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Appeals court presses prosecutors on rule 17 summons, evidence exclusion in Commonwealth v. Brooking
Summary
The Massachusetts Appeals Court on March 6 heard argument in Commonwealth v. Brooking over a trial judge’s exclusion of third-party records the prosecutor sought by Rule 17 summons, questioning whether prosecutors and clerks did enough to secure production and whether exclusion could bar retrial.
The Massachusetts Appeals Court on March 6 heard argument in Commonwealth v. Brooking (24-P-410), a criminal appeal about a trial judge’s exclusion of third-party records the Commonwealth sought by a Rule 17 summons and whether that exclusion effectively barred retrial.
The panel — Justice Greg Massing, Justice Nyman and Justice Wood — pressed the Commonwealth on why it had not secured records from the third-party provider and whether the trial judge had authority to exclude records obtained from a nonparty. Jocelyn McGrath, assistant district attorney for the Commonwealth, told the court the prosecutor’s office viewed the Rule 17 summons as primarily an evidence-gathering tool: “A Rule 17 court summons is an evidence-gathering tool. It is not a discovery tool. It does not grant the authority, even implicitly, for any Rule 14 type sanctions,” McGrath said.
Why the records did not reach the clerk’s office was a central factual dispute at…
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