Bishop standard in Massachusetts

2000The judge below ruled that, whichever standard applied, there was an insufficient basis for in camera review of the records, even under the “now-superseded Bishop standard.” We conclude that, for purposes of determining counsel’s effectiveness, the appropriate measure is governed by the “likely to be relevant” standard of Commonwealth v. Bishop, supra at 181-182 .

1998The matter is presently before the Court in connection with a Stage 4 Bishop hearing, see Commonwealth v. Bishop, 416 Mass. 169, 182-83 (1993), whereby the defendant seeks “disclosure to the trier of fact” of certain records of Ms. Párente.

2001L. c. 233, § 20J, as set out in Commonwealth v. Fuller, supra at 226 (defendant’s motion for production of records must demonstrate “a good faith, specific, and reasonable basis for believing that the records will contain exculpatory evidence which is relevant and material to the issue of the defendant’s guilt”), now applies to •requests “for any privileged documents,” such as those at issue here, Commonwealth v. Oliveira, supra at 617 (emphasis added), the impact of Fuller on the Bishop standard was not clear at the time of trial of this case.

2001The affidavit in support of the defendant’s initial Bishop motion stated only that the complaining witness had received psychiatric counselling both prior and subsequent to the alleged assault, that the counselling records “may contain versions of the event” that would be “important for impeachment,” “may reveal a propensity on the part of the complaining witness to lie,” “may reveal a motive” for making false allegations, “may reveal a family history” giving rise to bias, and “may contain evidence that sheds light on the complaining witness’ ability to perceive, recollect, and recall.” This l

2001L. c. 233, § 20J, as set out in Commonwealth v. Fuller, supra at 226 (defendant’s motion for production of records must demonstrate “a good faith, specific, and reasonable basis for believing that the records will contain exculpatory evidence which is relevant and material to the issue of the defendant’s guilt”), now applies to •requests “for any privileged documents,” such as those at issue here, Commonwealth v. Oliveira, supra at 617 (emphasis added), the impact of Fuller on the Bishop standard was not clear at the time of trial of this case.

2001L. c. 233, § 20J, as set out in Commonwealth v. Fuller, supra at 226 (defendant’s motion for production of records must demonstrate “a good faith, specific, and reasonable basis for believing that the records will contain exculpatory evidence which is relevant and material to the issue of the defendant’s guilt”), now applies to •requests “for any privileged documents,” such as those at issue here, Commonwealth v. Oliveira, supra at 617 (emphasis added), the impact of Fuller on the Bishop standard was not clear at the time of trial of this case.

2007See Commonwealth v. Dexter, 50 Mass. App. Ct. 30, 33-34 (2000) (no prejudice resulted from denial of Bishop motion where, inter alla, defendant had opportunity to cross-examine victim on her use of medication).

2005In McLaughlin v. MacDonald’s Corp., the court rejected a Bishop analysis, stating “because these same federal and state constitutional guarantees of due process do not apply to civil proceedings, Massachusetts Courts have been reluctant to recognize such an exception to the privilege in civil proceedings.” 203 F.R.D. 45, 49 (D.Mass. 2001).

2005In McLaughlin v. MacDonald’s Corp., the court rejected a Bishop analysis, stating “because these same federal and state constitutional guarantees of due process do not apply to civil proceedings, Massachusetts Courts have been reluctant to recognize such an exception to the privilege in civil proceedings.” 203 F.R.D. 45, 49 (D.Mass. 2001).

2004See Commonwealth v. Sheehan, 435 Mass. 183 , 187 n.8 (2001).

2001See Commonwealth v. Pare, 427 Mass. at 429 (“revised protocol” provided by Fuller not applicable because Fuller not decided until after Fare’s trial).

2001See Commonwealth v. Pare, 427 Mass. at 429 (“revised protocol” provided by Fuller not applicable because Fuller not decided until after Fare’s trial).

2001See Commonwealth v. Person, 400 Mass. 136, 139 (1987).

2001Commonwealth v. Bishop, supra at 182 , quoting People v. Gissendanner, 48 N.Y.2d 543, 549 (1979) (court must deny request if “defendant’s request is supported only by a desire to embark on an ‘unrestrained foray into confidential records in the hope that the unearthing of some unspecified information would enable [the defendant] to impeach the witness’ ”).