by Michelle Menken and Christina E. Miller
Recent amendments to Rule 14 of the Massachusetts Rules of Criminal Procedure (MRCP), effective March 1, 2025, clarify “the prosecutor’s absolute duty to disclose exculpatory evidence in a timely manner.” Committee for Public Counsel Services [(CPCS)] v. Attorney General, 480 Mass. 700, 705 (2018). The title of Rule 14 has been changed from “Pretrial Discovery” to “Pretrial Discovery from the Prosecution,” and the rule now focuses exclusively on delineating the material subject to mandatory disclosure under the Rule’s automatic discovery provisions and Brady v. Maryland, 373 U.S. 83 (1963). All other components of the former Rule 14 have been reorganized into new rules Rule 14.1 (Reciprocal Discovery from the Defense), Rule 14.2 (Discovery Procedures), Rule 14.3 (Discovery of Affirmative Defenses; Self Defense and First Aggressor) and Rule 14.4 (Discovery of Mental Health Issues). A few substantive changes were made to those provisions, including to the obligations of defense counsel.
The revisions to Rule 14 will ensure consistency and clarity by codifying the existing common law and emphasizing the prosecution’s expansive disclosure obligations. Additionally, they encourage judicial oversight by providing judges with the power to “inquire of the prosecutor what actions were taken to achieve compliance with this rule.” See MRCP 14(a)(2)(E) (2025 ed.). This article summarizes the most significant alterations and offers guidance about what is expected of the parties. Also provided is a detailed checklist of these expectations.
Overview of the Substantive Changes
The amendments make significant changes to the text concerning prosecutorial responsibilities, with slight changes for defense counsel. Changes that apply to prosecutorial responsibilities fall into three categories: A. definitions, B. inquiries, and C. checklists.
A. Definitions
- “Favorable to the Defense”
The new Rule 14 organizes automatic discovery items into two groups. The first, “investigative materials” (MRCP 14(b)(1) (2025 ed.)), contains essentially1 the same items formerly listed as “mandatory discovery for the defendant.” See MRCP 14(a)(1)(A). The second subcategory is “items and information favorable to the defense.”
Just over 60 years ago, the US Supreme Court ruled in Brady that the prosecution is constitutionally bound to disclose evidence in criminal cases that “would tend to exculpate … or reduce the penalty” of the accused. Brady, 373 U.S. at 88. Years of legal developments have expounded upon the bounds of this obligation, making it clear that exculpatory evidence includes both direct proof of innocence and any information that would benefit the accused at trial or sentencing. See CPCS, 480 Mass. at 730, 732. New Rule 14 reflects these developments by replacing the term “exculpatory evidence” with the term, “items and information favorable to the defense.” It then clarifies the meaning of “favorable to the defense” by specifying a vast array of information that has any tendency to “cast doubt on” any “aspect of guilt” or “credibility or accuracy [of] evidence” or a witness. Also subject to disclosure is information that supports “suppression or exclusion of evidence” or “establishes a defense theory … regardless of whether the defendant has presented such a theory.” Further, any information that mitigates the charges, any aspect of “the defendant’s culpability” or “the sentence” must be disclosed. MRCP 14(b)(2)(B) (2025 ed.).
The new Rule then provides specific examples of information favorable to the defense, with reference to five categories of material commonly encountered in criminal prosecutions: material relating to witnesses the prosecutor may call, material relating to percipient witness regardless of whether they will be called, material relating to expert witnesses, material relating to persons the prosecutor does not plan to call, and material that is inherently exculpatory (see Appendix, checklist). MRCP 14(b)(2)(C) (2025 ed.).
- The “Prosecution Team” Members
The new Rule did not change the fact that specified information must be disclosed if it is in the possession or control of any person under the prosecuting office’s direction and control, or persons who have participated in investigating or evaluating the case and either regularly report to the prosecutor’s office or have done so in the case. MRCP 14(a)(1) (2025 ed.). The new Rule adds a non-exclusive list of individuals who are unquestionably on the prosecution team (see Appendix, checklist). It clarifies that even agents from other jurisdictions, as well as governmental agencies and forensic investigators, will fall under the “prosecution team” umbrella if they have had a role in investigating the case.
While the first four groups of persons in the “prosecution team” are obvious for discovery purposes, federal employees who are part of joint task forces are new members of the “team,” which will likely raise issues if they do not see themselves as members of the state “prosecution team.”2
- Discoverable “Statements”
Both “oral statements” and “written statements” are mandatory discovery items, and the new rule defines both terms. MRCP 14(b)(3) (2025 ed.). Oral statements include “any communication, by speech or nonverbal conduct intended as an assertion.” MRCP 14(b)(3)(B). The Reporter’s Notes explain that oral statements include “casual, offhand, or informal remarks,” whether made “in person or through telephonic or electronic communication,” as well as gestures such as “nodding, shaking one’s head, or pointing.” Prosecutors should memorialize and provide oral statements “without regard to whether any such information has been reduced to tangible form.” MRCP 14(b)(2)(A) (2025 ed.). The new rule further clarifies that if statements exist in multiple forms (meaning both written and oral), all must be disclosed. MRCP 14(b)(3)(C) (2025 ed.).
B. Duty to Inquire, Preserve, and Provide
Inherent in current Rule 14 is a duty to preserve and disclose exculpatory information by asking every member of the prosecution team to do the same. The new Rule provides greater specificity about the minimum steps a prosecutor must take to ensure disclosure. For “each member of the prosecution team whom the prosecutor has reason to believe may be in possession of” information favorable to the defendant or investigative materials, the prosecutor must inform them of “their responsibility to preserve and provide,” and must “collect and disclose” such information. MRCP 14(a)(2) (2025 ed.). The duty to “preserve” reaches information “which cannot be promptly copied or made available for inspection by the defense,” as well as information that “has not been reduced to tangible form,” including information gained by members of the prosecution team when speaking with a witness. Further, the duty to “provide” means the prosecutor must promptly notify the defense of any material that has been “destroyed, lost, altered, or which have otherwise become unavailable, or … that a member of the team will not provide the prosecutor.”
The new Rule also contains an affirmative statement of the trial court’s authority to ask the prosecution about actions taken to achieve compliance with these obligations. MRCP 14(a)(2)(E) (2025 ed.). The Reporters’ Notes observe that, while the trial court has always maintained inherent authority to ensure that the prosecution complies with its discovery obligations, the prospect of a prosecutor being directly asked about the steps that have been taken counsels in favor of “adopt[ing] a method for recording actions that are done to discharge discovery obligations” as part of the prosecutor’s routine practice.
C. Checklists
A key driver of the amendments appears to have been the common and encouraged use of “Brady checklists.” As the Supreme Judicial Court has noted, “Brady checklists have been added to the local rules in many Federal District Courts, in some instances in response to prosecutorial misconduct.” CPCS, 480 Mass. at 732–33 (citing, inter alia, Yaroshefsky, Prosecutorial Disclosure Obligations, 62 Hastings L.J. 1321, 1327-1328, 1346 (2011) (describing American Bar Association Criminal Justice Standards that support the use of Brady checklists)). The use of a non-exhaustive, detailed listing of information throughout the new Rule expresses an intention that criminal lawyers use discovery checklists to ensure expansive and exhaustive disclosure of information.
Key checklists embedded in the new rule include: (1) investigative materials subject to automatic discovery; (2) material that is presumptively discoverable under the definition of “items or information favorable to the defense”; and (3) potential members of the “prosecution team.” These checklists are meant to provide a “baseline of the most likely sources and types of exculpatory information for prosecutors to consider,” as no list can span the entire “universe” of potentially discoverable material. CPCS, 480 Mass. at 732. While non-exhaustive, the new rule is designed to be used by practitioners and judges as a guide to assessing whether the duties of preservation, inquiry, and disclosure have been fulfilled (see Appendix, checklist).
Reciprocal Discovery
New Rule 14.1 adds disclosure of “known contact information … of those persons whom the defendant may call as a witness” to the existing reciprocal discovery disclosures made by the defendant’s counsel to the prosecutor. This change arguably expands the range of persons whose contact information will be disclosed, as the current rule only requires information about witnesses the defense “intends to offer at trial.”
The second substantive change to Rule 14.1 is the affirmative statement of the judge’s express authority to inquire about actions taken to achieve compliance, which tracks the grant of authority to inquire about actions the prosecution has taken. Any disclosures concerning actions taken in a matter should be made bearing in mind the duty of confidentiality and the requirements of the attorney-client privilege. See Mass. R. Prof. C. 1.6. In addition, the new Rule emphasizes defense counsel’s continuing duty to comply with Rule 14 requirements. MRCP. 14.1(b) (2025 ed.).
Conclusion
The new directive to turn over items “favorable to the defense” does not preclude a prosecutor from engaging in a technical analysis about what is “favorable.” However, prosecutors do not have crystal balls showing how the defense may or may not use information. Prosecutors’ offices would be well-served to institute open file policies instructing prosecutors to turn over any information that is not privileged or work product, as currently instituted in many Massachusetts District Attorney’s Offices. Open file policies ensure that discovery will “be disclosed without regard to whether the prosecutor considers the items or information credible, reliable, or admissible.” MRCP 14(b)(2)(A) (2025 ed.).
Overall, the comprehensive amendments to Rule 14 clarify specific actions to be taken in order to ensure compliance. The checklist appended to this article provides step-by-step instructions to walk the path. The lists of specific items and examples have deep roots in well-established law and are a reliable source of guidance for litigators about the scope of the parties’ disclosure obligations.
Christina Miller is the Associate Director of Clinical Programs and Associate Clinical Professor of Law at Suffolk University School of Law, where she supports all Clinical Programs, Directs the Prosecutors Program, and teaches in the area of criminal law. Prior to joining Suffolk, Professor Miller was the Chief of District Courts and an Assistant District Attorney for the Suffolk County District Attorney’s Office representing the Commonwealth in the trial and appellate courts.
Michelle Menken is a criminal defense attorney in private practice handling trials and appeals at the state and federal levels. She is an Adjunct Professor of Law at Suffolk University School of Law, where she directs the Innocence Clinic. Attorney Menken is a member of the adult and juvenile post-conviction panels for Massachusetts’ Committee for Public Counsel Services and serves as a mentor to newer members of those panels.
[1] The new Rule added “video and audio recordings” and “investigator’s reports” to the mandatory discovery items. Compare MRCP 14(b)(1)(G) (2025 ed.) with MRCP 14(a)(1)(A)(vii). It also added “[w]ritten or recorded statements of persons the prosecutor may call as witnesses, and notes of interviews by law enforcement with persons the prosecutor may call as witnesses, unless contained within a disclosed statement or report,” as well as “business telephone numbers” and “business email addresses” of prospective law enforcement witnesses. MRCP 14(b)(1)(D)-(E) (2025 ed.).
2 Cross-jurisdictional actors may be reluctant to see themselves as part of the “Prosecution Team” even when they hold information that was part of an investigation leading to a state level prosecution. While the new Rule 14 Reporter’s Notes state that “[d]oubts as to whether government officials, particularly law enforcement officials, who interact with the prosecuting office might be under its control … should be resolved through disclosure,” a review of the cases cited in the pertinent section of the Notes reveals that the law has not necessarily supported this view to date. See 2025 Reporter’s Notes to the new Rule 14(a)(1), citing, e.g., Commonwealth v. Daye, 411 Mass. 719, 733-734 (1992) (although the defendant produced proof of communication and coordination between two jurisdictions investigating him for separate but related murders, evidence of a “joint investigation” was insufficient to make one jurisdiction responsible to produce exculpatory information possessed by the other) and Commonwealth v. Williams, 475 Mass. 705, 722-723 (2016) (Connecticut authorities had no obligation to preserve or produce defendant’s DNA to Massachusetts prosecutorial team even though investigation into the crime started in Connecticut and Connecticut authorities collected the DNA was used in Massachusetts prosecution).
