COMMONWEALTH vs. JASON R. MAXWELL.

CORDY, J. A judge in the District Court reported two questions to the Appeals Court pursuant to Mass. R. Crim. P. 34, 378 Mass. 905 (1979). We transferred the case to this court on our own motion. The first question concerns the nature and scope of the showing required of the Commonwealth before a defendant may be ordered to submit to a buccal swab for deoxyribonucleic acid (DNA) analysis. [Note 1] The second question concerns whether and how a defendant in a criminal case may properly access medical records relevant to his defense, but protected by the statutory prohibition against releasing human immunodeficiency virus (HIV) test results in the absence of a patient's consent. See G. L. c. 111, § 70F.

For the reasons set forth below, we conclude that, similar to a postindictment request for a blood sample, after a criminal complaint has issued, the Commonwealth may obtain a buccal swab by demonstrating at an adversary (but not necessarily evidentiary) hearing, that the buccal swab will probably provide evidence relevant to the question of the defendant's guilt. See Commonwealth v. Trigones, 397 Mass. 633, 640 (1986). We also conclude that records subject to the protections of G. L. c. 111, § 70F, may be discovered, using the same procedures and standards as those employed for the requested discovery of rape counselling records privileged under G. L. c. 233, § 20J. See Commonwealth v. Fuller, 423 Mass. 216 (1996).

1. Background. Jason Maxwell was charged with sexually assaulting a patient at a hospital where he worked as a laboratory technician. The patient was being treated for a brain infection at the time of the alleged assault. According to a police report submitted to the court, the patient alleged that he was indecently

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touched by a hospital employee who was drawing his blood. The patient then observed the employee masturbate and ejaculate into a rubber glove. The glove was recovered, and testing subsequently confirmed that it contained sperm cells. Based on its records, the hospital identified the employee as Maxwell.

a. The buccal swab. After complaints issued charging Maxwell with indecent assault and battery and indecent exposure, [Note 2] the Commonwealth filed a motion seeking an order compelling him to participate in the production of a DNA sample by permitting a buccal swab to be taken. The motion was supported by the police report of the incident and affidavits from two State chemists. Based on the report and the affidavits, the Commonwealth contended that comparison of the DNA profile of the sperm cells found in the glove with the DNA profile of the biological evidence that would be obtained from the buccal swab, would lead to material evidence regarding Maxwell's guilt as the perpetrator of the indecent assaults. Maxwell argued that in order to obtain the sample the Commonwealth needed to show, at an evidentiary hearing, that there was probable cause to believe he committed the offenses with which he was charged, and that the testing of the sample sought would probably produce evidence relevant to the question of his guilt. [Note 3]

At the hearing on the motion, Maxwell conceded that the testing would probably produce evidence relevant to his guilt, but the judge ruled that the Commonwealth was also required to show probable cause that Maxwell committed the offenses charged as a prerequisite to obtaining the order. The judge concluded, however, that the Commonwealth had adequately made this showing through the submissions supporting its motion,

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and that an evidentiary hearing was not necessary. [Note 4] He then decided to report the question under rule 34.

b. Medical records. Prior to trial and pursuant to Mass. R. Crim. P. 17, 378 Mass. 885 (1979), Maxwell requested that a subpoena issue for the patient's medical records, in order to ascertain the nature, extent, and effect of the brain infection for which he was being treated and the medication he was taking at the time of the alleged assault. That request was allowed, and a subpoena was issued and served on the hospital. [Note 5] The hospital moved to quash the subpoena on the basis of G. L. c. 111, § 70F, which prohibits a hospital from releasing the results of an HIV test without the patient's consent. [Note 6] The hospital contended that § 70F creates an absolute bar to the production of the medical records sought (in the absence of patient consent), and, unlike other similar statutes, see, e.g., G. L. c. 111, § 70 (hospital records generally), and G. L. c. 123, § 36 (certain mental health records), contains no provision for the release of records pursuant to court order.

After finding that it was "undisputed" that the medical records contained information covered by § 70F, and that there was no practical way of redacting the records to avoid its strictures, the judge noted Maxwell's argument that he would be deprived of important evidence in his defense if he were unable to access records bearing directly on the ability of the only percipient witness accurately to perceive and recall the events on which the criminal charges were based. The judge opined that the Bishop-Fuller protocol [Note 7] seemed to be the most analogous and appropriate procedure through which to balance

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the conflicting statutory and constitutional interests at stake, but in the absence of precedent regarding the protections afforded medical records subject to § 70F, he determined to report the question of its applicability. [Note 8]

2. Discussion. a. Buccal swab. Although implicating the protections afforded by the Fourth Amendment to the United States Constitution against unreasonable searches and seizures, a buccal swab is no more intrusive than the taking of a blood sample. [Note 9] We have considered requests by the Commonwealth to compel the latter at various stages of a criminal proceeding. At the precharge stage, we have concluded that a search warrant for a blood sample can be issued only on a showing of probable cause that the subject of the warrant committed a crime and that the evidence sought would aid in its investigation. Matter of Lavigne, 418 Mass. 831, 835-836 (1994). In the context of a grand jury investigation, such evidence may be compelled only if the grand jury have "a reasonable basis for believing (have probable cause for believing, if you wish) that a blood sample will provide test results that will significantly aid . . . in their investigation of circumstances in which there is good reason to believe a crime has been committed." Matter of a Grand Jury Investigation, 427 Mass. 221, 226, cert. denied sub nom. A.R. v. Massachusetts, 525 U.S. 873 (1998). See Commonwealth v. Williams, 439 Mass. 678, 682-683 (2003). Finally, a request for

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a postindictment order to obtain such a sample must be based on a showing that the "defendant's blood will probably produce evidence relevant to the question of the defendant's guilt." Commonwealth v. Trigones, 397 Mass. 633, 640 (1986). [Note 10]

In each of these contexts, the person from whom the sample is sought must be given notice and an opportunity to be heard. Although the burden at such a hearing is on the Commonwealth to make the requisite showing, a judge need not hold an evidentiary hearing, nor must the Commonwealth produce testimonial evidence to meet its burden. Commonwealth v. Williams, supra at 684 (affidavit of member of grand jury or prosecutor, or submission of grand jury testimony adequate); Commonwealth v. Trigones, supra (indictment, affidavit, and uncontroverted statements of prosecutor made and recorded in open court adequate). [Note 11]

The Commonwealth's motion in the present case should be handled in the manner prescribed in Commonwealth v. Trigones, supra. As in Trigones, the request comes after criminal charges have been brought. There is no analytical difference between an indictment, returned by a grand jury, and a complaint issued by a clerk-magistrate on the sworn statement of a police officer or other complainant. In both circumstances, there has been a finding of probable cause sufficient for the initiation of formal criminal proceedings. [Note 12] Consequently, to obtain a buccal swab at this stage, the Commonwealth's burden

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is merely to show that the sample sought will probably provide evidence relevant to the question of the defendant's guilt. [Note 13] See Commonwealth v. Beausoleil, 397 Mass. 206, 222, 223 (1986) (in paternity prosecution, "probable cause to believe that the [blood] test results will be inculpatory exists when a complaint is issued on probable cause . . . charging a putative father with paternity").

This burden can be met through the submission of affidavits and documentary evidence as may be necessary in the circumstances or required by the judge. While an adversary hearing must be held, the holding of an evidentiary hearing, beyond the submissions of the parties, is not required.

b. Medical records. "The Legislature has accorded a privilege to many types of records that are often sought in prosecutions for sexual assault, but the legislative creation of such privileges cannot trump a defendant's constitutional right to a fair trial. See Commonwealth v. Bishop, [ 416 Mass. 169,] 177, 182-183 [(1993)]; Commonwealth v. Stockhammer, 409 Mass. 867, 883 (1991); Commonwealth v. Two Juveniles, 397 Mass. 261, 266-267 (1986)." Commonwealth v. Sheehan, 435 Mass. 183, 195-196 (2001) (Sosman, J., concurring). It does not "belittle the compelling justification that underlies these privileges" to

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acknowledge the paramount importance of the constitutional right of one accused of crime to a fair trial. Id. at 196 n.4 (Sosman, J., concurring).

The medical records at issue here are protected by the strictest form of legislatively created privilege. Section 70F provides no exceptions to the prohibition against disclosure imposed on medical facilities with access to HIV testing information, short of the "written informed consent" of the subject. It is not, however, the only legislatively created privilege intended to be as absolute as the law allows.

Beginning at least as far back as Commonwealth v. Two Juveniles, supra, this court has grappled with the need to balance the high degree of protection intended for certain sensitive and intensely personal records with a "criminal defendant's constitutional right to present evidence shown to be relevant and likely to be significant" to his defense. Id. at 266. In each instance, we have concluded that there are circumstances in which even "absolute," nonconstitutionally-based privileges such as expressed in § 70F must yield to those constitutional rights. [Note 14] In Commonwealth v. Two Juveniles, supra, the rape counselling records privilege found in G. L. c. 233, § 20J, was at issue. The statutory language was as absolute, and even more explicit, than the language present here. [Note 15] Yet, the court concluded that on a showing of legitimate need for access by a defendant, the privilege must give way, at least for an in camera

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inspection of the records by a judge.

This same privilege was at issue in Commonwealth v. Fuller, 423 Mass. 216 (1996), in which we concluded that the balancing test and protocols adopted in Commonwealth v. Bishop, supra, regarding access to other privileged records, ought to apply when a defendant seeks access to records protected by § 20J. In so holding, we adopted a heightened standard to describe the threshold showing a defendant must make to obtain access to highly privileged records such as rape counselling records. Commonwealth v. Fuller, supra at 225-227. "[O]nly when a defendant's motion for production of the records has demonstrated a good faith, specific, and reasonable basis for believing that the records will contain exculpatory evidence which is relevant and material to the issue of the defendant's guilt," should a judge undertake even an in camera review of the privileged records. Id. at 226.

There is no difference between records protected by the "absolute" statutory privilege of § 20J and those comparably protected by § 70F. [Note 16] The interests to be balanced are similar in nature and importance. The Bishop-Fuller protocol and standards are equally relevant and applicable. The judge should use that protocol in considering what, if any, of the medical records of the patient must be disclosed to the defendant in order to ensure his constitutional right to a fair trial. [Note 17]

3. Conclusion. The case is remanded to the District Court for

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further proceedings consistent with the answers to the judge's questions contained herein.

So ordered.