Nicholas Brandt, Assistant District Attorney, for the
N. Schneiderman (Laura Alfring also present) for the
Commonwealth appeals from the judgment of a single justice of
this court denying its petition for relief from an
interlocutory order of the Juvenile Court. We reverse.
on information provided by a confidential informant, the
Boston police apprehended, searched, and arrested the
juvenile, D.M., on firearm-related charges.Before a pretrial
suppression hearing in the Juvenile Court, the juvenile
sought an order requiring the Commonwealth to disclose the
identity of its informant and other related information. The
Commonwealth asserted that it was privileged not to disclose
the information, see Commonwealth v. Bonnett, 472
Mass. 827, 846-847 (2015), because disclosure would
jeopardize the informant's safety. It averred that the
informant was not a percipient witness to the juvenile's
arrest, and that the juvenile had not met his burden of
demonstrating that disclosure was required. After a hearing,
the judge allowed the juvenile's motion. The judge
determined that the Commonwealth properly had asserted an
informant privilege, and that the juvenile adequately had
challenged the assertion of the privilege on the ground that
it interfered with his right to present a defense. See
Id. at 846. The judge concluded that the
"informant's identity and concomitant information
are sufficiently 'relevant and helpful to the defense of
an accused' that it must be disclosed." Id.
at 847, quoting Commonwealth v. Dias, 451 Mass. 463,
468 (2008) . The Commonwealth thereafter filed a G. L. c.
211, § 3, petition in the county court, seeking reversal
of the interlocutory ruling and arguing that the judge erred
in allowing the juvenile's motion. The single justice
denied the petition, and the Commonwealth appeals from that
Commonwealth's privilege not to disclose the identity of
a confidential informant "has long been recognized in
this Commonwealth." Dias, 451 Mass. at 468. It
is meant to "encourage 'every citizen' in his
'duty ... to communicate to his government any
information which he has of the commission of an offense
against its laws." Commonwealth v. Swenson, 368
Mass. 268, 276 (1975), quoting Worthington v.
Scribner, 109 Mass. 487, 488 (1872) . The privilege may
be raised where "the Commonwealth otherwise would be
required to provide an informant's identity to a
defendant as part of its discovery obligations."
Bonnett, 472 Mass. at 846. See Commonwealth v.
Hernandez, 421 Mass. 272, 274 (1995). The determination
whether the information may remain confidential occurs in a
two-stage process. See Bonnett, supra. At
the preliminary stage, the trial judge first evaluates
whether the Commonwealth properly invoked the privilege.
Id. at 846-847 (privilege may be asserted "only
where disclosure would endanger the informant or otherwise
impede law enforcement efforts"). According to the
judge's findings in this case, when the juvenile was
apprehended, he was in the company of another person. Both
the juvenile and the other person were identified as being
involved with gang activity. The other person had a
"long history of convictions," as well as a pending
firearm case. The Commonwealth alleged that disclosure of the
identity of the informant would endanger that person. On
these facts, the judge was warranted in concluding that the
Commonwealth properly invoked its privilege.
Bonnett, supra at 845.
preliminary stage of the analysis has a second part, however.
As to that part, as well as at the second stage, the
judge's analysis was flawed: the judge failed to evaluate
the juvenile's need for disclosure in the context of a
preliminary hearing, as opposed to at the trial itself. See
Commonwealth v. Amral, 407 Mass. 511, 518 (1990).
With respect to the second part of the preliminary stage, a
defendant is required to request that the Commonwealth's
privilege be set aside, because it "interferes with a
fair defence." Bonnett, 472 Mass. at 847,
quoting Commonwealth v. Johnson, 365 Mass. 534, 544
(1974), S.C., 372 Mass. 185 (1977) . We have characterized a
defendant's obligation at this juncture as
"relatively undemanding," Bonnett,
supra, but it does require the defendant to
articulate a basis sufficient for the judge to "assess
the materiality and relevancy of the disclosure to the
defense, if that relevancy is not apparent from the nature of
the case." I_d., quoting Commonwealth v.
Kelsey, 464 Mass. 315, 323 (2013). Although the judge
concluded that the juvenile had satisfied that standard, he
failed to recognize that the standards of disclosure are more
demanding where, as here, the disclosure is sought for
pretrial purposes. See Hernandez, 421 Mass. at 275;
Commonwealth v. Lugo, 406 Mass. 565, 574 (1990).
at the second stage of the analysis, it was the judge's
obligation to determine whether the "informant's
identity and concomitant information are sufficiently
'relevant and helpful to the defense of an
accused'" to require disclosure (citation omitted).
Bonnett, 472 Mass. at 847. Again, in making the
determination that the Commonwealth's privilege should
give way, the judge failed to distinguish between "the
need for disclosure at a pretrial suppression hearing and at
the trial proper." Lugo, 406 Mass. at 570-571
("nondisclosure is rather readily countenanced at
pre-trial hearings, but not so at the trial itself").
See Commonwealth v. Madigan, 449 Mass. 702, 706 n.8
(2007), quoting Commonwealth v. Snyder, 413 Mass.
521, 532 (1992) ("[n]ondisclosure of a source of
information that bears on a preliminary question, such as the
suppression of evidence, 'is more readily tolerated than
the nondisclosure at trial of a source of evidence, where
guilt or innocence is directly involved'");
Snyder, supra (mere possibility that
disclosure of informant identity might be helpful on
preliminary question, such as suppression of evidence, not
sufficient to require disclosure); Amral, 407 Mass.
distinction between "a demand for disclosure at a
pretrial hearing, where the issue is probable cause for
arrest or search, and a demand for disclosure at trial, where
the issue is the defendant's ultimate guilt or
innocence," is an important one that long has been
maintained. See Madigan, 449 Mass. at 706 n.8.
Because the judge's analysis conflated the two standards,
and in light of the two important but distinct public
policies at issue, the analytical error should not stand. See
Commonwealth v. Shaughessy, 455 Mass. 346, 355
(2009). While we recognize that a trial judge has
considerable discretion in striking a balance, exercise of
that discretion must be within the confines of the correct
legal framework. See Hernandez, 421 Mass. at 276;
Johnson, 365 Mass. at 545. See also Dias,
451 Mass. at 468-469. In these exceptional circumstances, we
conclude that the single justice abused her discretion in
declining to employ the court's power of superintendence
to rectify the error.
judgment of the single justice is set aside, and the case is
remanded to the county court for entry of a judgment,
pursuant to G. L. c. 211, § 3, vacating the disclosure
order and remanding for reconsideration of the juvenile's
motion in light of this opinion.