Introduction
Transparency and public accountability are indispensable remedies to misconduct—as Supreme Court Justice Louis Brandeis stated, “sunlight is said to be the best of disinfectants.”1 Louis D. Brandeis, Other People’s Money and How the Bankers Use It 92 (Frederick A. Stokes Company, 1914). The need for public accountability is especially strong in the criminal justice system, where misconduct may undermine the public’s faith that justice is being done.2Allan D. Sobel, Preserving Public Trust and Confidence in the Criminal Justice System, 87 Judicature 157, 157 (2004). When public officials commit misconduct, one way to remediate the harm to public faith is to promptly disclose and confront that misconduct.3 Jason Kreag, Disclosing Prosecutorial Misconduct, 72 Vand. L. Rev. 297, 337 (2019).
This Comment argues that the Massachusetts Supreme Judicial Court’s (“SJC”) decision in Commonwealth v. McFarlane excessively limits the definition of exculpatory evidence, deprives defendants of due process, and discourages public trust in the criminal justice system. The Court, by characterizing all pending misconduct suits against the prosecution team as “unsubstantiated,” omits meritorious pending claims from prosecutors’ duty to disclose.4Commonwealth v. McFarlane, 225 N.E.3d 812, 819 (Mass. 2024). Part I of this Comment reviews the current law regarding the prosecutorial duty to disclose and the burdens required of plaintiffs litigating an official misconduct suit. Part II reviews the SJC’s opinion in McFarlane and evaluates the Court’s reasoning. Part III explains the SJC’s mischaracterization of pending lawsuits as “unsubstantiated” and proposes an alternative rule which would better account for the ways in which pending suits require substantiation. Part IV argues why the alternative rule would better uphold due process, promote the thorough pursuit of justice, and strengthen the public’s trust in the criminal justice system.
I. Background
A. Due Process and Exculpatory Evidence
The U.S. Constitution guarantees “that no person shall be deprived of ‘life, liberty, or property, without due process of law.’”52 William J. Rich et al., Modern Constitutional Law § 30.1 (3rd. ed. 2011 rev. ed. David S. Rubenstein 2025) (quoting U.S. Const. amend V). More than a mere checklist of procedural safeguards, due process is meant to preserve fundamental fairness in the criminal justice process.6Id. Due process may be violated by the withholding of material evidence favorable to a criminal defendant, sometimes referred to as exculpatory evidence or “Brady material.”7 See United States v. Agurs, 427 U.S. 97, 106 (1976); see also Commonwealth v. Sullivan, 85 N.E.3d 934, 946 (Mass. 2017). Exculpatory evidence includes all evidence “which tends to ‘negate the guilt of the accused.’”8Commonwealth v. Pisa, 363 N.E.2d 245, 249 (Mass. 1977) (quoting PATTERN RULES OF COURT AND CODE PROVISIONS r. 7-1.1(c) (AM. BAR ASS’N 1976). More particularly, exculpatory evidence “provides some significant aid to the defendant’s case, whether it . . . calls into question a material, although not indispensable, element of the prosecution’s version of events, or challenges the credibility of a key prosecution witness.”9Commonwealth v. Ellison, 379 N.E.2d 560, 571 (Mass. 1978). Massachusetts courts interpret exculpatory evidence as a broad legal category.10 See Sullivan, 85 N.E.3d at 946. Exculpatory evidence need not provide proof of innocence, be highly demonstrative of innocence, or otherwise be absolutely destructive to the prosecution’s case, so long as the evidence tends either to negate guilt or support innocence for the defense.11 Id. (quoting Commonwealth v. Laguer, 863 N.E.2d 46 (Mass. 2007)).
B. Prosecutorial Duties of Disclosure and Inquiry
Prosecutors have a special duty to share certain kinds of evidence with defendants in criminal cases.12Brady v. Maryland, 373 U.S. 83, 87 (1963). A prosecutor violates a defendant’s due process rights when that prosecutor keeps evidence that is “material either to guilt or to punishment” from the defendant.13 Id. Such suppression violates due process regardless of whether the prosecutor acted in bad faith.14 Id. In many cases, prosecutors may possess exculpatory information about which the defense is unaware.15United States v. Agurs, 427 U.S. 97, 106 (1976). In these cases, without sufficient knowledge to make specific requests for that information, defendants are likely either to make general requests for Brady material and exculpatory information, or to fail to request the material at all.16 Id. If a prosecutor has access to information of value to the defense, due process requires that this information be disclosed to the defense with or without a request.17 Id. at 110. This duty to disclose is rooted in the “twofold aim of [the prosecutor] which is that guilt shall not escape or innocence suffer.”18 Id. at 111.
The duty to disclose creates a corollary duty of inquiry.19 See Commonwealth v. Martin, 696 N.E.2d 904, 908–09 (Mass. 1998). The duty of inquiry requires prosecutors to seek out knowledge of any exculpatory evidence possessed by the prosecution team or any “others acting on the government’s behalf in the case, including police.”20 Id. at 909 (quoting Kyles v. Whitley, 514 U.S. 419 (1995)). The prosecutorial duty of inquiry is broad, limited only by a standard of objective reasonableness.21 See Commonwealth v. Frith, 939 N.E.2d 709, 713–14 (Mass. 2010). The duties of disclosure and of inquiry are “inextricably connected”—that is, the scope of a prosecutor’s required inquiry is driven by what evidence will be exculpatory.22Commonwealth v. McFarlane, 225 N.E.3d 812, 819–20 (Mass. 2024). A defendant in Massachusetts may obtain a new trial for nondisclosed evidence following a showing that the prosecution possessed the evidence, the evidence was in fact exculpatory, and the nondisclosure prejudiced the proceedings against the defendant.23Commonwealth v. Murray, 957 N.E.2d 1079, 1086–87 (Mass. 2011).
C. Initiating Civil Suits and Summary Judgment
Plaintiffs in civil cases must meet certain burdens to state a claim against a defendant.24 See Commonwealth v. DiBennadetto, 764 N.E.2d 338, 341 (Mass. 2002); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 120, at 893 (5th ed. 1984). At the beginning of a civil claim, the plaintiff (or their attorney) must sign their name confirming that the allegations of the complaint have “a basis in fact after reasonable investigation.”25 McFarlane, 225 N.E.3d at 826 (Wendlandt, J., concurring); see also MASS. R. CIV. P. 11(a). The allegations in the complaint must plausibly suggest that the plaintiff has a right to relief.26 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). An attorney who knowingly violates these requirements may be subjected to reprimand and sanctions.27 Mass. R. Civ. P. 11(a); see Richard M. Zielinski, Vexatious Litigation: A Vexing Problem, 56 FALL BOS. BAR J. 4, 5 (Sep. 12, 2012).
At any point after the plaintiff states a claim and before the end of trial, the defense may move for summary judgment.28 See Liss v. Studeny, 879 N.E.2d 676, 683 (Mass. 2008). The central issue in motions for summary judgment is whether there is a genuine controversy as to a question of material fact; if no material questions are in controversy, and the stated facts do not give rise to a legally cognizable claim, the court may reject a case in its entirety.29 See id. Parties may use motions for summary judgment to require an opposing party to demonstrate whether it has evidence that will support a salient issue in the litigation.30 See Coombes v. Florio, 877 N.E.2d 567, 575 (Mass. 2007). Parties in civil suits are entitled to summary judgment where a non-moving party, bearing the burden of proof, has “no reasonable expectation of proving an essential element of the claim.”31Williams v. Steward Health Care System, LLC, 103 N.E.3d 1192, 1196 (Mass. 2018). In other words, a plaintiff’s suit may survive a motion for summary judgment if and only if the plaintiff has a reasonable expectation of proving each essential element of the claim.32 See id.
D. Qualified Immunity
Qualified immunity protects public employees from civil liability stemming from their professional duties “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”33Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity generally applies in circumstances prescribed by statute.34 See MASS. GEN. LAWS ch. 258 § 10 (2005). If the immunity applies, plaintiffs must meet a two-pronged burden to advance their claim.35Pearson v. Callahan, 555 U.S. 223, 232–33 (2009); see Maldonado v. Fontanes, 568 F.3d 263, 268–69 (1st Cir. 2009). The relevant burdens are: “(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was ‘clearly established’ at the time of the defendant’s alleged violation.”36 Maldonado, 568 F.3d at 268–69. Plaintiffs must demonstrate that “under the circumstances that confronted the official, ‘a reasonable official would understand that what he is doing violated that right.’”37Berthiaume v. Caron, 142 F.3d 12, 15 (1st Cir. 1998) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In other words, the question is “whether a reasonable officer, situated similarly to the defendant, would have understood the challenged act or omission to contravene the discerned constitutional right.”38Burke v. Town of Walpole, 405 F.3d 66, 77 (1st Cir. 2005) (quoting Limone v. Condon, 372 F.3d 39, 44 (1st Cir. 2004)). To show that an official’s conduct violated a clearly established right, a plaintiff must “identify controlling authority or a consensus of persuasive authority sufficient to put the officers on notice that their conduct violated the law.”39Estate of Rahim v. Doe, 51 F.4th 402, 412 (1st Cir. 2022); see also Rivera-Corraliza v. Morales, 794 F.3d 208, 214–15 (1st Cir. 2015) (noting that a plaintiff’s failure to identify such authority dooms their claims). The doctrine is controversial, “leav[ing] ‘ample room for mistaken judgments.’”40 Berthiaume, 142 F.3d at 15 (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).
Qualified immunity protects officials from the cost and inconvenience of lawsuits, not merely liability; trial courts are consequently tasked with determining whether immunity applies early in the litigation.41 Lynch v. Crawford, 135 N.E.3d 1037, 1042 (Mass. 2019). This means the parties must litigate the issue of immunity before the suit can continue.42 See MASS. GEN. LAWS ch. 258 § 10 (2005) (listing various claims that are exceptions to the application of Massachusetts provisions relating to qualified immunity).
II. Commonwealth v. McFarlane
A. The Facts and Procedural History
In 2017, Officers Daniel Moynahan and Brian Phillips arrested Denzel McFarlane for possession of a firearm, unlawful possession of ammunition, and improper storage of a firearm.43Commonwealth v. McFarlane, 225 N.E.3d 812, 816–17 (Mass. 2024). McFarlane and the prosecution presented different accounts of the relevant facts at trial.44 See id. The prosecution described McFarlane’s arrest as occurring in a typical and measured fashion, with the arresting officers approaching McFarlane calmly after observing an issue with his car’s registration.45 Id. The officers stated that while questioning McFarlane about the vehicle, they observed a firearm in his car between the driver’s seat and the center console.46 Id. at 816. By their account, the officers only placed McFarlane under arrest after his admission that he did not have a license to carry the firearm.47 Id.
McFarlane’s recollection at trial painted a very different picture.48 Id. He testified that moments after stepping out of his vehicle, one of the officers suddenly approached McFarlane, placed him in handcuffs, and seated him in the police cruiser.49 McFarlane, 225 N.E.3d at 816. McFarlane denied any knowledge of the firearm, testified that he had purchased the vehicle shortly before his arrest, and suggested that the firearm must have been there prior to the purchase.50 Id. The parties also disagreed about whether McFarlane made any inculpatory statements after being placed in the police cruiser.51 Id. at 816–17. In part, McFarlane’s trial was a contest of credibility between himself and the arresting officers.52 Id. at 821.
McFarlane was convicted on February 11, 2020.53 Id. at 817. Unbeknownst to the defense team, Officer Daniel Moynahan was sued for official misconduct in the spring after McFarlane’s arrest.54 Id. On February 21, 2020, only ten days after McFarlane’s conviction, Moynahan was found liable for false arrest and false imprisonment.55 McFarlane, 225 N.E.3d at 817. Only later did McFarlane learn about the lawsuit against his arresting officer.56 Id.
In August of 2020, McFarlane filed a motion for a new trial and argued that the lawsuit against Moynahan and the allegations therein were exculpatory evidence which the prosecution had failed to disclose.57 Id. The lower court denied McFarlane’s motion in a written finding that the then-pending suit “was not Brady material,” in part because the court did not believe that McFarlane suffered any prejudice as a result of the lawsuit’s non-disclosure.58 Id. at 817–18. McFarlane appealed and the appeals court affirmed the decision.59 Id. at 817. The SJC granted further review in May 2023.60 Id.
B. The SJC’s Holding and Analysis
The SJC began its opinion by reiterating that criminal defendants seeking to obtain a new trial on the grounds of undisclosed exculpatory evidence must show “’(1) that ‘the evidence [was] in the possession, custody, or control of the prosecutor or a person subject to the prosecutor’s control’; (2) ‘that the evidence is exculpatory’; and (3) ‘prejudice.’’”61 McFarlane, 225 N.E.3d at 818 (citations omitted). For the purposes of this decision, the majority opinion focused on whether the pending suit against Moynahan could be considered exculpatory evidence.62 Id.
The SJC decided that the pending suit was not exculpatory.63 Id. at 819. The Court held that pending civil suits against members of the prosecution team fall outside of the broad scope of exculpatory evidence, and prosecutors do not have a duty to automatically disclose knowledge of these suits to the defense.64 Id. The Court’s primary reason for arriving at this conclusion was that “the civil pleading stage only requires ‘factual ‘allegations plausibly suggesting’’ an entitlement to relief.”65 Id. (citing Iannacchino v. Ford Motor Co., 888 N.E.2d 879 (Mass. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007))). Therefore, any pending suit could be without merit until there is finding of liability.66 Id. The Court distinguished pending civil cases from criminal cases, which have higher standards for the initiation of proceedings.67 McFarlane, 225 N.E.3d at 819.
The majority also distinguished pending civil suits from civil findings of liability “made against prosecution team members in the performance of their official duties,” which would be considered exculpatory and fall within the scope of automatic disclosure and the duty of inquiry.68 Id. at 820. This distinction characterized findings of civil liability as properly substantiated, having followed a judicial process that weighs the evidence and arguments in favor of each side, as opposed to ostensibly unevaluated pending suits which have not yet completed that process.69 Id. at 821. The majority clarified that not all findings of civil liability against members of the prosecution team are exculpatory; rather, the findings must be specifically “related to the performance of that member’s official duties.”70 Id.
The Court noted that, by its own standard, the pending suit against Officer Moynahan became exculpatory information ten days after McFarlane’s conviction, when Moynahan was “found liable for false imprisonment and false arrest”—ten days too late for McFarlane to use the case in his defense.71 See id. Due to its exculpatory power to challenge the officers’ account of the arrest, the finding against Moynahan would have fallen within the prosecutorial duty to inquire and disclose if that finding were made a mere ten days sooner.72 Id. The Court addressed the issue that if McFarlane’s trial occurred slightly later than it did, due process would have required the prosecution to disclose the suit against Moynahan, by simply stating that where “the law draws a line there will be cases very near each other on opposite sides.”73 McFarlane, 225 N.E.3d at 821 (quoting United States v. Wurzbach, 280 U.S. 396, 399 (1930)).
Analysis
III. The SJC’s Rule Excessively Limits the Definition of Exculpatory Evidence
A. The Majority’s Rule Ignores Substantiating Requirements for Pending Suits
The majority erred in its holding that pending lawsuits against members of the prosecution team cannot be exculpatory because this holding relies on the flawed premise that such pending lawsuits are necessarily unsubstantiated.74 See id. at 826 (Wendlandt, J., concurring). Associate Justice Wendlandt challenged this premise in her concurrence with the majority’s opinion.75 Id. She reminded the Court that, before beginning a civil action, an attorney must conduct a reasonable investigation and determine the action’s allegations have a basis in fact.76 Id. Those allegations must “plausibly suggest a right to relief.”77 Id. It is especially difficult to initiate lawsuits for misconduct, as claims against police officers and prosecutors for actions taken in their official capacity must overcome the defense of qualified immunity.78 Id. These suits must then be able to survive motions for summary judgment.79 McFarlane, 225 N.E.3d at 826 (Wendlandt, J., concurring).
However, Wendlandt’s concurrence did not follow through to its logical conclusion, opting instead to agree with the majority for the sake of establishing a bright-line rule.80 See Id. at 827. Concerned readers should note Wendlandt’s insistence that pending suits may be substantiated,81 Id. at 826. while the majority stated that substantiated claims against prosecution team members in the performance of their official duties are exculpatory and may be subject to automatic disclosure.82 Id. at 819–20 (majority opinion). Because procedural burdens require litigants to support their claims before a finding, pending suits may be substantiated and exculpatory, and should therefore be subject to disclosure.83 Compare id. at 826 (Wendlandt, J., concurring), with id. at 820 (majority opinion).
An attorney initiating a lawsuit must conduct a reasonable investigation and determine the allegations have a basis in fact.84 See Mass. R. Civ. P. 11(a). Where an attorney fails to do this, the case will be dismissed and the attorney may be subject to sanctions.85 See id. The law thereby discourages wholly unsubstantiated or frivolous lawsuits, and where litigants nevertheless file frivolous suits, the courts may promptly dismiss them.86 See id.; Zielinski, supra note 27, at 5. Therefore, even though lawsuits may ultimately prove unsuccessful up to the moment there is a finding of liability, courts require a degree of substantiation from the very outset.87 See McFarlane, 225 N.E.3d at 826 (Wendlandt, J., concurring). See generally Mass. R. Civ. P. 11(a).
Qualified immunity makes some form of substantiation critical at all points of the litigation, including at the initiation.88 See McFarlane, 225 N.E.3d at 826 (Wendlandt, J., concurring); see also Nyla Knox, Qualified Immunity: Rectifying a Detrimental Doctrine, 53 ARIZ ST. L.J. 945, 948 (2021). The obstacles established by qualified immunity pose unique challenges to plaintiffs, and litigants suing for misconduct against a government official must prepare evidence to demonstrate their cause of action is an exception to that official’s immunity.89 See Knox, supra note 88, at 951.
As with all civil suits, defendants in cases of official misconduct can move for summary judgment on the argument that the plaintiff has not presented a genuine issue of material fact.90 Mass. R. Civ. P. 56(c). To survive summary judgment, a plaintiff cannot rely on mere allegations or denials.91 Mass. R. Civ. P. 56, Reporter’s Notes (1973). But see McFarlane, 225 N.E.3d at 815 (majority opinion) (holding that prior to a finding of liability, pending suits for misconduct amount to “unsubstantiated allegations”). Rather, the plaintiff must provide enough countervailing data and evidence to convince a judge that there is a genuine and material issue.92 Mass. R. Civ. P. 56, Reporter’s Notes (1973).
Contrast these pretrial requirements with the majority’s characterization of pending lawsuits for misconduct as “unsubstantiated allegations.”93 McFarlane, 225 N.E.3d at 819. The majority argues that the lawsuit against Moynahan was unsubstantiated, despite all evidence levied against Moynahan, up until the moment there was a finding of liability.94 See id. at 821. This characterization ignores the investigation that attorneys must conduct before filing a suit,95 See Mass. R. Civ. P. 11(a). the substantial burdens placed on plaintiffs to overcome qualified immunity,96 See Knox, supra note 88, at 948–51. the requirements to present substantiating evidence throughout litigation,97 See Mass. R. Civ. P. 56, Reporter’s Notes (1973). and the disciplinary measures taken against lawyers who file frivolous suits.98 See Zielinski, supra note 27, at 5. A proper understanding of pretrial procedure demonstrates that pending suits, especially those which will prove successful, require substantiation well before a final disposition.99 See McFarlane, 225 N.E.3d at 826 (Wendlandt, J., concurring).
B. Due Process Requires that Pending Misconduct Suits Against Members of the Prosecution Team be Disclosed
1. Substantiated Misconduct Suits Should Be Disclosed
Even though pending misconduct suits may ultimately be unsuccessful, they may nevertheless be substantiated in the sense described by Justice Wendlandt100 See id. and therefore may have exculpatory value to defendants.101 See id. (asserting that substantiated misconduct claims against members of the prosecution team are exculpatory and must be disclosed). In light of the exculpatory value of substantiated pending suits, due process requires that they be subject to automatic disclosure.102 Compare id. at 826 (Wendlandt, J., concurring), with id. at 820 (majority opinion). The alternative is that exculpatory information may be effectively suppressed, contrary to the policy motives established in Brady.103 See Brady v. Maryland, 373 U.S. 83, 87 (1963). The majority opinion in McFarlane itself stated that substantiated misconduct lawsuits against members of the prosecution team are exculpatory and must necessarily be disclosed in the interest of due process;104 McFarlane, 225 N.E.3d at 819. it follows that, where pre-trial cases are substantiated, they too are exculpatory and must be disclosed.105 Compare id. at 826 (Wendlandt, J., concurring), with id. at 820 (majority opinion).
2. Pending Suits for Misconduct Against Members of the Prosecutorial Team Should Be Disclosed Automatically
Of course, not all pending lawsuits of misconduct will be successful, and such lawsuits are not proof in themselves that the officials involved committed misconduct.106 See id. at 826 (Wendlandt, J., concurring). All the same, some pending lawsuits certainly will prove successful, and those successful lawsuits are potentially exculpatory to the defendant.107 See id. at 820 (majority opinion) (providing that findings of liability against members of the prosecution team are exculpatory and must be disclosed). The majority’s decision allows for suits that have merit to evade examination in the pre-trial and trial process, as happened to McFarlane.108 See id. at 819 (stating the suit against Officer Moynahan would have been Brady Material in McFarlane’s case if McFarlane’s conviction had occurred ten days later than it did). This Court’s rule introduces arbitrariness into the process, which the majority explains away as a necessary evil.109 See id. at 819–20 (suggesting that even though the suit against Moynahan was not Brady material due to a matter of ten days, such disparate impacts are inevitable whenever the court establishes a bright-line rule). However, this arbitrariness is anything but necessary.
The majority acknowledged that a line must be drawn somewhere with regards to the exculpatory status for lawsuits against members of the prosecution team.110 McFarlane, 225 N.E.3d at 820. The Court fairly decided not to include civil suits against members of the prosecution team that are unrelated to the performance of that person’s official duties.111 Id. at 821. The Court’s error is that the it excluded too many suits which are related to the performance of official duties. The Court was tasked with resolving a difficult issue: even though pending suits may have merit, not all will prove successful.112 See id. Even so, where there is doubt in questions of exculpatory evidence, the prudent solution is to err on the side of disclosure and to evaluate the evidence thereafter.113 See United States v. Agurs, 427 U.S. 97, 108 (1976). Because pending suits may be exculpatory, the best policy is for prosecutors to disclose to the defense all pending suits against members of the prosecution team.114 See id.
IV. The Court’s Articulation Implicates Larger Public Policy Issues Regarding Disclosure of All Pending Misconduct Suits
A. Disclosure of All Pending Suits Promotes Justice
As happened in McFarlane’s case, pending suits withheld in the pretrial or trial phases of a case may evade the adversarial scrutiny that comes with litigation.115 See Cadene A. Russell, When Justice is Done: Expanding a Defendant’s Right to the Disclosure of Exculpatory Evidence on the 51st Anniversary of Brady v. Maryland, 58 HOW. L.J. 237, 260 (2014) (noting that full disclosure allows defense attorneys to review evidence that may be exculpatory). Those cases then will be examined only by members of the prosecution team, who are least likely to see exculpatory uses of the pending suits and the evidence contained within.116 See id. at 260–62. Because these suits may have exculpatory value, it is desirable to evaluate their admissibility, on the merits, within the adversarial process.117 See Brady v. Maryland, 373 U.S. 83, 87 (1963); Russell, supra note 115, at 260–62.
A system of automatic disclosure for pending misconduct suits would allow defense counsel to review the pending suits and the evidence substantiating them.118 See Russell, supra note 115, at 260. Where the cases are especially strong, defense teams would be able to pursue exculpatory leads rooted in substantiated evidence.119 See Perez v. United States, 968 A.2d 39, 66 (D.C. 2009); Russell, supra note 115, at 245. If defense counsel are never made aware of these pending suits, however, they will have no opportunity to conduct such an investigation.120 See Lindsey v. United States, 911 A.2d 824, 838 (D.C. 2006); Russell, supra note 115, at 245.
In McFarlane’s case, the defense’s investigation was limited by the prosecution’s failure to disclose a pending misconduct suit.121 See Reply Brief for Defendant-Appellant Denzel McFarlane. at 4, Commonwealth v. McFarlane, 225 N.E.3d 812, 820 (Mass. 2024) (SJC-13430), ECF No. 18. McFarlane’s ignorance of the suit against Moynahan did not just prevent him from introducing evidence of that suit in his own trial.122 See id. In fact, knowledge of the civil suit would have led the defense to other sources of evidence that would impeach Moynahan’s credibility.123 See id. at 6–7. The defense remained unaware of the exculpatory evidence’s existence because the Commonwealth never disclosed the suit against Moynahan.124 Id. at 4. The majority’s rule creates more circumstances in which evidence goes unexamined during the adversarial process.125 See Commonwealth v. McFarlane, 225 N.E.3d 812, 820 (Mass. 2024).
If the defense seeks to enter a pending suit into evidence, the judge would still evaluate it for admissibility.126 See In re Grand Jury Investigation, 152 N.E.3d 65, 78 (Mass. 2020) (finding that judges may rule on the admissibility of exculpatory information disclosed to defendants who seek its admission). Where the pending suit has little substantiation or relevance, the judge may deny it, but if the pending suit is highly substantiated and relevant, the judge may admit it into evidence.127 See Mass. Guide To Evid. § 104(b) (Mass. Advisory Comm. on Mass. Evidence Law 2025). As a result, the defense may investigate—and the court may evaluate—the pending suits, unlike the majority’s rule where pending lawsuits for misconduct are automatically regarded as unsubstantiated and non-exculpatory.128 See In re Grand Jury Investigation, 152 N.E.3d at 78; Russell, supra note 115, at 260–62. This alternative rule would promote justice by evaluating cases according to their merit.129See In re Grand Jury Investigation, 152 N.E.3d at 78; Mass. Guide To Evid. § 104(a).
B. Disclosure of Pending Misconduct Suits Would Strengthen Public Trust in the Criminal Justice System
It is important that the criminal justice system maintain the trust of the people it serves.130 Sobel, supra note 2, at 157. When public officials and law enforcement engage in misconduct, they cast doubt on the integrity of the judicial system at large.131See David M. Siegel, Lessons to Be Learned from the First Cases of Discipline of Prosecutors for Failure to Disclose Exculpatory Material, 68 BOS. BAR J., no. 1, Winter 2024, at 15. Automatic disclosure of pending misconduct suits would strengthen public trust in the justice system by providing the public with clarity on how the system works and discouraging official misconduct.132 See Kreag, supra note 3, at 337.
A myriad of factors reduce transparency and public trust in the criminal justice system.133 Kreag, supra note 3, at 337. Prosecutors enjoy wide discretion over whether and when to charge a crime, and that discretion is rarely subject to judicial oversight.134 Kreag, supra note 3, at 337–38. Additionally, the widespread practice of plea bargaining—also subject to little oversight—is conducted out of public view.135 Kreag, supra note 3, at 338. These specific sources of public doubt exist amid wider social concern about systemic bias and injustice in the criminal justice system.136 Sobel, supra note 2, at 157. This holding, by failing to require automatic disclosure of misconduct lawsuits against members of a prosecutorial team, does nothing to address this lack of transparency and instead leaves individuals like McFarlane in the dark.137 See Reply Brief for Defendant-Appellant Denzel McFarlane, supra note 121, at 4.
It is important to remember that while McFarlane’s case dealt with a lawsuit for police misconduct, the SJC’s holding affects all members of the prosecutorial team.138Commonwealth v. McFarlane, 225 N.E.3d 812, 820 (Mass. 2024). Given the exceptional authority prosecutors have in criminal proceedings,139 Kreag, supra note 3, at 337–38. allegations of misconduct against prosecutors can weaken the public’s trust—not only in individual officials, but in the criminal justice system as a whole.140 See Siegel, supra note 131, at 15; Kreag, supra note 3, at 337–39. When the court gives prosecutors more opportunities to withhold evidence of misconduct, the public has even more reason to doubt the justice system’s integrity. Rather than allowing prosecution teams to withhold knowledge of misconduct suits in cases involving those officials, automatic disclosure would allow defendants to investigate those cases and for judges to evaluate them.141 See Russell, supra note 115, at 260. If the courts could judge admissibility on the merits, the public could see for itself when justice is done.142 Kreag, supra note 3, at 337–39.
Transparency regarding lawsuits for official misconduct discourages misconduct across the board.143 See Russell, supra note 115, at 260. Other safeguards ensure that pending suits could not be used where they are irrelevant or unfairly prejudicial to the prosecution, so little social harm would result from their disclosure.144See In re Grand Jury Investigation, 152 N.E.3d 65, 78 (Mass. 2020) (providing that exculpatory information must still be evaluated by a judge before it is admitted into evidence); see also Mass. Guide To Evid. § 104. By contrast, the injury to the public’s faith in the justice system resulting from nondisclosure is manifold.145 See generally Kreag, supra note 3, at 337–39. When dealing with misconduct allegations against the prosecution and its team, transparency is the best policy.
C. Automatic Disclosure of Pending Misconduct Suits Balances Defendant Rights with Prosecutorial Duties
A prosecutor’s duty demands an earnest and vigorous pursuit of justice.146United States v. Agurs, 427 U.S. 97, 110–11 (1976). This pursuit tasks prosecutors with both prosecuting the guilty and protecting the innocent.147Id. A prosecutor who fails to honor the constitutional rights of the accused fails in the pursuit of justice.148 See id. The duty to disclose exculpatory information and the corollary duty to inquire both stem from the prosecutor’s duty to all members of the public, including the accused.149 See id.
The majority’s decision in McFarlane already established a prosecutorial duty to ask members of the prosecution team, including both prosecutors and police, whether any of them have received a finding of liability for misconduct or know of such a finding related to a member of the team.150Commonwealth v. McFarlane, 225 N.E.3d 812, 819–20 (Mass. 2024). A requirement to disclose pending suits for misconduct only slightly expands the Court’s rule.151 See id.at 820–21. This limited expansion of prosecutorial duty, however, is a substantial fulfillment of defendants’ due process rights.152See supra, Part III(B).
Conclusion
The SJC addressed a difficult question in McFarlane: exactly when, and why, does information become exculpatory? Unfortunately, the Court’s rule does too much to limit the duty to disclose. The majority opinion rightly determined that substantiated allegations of misconduct are exculpatory and must be disclosed but failed to consider the ways in which lawsuits for official misconduct are substantiated well before the final disposition. The decision to exclude pending misconduct suits from the duty to disclose means not only that defendants will lose the full protections of due process, but also that salient evidence may go unexamined and public trust in the criminal justice system will falter. When faced with difficult and doubtful questions about whether official misconduct has frustrated the administration of justice, the court must favor transparency.
