Argued: February 3, 2015.
Suffolk. Adjudication of contempt in the Superior Court Department by Jeffrey A. Locke, J., on April 9, 2013.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
John H. Cunha, Jr. ( Charles Allan Hope with him) for the defendant.
Teresa K. Anderson, Assistant District Attorney ( Ursula A. Knight, Assistant District Attorney, with her) for the Commonwealth.
William Trach, Laura Carey, P.R. Goldstone, & Chauncey B. Wood, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ.
[31 N.E.3d 1117] Duffly, J.
The Commonwealth seeks to compel Christopher Kostka to provide a saliva sample from which it may obtain Christopher's deoxyribonucleic acid (DNA). The Commonwealth filed a motion in the Superior Court to compel the taking of a saliva sample, arguing that a DNA sample is necessary in order to determine whether Christopher is the identical or fraternal twin of his brother, Timothy Kostka, who has been indicted on charges of
murder in the first degree and armed home invasion. Christopher is not a suspect in that case. A judge of the Superior Court allowed the Commonwealth's motion and ordered Christopher to provide a buccal swab;  Christopher refused to comply, and a judgment of contempt was entered against him. After the Appeals Court affirmed the judgment, Commonwealth v. Kostka, 86 Mass.App.Ct. 69, 72-73, 12 N.E.3d 1045 (2014), we granted Christopher's application for further appellate review. We conclude that the Commonwealth has not made the requisite showing, see Commonwealth v. Draheim, 447 Mass. 113, 849 N.E.2d 823 (2006), to support the compelled production of a DNA sample from an uncharged third party in a criminal proceeding and, accordingly, that the judgment of contempt must be reversed.
In support of its motion, the Commonwealth submitted affidavits from Boston police criminalist Joseph Ross and Boston police Detective Philip J. Bliss. We summarize the factual assertions contained in those affidavits, which the Commonwealth intends to establish at trial. On April 16, 2012, at approximately 10 a.m., the victim, Barbara Coyne, was found in her bedroom, bleeding profusely. She was transported by ambulance to a hospital, where she died at 10:37 a.m. The medical examiner determined the cause of death to be homicide by " sharp force object," that is, by stabbing; the victim suffered multiple wounds, some of which appeared to be defensive. Evidence collected from under the victim's fingernails was tested and found to be consistent with a mixture of DNA from two or more individuals, including that ...