Discovery in the law refers to the pre-trial period in a lawsuit, governed by rules of procedure, during which the parties obtain evidence and information from each other to support their case or defend a claim. Parties generally may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter of the lawsuit, and it is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. With such a broad directive, conflicts often arise regarding the extent that an adverse party can reach into a person’s private life, especially where the sought after information is not directly related to the facts of a case. One such area is the discovery of the criminal records of parties and witnesses in an action.

Admissibility of Criminal Record

In Massachusetts, the criminal history of a party or witness who testifies at trial may be admissible to challenge credibility under the rationale that a witness’ earlier disregard for the law may suggest to the fact finder a similar disregard for the courtroom oath. In Massachusetts such impeachment by criminal record dates back at least 150 years. Generally, the admissibility of such records is restricted by statute to convictions within 5 years of testifying for misdemeanors and 10 years for felonies. Admissibility of criminal records is further limited to the discretion of the trial court judge who must weigh the prejudicial effect of such evidence against its probative value. State regulation governing criminal offender record information (CORI) in Massachusetts requires an attorney seeking to obtain a non-client’s CORI “for litigation purposes” to submit a “valid signed court order” directly to the Department of Criminal Justice Information Services (DCJIS).

Right to Obtain a Party’s Criminal Record

In one recent personal injury case, a U.S. District Court judge allowed a defendant to obtain the CORI of the plaintiff after the DCJIS objected to a subpoena arguing that the records were privileged and protected from disclosure. The trial court judge found the argument unpersuasive stating that “nothing in the CORI statute purports to protect CORI records from disclosure as privileged” and noted that state regulations provided a mechanism for disclosure and governed the specific circumstances under which members of the public, including attorneys, could obtain an individual’s CORI. The trial court judge determined that the defendant had shown the potential relevance of the plaintiff’s CORI and ordered the DCJIS to produce the records. The trial court judge noted that the defendant’s receipt and handling of any information provided would be subject to statute imposing criminal and civil penalties for unauthorized disclosure, and further specifically limited disclosure “only for the purpose of the legal defense” of the case.

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If you or a loved one were injured because of someone’s negligence, contact Attorney Allison now for a free consultation by calling 978-740-9433 or filling out our free consultation form. We look forward to talking to you about your claim.