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Contact: Michael Avitzur
Director of Government Relations

Boston Bar Association's Amicus Brief Defends Access to DNA Testing, Attorney-Client Privilege

In an effort to ensure proper implementation of the Commonwealth’s new DNA testing law to prevent wrongful convictions, as well as halt unjustified intrusions on attorney-client privilege, the Boston Bar Association (BBA) has filed an amicus brief in support of the appellant in the case of Commonwealth v. Wade (SJC-11913) before the Supreme Judicial Court (SJC).
"The attorney-client privilege is critical to the proper functioning of the criminal justice system. We are deeply concerned about an interpretation of the new law which effectively chills access to justice."
Lisa Arrowood
BBA President

The brief centers on the trial court’s interpretation of a new Massachusetts forensic testing law, M.G.L. c. 278A. The BBA spurred passage of this law through its Task Force to Prevent Wrongful Convictions and their resulting 2009 report, Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts.

The law represents a major breakthrough in access to justice, securing for those who contend they were wrongfully convicted the right to pursue testing that can help establish their innocence.

However, a recent interpretation of this law by the trial court has not only denied a defendant his right to the testing, it also resulted in his attorney being ordered to reveal highly confidential communications protected by attorney-client privilege—a bedrock protection in the American legal system.

The new law allows for post-conviction forensic testing if the defendant can show, among other things, that the requested testing had not been conducted at the initial trial for any one of five reasons outlined in the statute, including ineffective assistance of counsel, the inadmissibility of the evidence, or the subsequent development of new DNA tests. In Commonwealth v Wade, the defendant argued that the test sought was not in existence at the time of his trial. That – according to the BBA’s brief – is enough to satisfy one of the requirements of the new law.

However, the trial court imposed an additional requirement on the defendant not found in the statute: identification of the “primary cause” or “real reason” for a lack of any DNA testing at the time of trial. It was in the course of attempting to meet this additional measure – not required by the new law – that the court overrode Mr. Wade’s right to attorney-client privilege and ordered his attorney to testify.

“The purpose of Chapter 278A was to broaden the availability of DNA testing to criminal defendants who meet the requirements of the statute,” said Michael Ricciuti of K&L Gates, lead author of the BBA brief. “The trial court’s reading of the statute to find an attorney-client privilege waiver turns this legislative intent on its head. Left uncorrected, the trial court’s interpretation will strongly deter criminal defendants from seeking the protections of the law.”

“In its report Getting it Right, the Boston Bar Association concluded that a new statute was necessary to ensure access to justice, and the legislature agreed,” said BBA President Lisa Arrowood. “The attorney-client privilege is critical to the proper functioning of the criminal justice system. We are deeply concerned about an interpretation of the new law which effectively chills access to justice.”

Oral arguments in Commonwealth v. Wade may be heard by the Massachusetts Supreme Judicial Court as early as December 10th.

Amicus Curiae means, literally, friend of the court. Since 1975, the BBA has filed amicus briefs on matters related to the practice of law or the administration of justice. The 2015-2016 Amicus Committee is chaired by Anthony Scibelli of Barclay Damon, LLP.

The Boston Bar Association traces its origins to meetings convened by John Adams, who provided pro bono representation to the British soldiers prosecuted for the Boston Massacre and went on to become the nation’s second president. Its mission is to advance the highest standards of excellence for the legal profession, facilitate access to justice, serve the community at large and promote diversity and inclusion.