28:47.220 --> 00:28:48.270 to be included there. 735 00:28:48.270 --> 00:28:50.010 So, we actually do know what- 736 00:28:50.010 --> 00:28:51.720 Which doesn't help your argument, 737 00:28:51.720 --> 00:28:54.630 because if the 51A requires the circumstances 738 00:28:54.630 --> 00:28:56.130 of the sexual assault, 739 00:28:56.130 --> 00:28:59.430 that means that the therapist has to get details 740 00:28:59.430 --> 00:29:02.783 of the sexual assault from the complainant witness, correct? 741 00:29:02.783 --> 00:29:03.660 But that means that we already know 742 00:29:03.660 --> 00:29:05.700 what details they did get. 743 00:29:05.700 --> 00:29:08.310 And so the underlying mental health records 744 00:29:08.310 --> 00:29:10.350 would just be more detailed. Are you saying that... 745 00:29:10.350 --> 00:29:13.110 Yes, (chuckles) exactly. 746 00:29:13.110 --> 00:29:15.330 Right, so the underlying mental health records 747 00:29:15.330 --> 00:29:17.370 would have more detail. 748 00:29:17.370 --> 00:29:19.650 And isn't the defendant under our case law 749 00:29:19.650 --> 00:29:21.330 then entitled to that? 750 00:29:21.330 --> 00:29:23.400 No, your Honor. Well, at least entitled 751 00:29:23.400 --> 00:29:26.910 to pass the preliminary showing 752 00:29:26.910 --> 00:29:29.790 in order for defense counsel under the, you know, 753 00:29:29.790 --> 00:29:33.450 confidentiality protective orders of Dwyer, 754 00:29:33.450 --> 00:29:38.250 to look at it and then make an in-camera presentation 755 00:29:38.250 --> 00:29:39.180 to the judge. 756 00:29:39.180 --> 00:29:41.280 No, your Honor, because he has not established 757 00:29:41.280 --> 00:29:43.390 there's actually something relevant there 758 00:29:44.362 --> 00:29:46.800 to prove or disprove an issue material to this case, 759 00:29:46.800 --> 00:29:48.180 which is the relevant standard 760 00:29:48.180 --> 00:29:50.220 that was established in Lampron-Dwyer. 761 00:29:50.220 --> 00:29:51.060 But why not? 762 00:29:51.060 --> 00:29:55.680 If the mandatory reporter believes 763 00:29:55.680 --> 00:29:58.590 that he or she has the information that is necessary 764 00:29:58.590 --> 00:30:00.720 to make the report, 765 00:30:00.720 --> 00:30:03.960 it's not a leap at all to suggest 766 00:30:03.960 --> 00:30:07.050 that the records of that mandatory reporter 767 00:30:07.050 --> 00:30:09.360 contain that information. 768 00:30:09.360 --> 00:30:11.790 So, it's not about whether it contains that information. 769 00:30:11.790 --> 00:30:12.720 Here, there's no dispute 770 00:30:12.720 --> 00:30:15.840 that my client did disclose the sexual assault. 771 00:30:15.840 --> 00:30:18.480 What needs to be shown is that there's something there 772 00:30:18.480 --> 00:30:19.980 more than just a statement. 773 00:30:19.980 --> 00:30:21.180 And here's another example. 774 00:30:21.180 --> 00:30:22.013 Why? 775 00:30:22.013 --> 00:30:27.013 I mean, I'm reading LeBron, and it says, 776 00:30:27.127 --> 00:30:29.970 "Unlike a prior case, Ruggiero, 777 00:30:29.970 --> 00:30:33.420 the defendant in this case alleged, with particularity, 778 00:30:33.420 --> 00:30:34.924 that the complainant's psychological records 779 00:30:34.924 --> 00:30:38.400 contained specific information regarding her complaint 780 00:30:38.400 --> 00:30:39.600 of sexual assault." 781 00:30:39.600 --> 00:30:40.433 Yes, your Honor. 782 00:30:40.433 --> 00:30:42.150 And there the allegations with particularity 783 00:30:42.150 --> 00:30:44.610 were specifically that the victim had previously made 784 00:30:44.610 --> 00:30:46.470 inconsistent statements. 785 00:30:46.470 --> 00:30:47.533 And those statements were videotaped- 786 00:30:47.533 --> 00:30:50.670 But that's not part of the analysis. 787 00:30:50.670 --> 00:30:51.810 I don't see that anywhere. 788 00:30:51.810 --> 00:30:56.370 It's just the particularity that this complainant, 789 00:30:56.370 --> 00:31:00.420 this victim, did not just seek mental health treatment, 790 00:31:00.420 --> 00:31:02.790 which was the prior case, 791 00:31:02.790 --> 00:31:06.600 but that in connection with the mental health treatment, 792 00:31:06.600 --> 00:31:09.610 there were statements made by this victim 793 00:31:10.470 --> 00:31:13.380 of the specific instance of the sexual assault 794 00:31:13.380 --> 00:31:15.960 for which the defendant is being tried. 795 00:31:15.960 --> 00:31:19.682 There's nothing in here about inconsistencies 796 00:31:19.682 --> 00:31:21.660 in the victim statements. 797 00:31:21.660 --> 00:31:23.070 The court does clarify later 798 00:31:23.070 --> 00:31:24.960 that part of the reason why they're granting it 799 00:31:24.960 --> 00:31:27.360 is because the defense has to do with the fabrications 800 00:31:27.360 --> 00:31:30.510 and the prior inconsistent statements that the victim made. 801 00:31:30.510 --> 00:31:32.250 And another case that might be helpful 802 00:31:32.250 --> 00:31:34.050 is Commonwealth v Sealy. 803 00:31:34.050 --> 00:31:36.420 So there, there was a clear indication 804 00:31:36.420 --> 00:31:38.220 that the victim had made a statement 805 00:31:38.220 --> 00:31:42.090 to the Boston Rape Crisis Center about the sexual assault. 806 00:31:42.090 --> 00:31:43.950 She was an undocumented victim. 807 00:31:43.950 --> 00:31:46.890 And so when she made the allegations, 808 00:31:46.890 --> 00:31:49.140 or disclosed the sexual assault, 809 00:31:49.140 --> 00:31:52.170 the rape center referred her to counsel so that she could, 810 00:31:52.170 --> 00:31:57.170 where she expressed her concern that she might be deported 811 00:31:57.366 --> 00:31:58.560 if she disclosed the rape. 812 00:31:58.560 --> 00:31:59.670 And the defendant later 813 00:31:59.670 --> 00:32:02.580 tried to seek access to those records because he was saying 814 00:32:02.580 --> 00:32:04.620 that the only reason she disclosed the rape 815 00:32:04.620 --> 00:32:06.420 to the Boston Rape Crisis Center 816 00:32:06.420 --> 00:32:07.670 was to fabricate it 817 00:32:07.670 --> 00:32:10.140 so that she could ultimately get a U visa. 818 00:32:10.140 --> 00:32:13.260 This court did not allow him to get those records, 819 00:32:13.260 --> 00:32:15.660 even though she clearly made a statement 820 00:32:15.660 --> 00:32:17.130 about the sexual assault. 821 00:32:17.130 --> 00:32:20.190 And one more thing I would like to direct the court to 822 00:32:20.190 --> 00:32:22.950 is footnote 12 in Commonwealth v. Jones. 823 00:32:22.950 --> 00:32:25.830 There the defendant sort of made a similar argument, 824 00:32:25.830 --> 00:32:28.440 where he said, "Well, whether or not a statement is made, 825 00:32:28.440 --> 00:32:31.590 it doesn't matter because those records are relevant 826 00:32:31.590 --> 00:32:33.000 since a sexual assault happened." 827 00:32:33.000 --> 00:32:35.730 And the court said that even if a statement was made, 828 00:32:35.730 --> 00:32:36.600 under footnote 12, 829 00:32:36.600 --> 00:32:39.630 it would render statutory privileges meaningless 830 00:32:39.630 --> 00:32:43.050 because presumably any time a victim speaks 831 00:32:43.050 --> 00:32:45.030 to a rape crisis counselor, 832 00:32:45.030 --> 00:32:46.770 they speak about the sexual assault. 833 00:32:46.770 --> 00:32:49.950 So if we're saying that any time a victim speaks 834 00:32:49.950 --> 00:32:53.670 to a mental health provider, here in this instance, a child, 835 00:32:53.670 --> 00:32:55.410 then a child would never have access 836 00:32:55.410 --> 00:32:56.460 to confidential treatment, 837 00:32:56.460 --> 00:32:59.310 because a mental health provider is obligated 838 00:32:59.310 --> 00:33:02.250 to always create a Section 51A report. 839 00:33:02.250 --> 00:33:04.950 So it simply cannot be that 840 00:33:04.950 --> 00:33:07.140 with this Commonwealth strong public policy in favor 841 00:33:07.140 --> 00:33:09.090 of protecting victims of sexual assault, 842 00:33:09.090 --> 00:33:12.270 we would create a ruling in which children could never seek 843 00:33:12.270 --> 00:33:13.650 confidential mental health treatment. 844 00:33:13.650 --> 00:33:15.390 And that's why it's so important for the court 845 00:33:15.390 --> 00:33:17.220 to reject Sapee's argument. 846 00:33:17.220 --> 00:33:18.240 I see that I'm out of time, 847 00:33:18.240 --> 00:33:20.010 so unless there's any other questions, 848 00:33:20.010 --> 00:33:20.850 we submit on our briefs. 849 00:33:20.850 --> 00:33:22.230 Thank you so much for your time. 850 00:33:22.230 --> 00:33:23.212 Thank you. 851 00:33:23.212 --> 00:33:26.400 (paper rustling) 852 00:33:26.400 --> 00:33:27.970 Attorney Von Flatern. 853 00:33:43.410 --> 00:33:45.570 Good morning, Madam Chief Justice, members of the court. 854 00:33:45.570 --> 00:33:47.820 Cynthia Von Flatter, Assistant District Attorney, 855 00:33:47.820 --> 00:33:50.073 Northwestern District for the Commonwealth. 856 00:33:51.270 --> 00:33:53.100 As your honors can see, 857 00:33:53.100 --> 00:33:55.560 a lot of the trouble with this case started 858 00:33:55.560 --> 00:33:58.890 with the decision from in the trial court 859 00:33:58.890 --> 00:34:01.470 from the motion judge, which was very broad. 860 00:34:01.470 --> 00:34:06.470 And based on affidavits from counsel and motions, 861 00:34:09.660 --> 00:34:12.990 records for treatment providers, that was very vague, 862 00:34:12.990 --> 00:34:17.640 and really merely stated that the records would be relevant 863 00:34:17.640 --> 00:34:19.620 because they would involve 864 00:34:19.620 --> 00:34:22.620 the victim's state of mind at the time of the assault 865 00:34:22.620 --> 00:34:24.210 and at the time of treatment. 866 00:34:24.210 --> 00:34:29.210 And then listed a number of mental health disorders 867 00:34:29.550 --> 00:34:33.750 that AR, the complainant, had had 868 00:34:33.750 --> 00:34:36.090 and that was reported by the mother, 869 00:34:36.090 --> 00:34:37.380 and particularly reporting 870 00:34:37.380 --> 00:34:40.350 the premenstrual dysphoric disorder. 871 00:34:40.350 --> 00:34:43.950 So that decision, it was clear, and I would submit 872 00:34:43.950 --> 00:34:48.630 that the single justices decision memorandum 873 00:34:48.630 --> 00:34:53.530 was very thoughtful and went through all of the reasons 874 00:34:55.380 --> 00:34:58.860 why that motion judge's decision could not stand. 875 00:34:58.860 --> 00:35:01.560 And that decision was without prejudice 876 00:35:01.560 --> 00:35:04.920 so that the attorneys could go back 877 00:35:04.920 --> 00:35:09.920 and make a more specific showing if they decided to. 878 00:35:10.710 --> 00:35:14.122 The Commonwealth submits that the... 879 00:35:14.122 --> 00:35:16.110 (paper rustling) 880 00:35:16.110 --> 00:35:18.512 the attorney in the trial court, 881 00:35:18.512 --> 00:35:21.750 that those attorneys, that their reference 882 00:35:21.750 --> 00:35:25.650 to the DCF report and the police report was very vague. 883 00:35:25.650 --> 00:35:27.150 They never talked specifically 884 00:35:27.150 --> 00:35:30.960 about what was in the 51A or 51B 885 00:35:30.960 --> 00:35:35.580 that would support a decision like this under Lampron-Dwyer. 886 00:35:35.580 --> 00:35:39.570 And then for now appellate counsel to cite 887 00:35:39.570 --> 00:35:44.570 with a little bit more specificity to the 51A report 888 00:35:45.990 --> 00:35:48.890 by Reena (indistinct) from CSO 889 00:35:48.890 --> 00:35:52.350 and the 51B report, the mention 890 00:35:52.350 --> 00:35:55.170 from the Northeast Center for the Youth and Families 891 00:35:55.170 --> 00:35:56.490 is also very vague. 892 00:35:56.490 --> 00:36:00.243 We're not even sure what the reports were. 893 00:36:03.000 --> 00:36:06.463 Does discovery include both the 51A and the 51B 894 00:36:08.610 --> 00:36:11.280 from the reporters, from two reporters? 895 00:36:11.280 --> 00:36:13.290 Your Honor, I have gone through the... 896 00:36:13.290 --> 00:36:17.970 Because again, the defense counsel did not submit it 897 00:36:17.970 --> 00:36:20.670 with their memorandum, and they cite to, 898 00:36:20.670 --> 00:36:22.890 we have discovery from the Commonwealth, 899 00:36:22.890 --> 00:36:26.490 and I have not seen a 51A 900 00:36:26.490 --> 00:36:29.010 from the Northeast Center for Youth and Families. 901 00:36:29.010 --> 00:36:33.120 So there is only that one sentence mentioned in the 51B. 902 00:36:33.120 --> 00:36:37.377 Okay, what about the CSO? 903 00:36:37.377 --> 00:36:39.810 The CSO- Records. 904 00:36:39.810 --> 00:36:43.197 my brother, appellate counsel, cited to the 51A 905 00:36:43.197 --> 00:36:45.420 and the Commonwealth has provided that. 906 00:36:45.420 --> 00:36:47.160 Okay, that was a question I had. 907 00:36:47.160 --> 00:36:49.167 Yes, so the 51A is there. 908 00:36:49.167 --> 00:36:54.167 And I would submit that the 51A is, 909 00:36:54.690 --> 00:36:55.830 the way it is written, 910 00:36:55.830 --> 00:36:58.863 it sounds like that CSO therapist is repeating, 911 00:36:59.730 --> 00:37:02.100 or stating what the mother has said 912 00:37:02.100 --> 00:37:05.612 about what AR said to her. 913 00:37:05.612 --> 00:37:09.810 If it's a second, the subsequent 51B investigation, 914 00:37:09.810 --> 00:37:11.610 where allegedly there's an out, 915 00:37:11.610 --> 00:37:14.190 she says that she was raped, correct? 916 00:37:14.190 --> 00:37:15.930 Yes. Yes. 917 00:37:15.930 --> 00:37:20.070 So, and again, no specificity, 918 00:37:20.070 --> 00:37:24.060 no thought that there was any inconsistency 919 00:37:24.060 --> 00:37:25.680 in what she has reported. 920 00:37:25.680 --> 00:37:29.430 Can you help me out, in prior counsel mentioned Sealy, 921 00:37:29.430 --> 00:37:31.470 which I have in front of me and Lebron, 922 00:37:31.470 --> 00:37:33.270 are those cases inconsistent, 923 00:37:33.270 --> 00:37:37.740 or what do we do with the fact that statements were made? 924 00:37:37.740 --> 00:37:40.270 Is that enough to satisfy Dwyer-Lampron? 925 00:37:41.220 --> 00:37:44.400 As my sister has stated, and they have looked, 926 00:37:44.400 --> 00:37:46.740 the counsel for AR have looked carefully 927 00:37:46.740 --> 00:37:48.570 at those briefs in that case, 928 00:37:48.570 --> 00:37:52.830 and that the record would show in those cases 929 00:37:52.830 --> 00:37:56.610 that there was inconsistent reports 930 00:37:56.610 --> 00:37:58.380 on the part of the victim there. 931 00:37:58.380 --> 00:38:01.530 And I think there is one, we have that language about- 932 00:38:01.530 --> 00:38:02.490 Can I be specific? 933 00:38:02.490 --> 00:38:03.390 'Cause I think... 934 00:38:03.390 --> 00:38:05.610 I'm doing just what Justice Gaziano was doing, 935 00:38:05.610 --> 00:38:07.470 which is reading Sealy and Jones 936 00:38:07.470 --> 00:38:08.610 while we're up on the bench. 937 00:38:08.610 --> 00:38:13.610 But Jones, there's no report. The footnote has the opposite. 938 00:38:13.890 --> 00:38:16.560 The footnote goes on to make this general point, 939 00:38:16.560 --> 00:38:18.180 but there's actually no report 940 00:38:18.180 --> 00:38:21.660 from the victim to the counselor about the sexual assaults. 941 00:38:21.660 --> 00:38:23.370 The opposite, she says... 942 00:38:23.370 --> 00:38:26.850 And then COE, isn't it... 943 00:38:26.850 --> 00:38:28.470 It's the same thing, it's talking about, 944 00:38:28.470 --> 00:38:30.660 I mean, again, I'm reading it while we talk here, 945 00:38:30.660 --> 00:38:34.680 but isn't COE case in which they speak to a lawyer, 946 00:38:34.680 --> 00:38:38.130 not a counselor at the Rape Crisis Center? 947 00:38:38.130 --> 00:38:41.061 And we don't have a report to a counselor 948 00:38:41.061 --> 00:38:43.293 of a sexual assault, do we? 949 00:38:45.840 --> 00:38:47.667 I think the only case with some case law, 950 00:38:47.667 --> 00:38:50.280 and so I think this is sort of an open area, 951 00:38:50.280 --> 00:38:51.570 but would be LeBron, 952 00:38:51.570 --> 00:38:55.440 where the court talks about specific reports 953 00:38:55.440 --> 00:38:57.720 and also mentions inconsistent. 954 00:38:57.720 --> 00:39:00.720 I think there's one mention of inconsistent reports. 955 00:39:00.720 --> 00:39:03.380 So, I would submit that if... 956 00:39:05.610 --> 00:39:06.930 I mean, clearly, 957 00:39:06.930 --> 00:39:09.250 the showing that was made in the trial court 958 00:39:10.798 --> 00:39:12.900 was clearly insufficient. 959 00:39:12.900 --> 00:39:15.060 And I would submit also that it is very important 960 00:39:15.060 --> 00:39:17.220 to know how broad these records were. 961 00:39:17.220 --> 00:39:19.680 We're talking about almost three years of records. 962 00:39:19.680 --> 00:39:22.770 Yeah, that's a non-starter of the last one. 963 00:39:22.770 --> 00:39:23.670 But let me ask you 964 00:39:25.800 --> 00:39:29.220 whether or not the statements are facially inconsistent, 965 00:39:29.220 --> 00:39:31.980 how's a judge to make that determination? 966 00:39:31.980 --> 00:39:35.670 Well, if you have a motion 967 00:39:35.670 --> 00:39:37.740 that goes before the trial judge, 968 00:39:37.740 --> 00:39:40.220 I think he's in a better position to do that. 969 00:39:40.220 --> 00:39:42.780 So if a trial judge gets a... 970 00:39:42.780 --> 00:39:43.613 Forget this case. 971 00:39:43.613 --> 00:39:46.110 So if a trial judge gets a Lampron-Dwyer motion, 972 00:39:46.110 --> 00:39:50.730 and it says that the complainant witness 973 00:39:50.730 --> 00:39:51.930 went to see a therapist, 974 00:39:51.930 --> 00:39:55.620 and the complainant witness described the sexual assault 975 00:39:55.620 --> 00:39:57.090 from the discovery, 976 00:39:57.090 --> 00:39:59.677 is that enough to satisfy the standard? 977 00:40:02.507 --> 00:40:05.687 the, the, the standard? 978 00:40:05.687 --> 00:40:08.790 ADA on this case, that that might be sufficient 979 00:40:08.790 --> 00:40:12.253 for a very short period of records. 980 00:40:12.253 --> 00:40:15.023 Not six months of records, not a a year of record, but- 981 00:40:15.023 --> 00:40:15.990 But at least to get discovery 982 00:40:15.990 --> 00:40:16.950 as to what was said. 983 00:40:16.950 --> 00:40:18.570 What was said. 984 00:40:18.570 --> 00:40:20.850 And you know, you have in all of these cases, 985 00:40:20.850 --> 00:40:24.166 this child has gone for a forensic interview at SAIN, 986 00:40:24.166 --> 00:40:28.422 and so the defendant knows exactly what she's saying. 987 00:40:28.422 --> 00:40:30.330 Well, the point is though, when you get the saying, 988 00:40:30.330 --> 00:40:32.580 they wanna match up what was said earlier 989 00:40:32.580 --> 00:40:34.950 to see if there were inconsistencies of fabrications. 990 00:40:34.950 --> 00:40:39.300 So that might be something arguably 991 00:40:39.300 --> 00:40:40.980 on that specific point, 992 00:40:40.980 --> 00:40:45.000 and that, you know, there's a realization 993 00:40:45.000 --> 00:40:47.643 or a recognition in that perhaps in LeBron 994 00:40:47.643 --> 00:40:49.020 that that could be an issue. 995 00:40:49.020 --> 00:40:50.670 Because of course, 996 00:40:50.670 --> 00:40:55.670 there the defendant is entitled to impeach the witness, 997 00:40:55.920 --> 00:40:56.760 the victim. 998 00:40:56.760 --> 00:40:57.930 Chief, may I ask a question? 999 00:40:57.930 --> 00:40:59.400 Yes, of course. 1000 00:40:59.400 --> 00:41:03.903 What I in essence understand your argument to be is, 1001 00:41:04.800 --> 00:41:06.480 but correct me if I'm wrong, 1002 00:41:06.480 --> 00:41:09.813 is that unless there's a showing of inconsistency, 1003 00:41:13.860 --> 00:41:15.840 it hasn't been demonstrated 1004 00:41:15.840 --> 00:41:20.840 that the information is evidentiary and relevant. 1005 00:41:23.970 --> 00:41:24.803 Am I missing something? 1006 00:41:24.803 --> 00:41:26.223 Well, I think, 1007 00:41:27.118 --> 00:41:30.300 if there has been a showing of inconsistency, I think we- 1008 00:41:30.300 --> 00:41:32.400 Then it meets both. Then it meets both. 1009 00:41:32.400 --> 00:41:34.893 So if that's true, can you help me? 1010 00:41:37.578 --> 00:41:39.660 What's your understanding, or what's your position 1011 00:41:39.660 --> 00:41:41.700 with respect to the meaning of evidentiary 1012 00:41:41.700 --> 00:41:43.023 within that phrase? 1013 00:41:44.970 --> 00:41:46.560 That the defendant would, 1014 00:41:46.560 --> 00:41:50.430 it would make something more likely than not. 1015 00:41:50.430 --> 00:41:52.620 So, if the defendant were going to use it. 1016 00:41:52.620 --> 00:41:56.100 So again, if if you have no showing about inconsistency, 1017 00:41:56.100 --> 00:41:58.620 then I think it's hard to get to relevance, 1018 00:41:58.620 --> 00:42:02.070 but I think, you know, 1019 00:42:02.070 --> 00:42:04.740 I think the court has always been struggling with, 1020 00:42:04.740 --> 00:42:06.900 you know, how is the defendant gonna make this showing? 1021 00:42:06.900 --> 00:42:10.833 That's why we have Lampron-Dwyer as opposed to Fuller. 1022 00:42:13.055 --> 00:42:17.640 But I think it is difficult to get an evidentiary 1023 00:42:17.640 --> 00:42:19.500 to meet the definition of evidence. 1024 00:42:19.500 --> 00:42:21.630 And that's why you get into speculation. 1025 00:42:21.630 --> 00:42:22.463 And there are... 1026 00:42:22.463 --> 00:42:23.760 You know, we have decisions 1027 00:42:23.760 --> 00:42:25.590 that will reject the defendant showing 1028 00:42:25.590 --> 00:42:27.063 because it is speculative. 1029 00:42:28.005 --> 00:42:31.400 And here, you know, they even made a... 1030 00:42:33.260 --> 00:42:34.987 The court, the trial judge said, 1031 00:42:34.987 --> 00:42:37.830 "Well, potential relevance is enough, should be enough." 1032 00:42:37.830 --> 00:42:40.400 Well, that is not the standard. It's relevance. 1033 00:42:40.400 --> 00:42:42.420 It is not potential relevance. 1034 00:42:42.420 --> 00:42:46.713 And that maybe goes to the definition of evidentiary here. 1035 00:42:47.670 --> 00:42:49.140 Are you taking the position 1036 00:42:49.140 --> 00:42:53.133 that evidentiary and relevant is the same as admissible? 1037 00:42:54.900 --> 00:42:55.733 No, your Honor, 1038 00:42:55.733 --> 00:42:58.290 because I think we do have those further steps here 1039 00:42:58.290 --> 00:43:02.593 for counsel to show that it could be- 1040 00:43:03.960 --> 00:43:05.130 Something less than- evidence 1041 00:43:05.130 --> 00:43:08.303 that you never to, that it's admissible. 1042 00:43:08.303 --> 00:43:09.353 [Justice Wolohojian] Thank you.