RUBY MCDONOUGH, petitioner.

MARSHALL, C.J. A prospective witness for the Commonwealth in a criminal trial, the alleged victim Ruby McDonough, seeks interlocutory appellate review of an order of a District Court judge finding her not "competent" to testify because of her impaired capacity to communicate orally. McDonough's disability is the result of a stroke, which causes her to suffer from "expressive aphasia." [Note 1] Before trial, on motion of the defendant, McDonough's "competency" was evaluated by a court-appointed expert. Focusing "primarily" on McDonough's "intact mental capacity," the expert opined that McDonough was competent to testify, noting that certain methods of questioning McDonough facilitated her communications. The judge's contrary finding rested in substantial part on his own observation that although McDonough can respond to "yes" or "no" questions, she is, in the judge's words, "incapable of providing any narrative." He concluded that permitting her to testify would infringe the defendant's right to cross-examination.

The Commonwealth did not seek appellate review of the judge's order. [Note 2] Represented by new counsel, McDonough then filed a petition in the county court pursuant to G. L. c. 211, § 3, [Note 3] claiming that conducting the hearing on her "competency" to testify without accommodating her stroke-induced disability and the judge's ruling that she could not testify at trial violated her rights under Title II of the Americans with Disabilities Act

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(ADA), 42 U.S.C. §§ 12131 et seq. (2006) [Note 4]; the Massachusetts Equal Rights Act (MERA), G. L. c. 93, § 103; [Note 5] and art. 114 of the Amendments to the Massachusetts Constitution. [Note 6] A single justice reserved and reported the case to the full court, staying the underlying criminal trial pending further order.

Because of the "pervasive unequal treatment" of individuals with disabilities, Tennessee v. Lane, 541 U.S. 509, 524 (2004), the Massachusetts Constitution, Massachusetts statutes, and Federal statutes now impose on State courts certain affirmative obligations to accommodate an individual with disabilities in order to provide her with access to the courts, including providing her with the "same rights as other persons" to "give evidence." G. L. c. 93, § 103 (a). Nevertheless, for the reasons we explain below, we conclude that McDonough has no standing to seek appellate review of the decision of the judge in the District Court that precluded her from testifying in the defendant's criminal trial. Accordingly, we deny her petition. [Note 7]

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However, because there is "considerable doubt" as to the proper appellate procedure in these circumstances, we exercise our general superintendence power pursuant to G. L. c. 211, § 3, "to resolve the doubt" and set forth the appellate procedure to be used in future cases. Commonwealth v. Silva, 448 Mass. 701, 705 n.5 (2007), quoting Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 551 (1977). Last, while we recognize that in many circumstances witnesses (and other court users) with disabilities routinely are provided with accommodations, all without controversy, see, e.g., G. L. c. 221, § 92A (court must appoint "qualified interpreter" in "any proceeding" in which "deaf or hearing-impaired person is a party or a witness"), because of the absence of adequate existing guidance in this important area, we also exercise our superintendence power to offer guidance for trial judges for those few cases where a witness with a disability seeks accommodation in order to testify and the proper resolution of the request is disputed. [Note 8]

1. Background. We summarize the relevant undisputed facts from the record. [Note 9] The defendant was charged in a complaint issued by the Framingham Division of the District Court Department with two counts of indecent assault and battery and one count of assault and battery on a person sixty years of age or older or a person with a disability, G. L. c. 265, §§ 13H and 13K (a 1/2 ). The charges stem from an incident that allegedly occurred on January 28, 2009. [Note 10] Before trial the defendant moved

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for an evaluation of McDonough's competency to testify. Acting pursuant to G. L. c. 123, § 19, [Note 11] the judge appointed a psychologist, Dr. Rosemary Klein, to examine McDonough; Dr. Klein subsequently filed a written report, which necessarily focused primarily on McDonough's "intact mental capacity." After interviewing McDonough and reviewing her medical records, as well as the complaint in this case, Dr. Klein opined in her written report that McDonough was mentally competent to testify. [Note 12] Her opinion is consistent with the opinion of McDonough's primary care physician that McDonough "is not mentally incompetent." [Note 13]

At a hearing in July, 2009, both McDonough and Dr. Klein testified. Although the judge expressed some skepticism concerning McDonough's memory, in his findings he focused primarily on McDonough's ability to communicate. The judge found that McDonough "does understand the difference between truth and falsehood, and her obligation to tell the truth" (emphasis added), but that she is "easily" confused "by the phrasing of a question." The judge made no reference to Dr. Klein's testimony or to her written report. [Note 14] He did not address Dr. Klein's conclusion as to McDonough's difficulty with communication (as opposed to her mental competency) or Dr. Klein's suggestions that McDonough could benefit from specific methods of questioning, the timing of the questions, and the use of gestures or other physical expressions. See, e.g., note 12, supra. Rather, he said that it "became apparent" to him that McDonough "could not recount

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any of the details" of the defendant's alleged touching other than by answering "mainly leading questions 'Yes' or 'No.' " The judge found that McDonough was not "competent" to testify, concluding that were McDonough permitted to testify, the defendant's "rights to a meaningful cross examination would be adversely affected and he could not get a fair trial."

McDonough claims that she was required to testify at the hearing "without interpretive assistance," and that her family members asked to be able to "provide communicative assistance" to her during the hearing, but "were not allowed to participate." The defendant points out that there is no record concerning whether, and if so how, such an offer of "assistance" was made. See note 9, supra. It is, however, undisputed that neither McDonough, her attorney, nor the Commonwealth specifically framed any offer to help interpret McDonough's communications as a request for reasonable accommodation under MERA, art. 114, or the ADA, and that the judge was not asked to, and did not, appoint any expert in communication disorders to evaluate McDonough.

The defendant opposed McDonough's G. L. c. 211, § 3, petition, arguing before the single justice that McDonough did not have standing to challenge the judge's order. The Commonwealth sent a letter to the clerk in the county court to the effect that it did not intend to seek relief pursuant to G. L. c. 211, § 3, and stating that it took "no position" on McDonough's petition. After what it terms "further consideration," the Commonwealth has filed a brief in this appeal and now generally supports McDonough's arguments. [Note 15]

2. Discussion. a. Standing. Our discretionary power of review pursuant to G. L. c. 211, § 3, is "extraordinary," and will be exercised "only in 'the most exceptional circumstances.' " Hagen v. Commonwealth, 437 Mass. 374, 377 (2002), quoting Costarelli v. Commonwealth, 374 Mass. 677, 679 (1978). See Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706 (1990). Parties seeking relief pursuant to G. L. c. 211, § 3, must demonstrate both a "violation of their substantive rights" and the absence of another "adequate or

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effective avenue of relief." Hagen v. Commonwealth, supra, quoting Victory Distribs., Inc. v. Ayer Div. of the Dist. Court Dep't, 435 Mass. 136, 137 (2001).

McDonough acknowledges that as an alleged victim of a crime, she has no legally cognizable interest in the prosecution of the defendant that would permit her to seek review of the judge's order. See Manning v. Municipal Court of the Roxbury Dist., 372 Mass. 315, 317 (1977) (victim of alleged crime has "no right" to challenge judicial determination "which forecloses further prosecution of that alleged crime"). See also Hagen v. Commonwealth, supra at 381-382 (victim lacks standing to file motion to revoke postconviction stay of criminal sentence); Tarabolski v. Williams, 419 Mass. 1001, 1002 (1994), quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (private person "lacks a judicially cognizable interest in the prosecution or nonprosecution of another"). Rather, McDonough claims, she seeks to vindicate a violation of her own substantive right to "give evidence" "with reasonable accommodation" to the same extent as other persons, G. L. c. 93, § 103 (a), and her right not to be "excluded" from "participation in" the programs or activities of the court by "reason of" her disability, under both art. 114 and Title II of the ADA, 42 U.S.C. § 12132 (2006). See notes 4-6, supra. Whatever the scope of the obligation on a State court under the ADA to provide reasonable accommodation to a witness who is disabled in order to permit her to "participat[e] in" judicial proceedings, [Note 16] or the right of a witness

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who has a disability to "give evidence" under MERA or to "participat[e] in" judicial proceedings under art. 114, and whether any of McDonough's rights may have been violated, McDonough may not herself seek interlocutory appellate review of the judge's order because any "right" of hers to testify in the criminal case is contingent on the exercise by the Commonwealth of its discretion to call her as a witness. See Delaney v. District of Columbia, 659 F. Supp. 2d 185, 195 (D.D.C. 2009) (potential witness has no right to testify at criminal trial where neither prosecutor nor defense counsel exercises discretion to call witness). Cf. Ambles v. State, 259 Ga. 406, 409 (1989) ("Any right of a victim to testify in a criminal trial is necessarily subject to the prosecutor's discretion to call the victim to the stand").

In this case the Commonwealth chose not to pursue appellate review of the judge's ruling. See note 2, supra. Where a judge's order precludes a witness from testifying because her disability is not accommodated and the party seeking to introduce the testimony of that witness (here the Commonwealth) declines to pursue review of the ruling, the party has in effect exercised its discretion to forgo use of the witness's testimony at trial. A witness has no right to force a party to try its case in any particular manner. Cf. Manning v. Municipal Court of the Roxbury Dist., supra. Just as a prospective witness has no right to insist on being called to testify, she has no right to force a party to seek appellate review of a judge's ruling that disqualifies her from testifying. [Note 17], [Note 18]

McDonough's substantive rights under MERA, art. 114, and

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the ADA are significant. However, her recourse for any injury she may have suffered is to initiate a separate action in a court of competent jurisdiction. See G. L. c. 93, § 103 (b) ("Any person whose rights under the provisions of subsection [a] have been violated may commence a civil action for injunctive and other appropriate equitable relief . . . in the superior court . . ."); 42 U.S.C. § 12133 (2006) (setting forth "remedies, procedures, and rights" available "to any person alleging discrimination on the basis of disability in violation" of Title II of ADA). Cf. Tennessee v. Lane, 541 U.S. 509, 533-534 (2004) (individual may sue State under ADA claiming infringement of "fundamental right of access to the courts").

We do not fault McDonough for pursuing relief in the manner she did, nor do we fault the Commonwealth for failing to do so: appellate procedures in cases where a witness with a disability has not been provided an accommodation have been far from clear. Exercising our superintendence power pursuant to G. L. c. 211, § 3, we now set forth the appellate procedure to be followed in future criminal cases where a witness (or the party proffering the witness's testimony) requests accommodation for a disability in order to testify at trial, and a judge denies the requested accommodation, thereby preventing her from testifying. [Note 19]

b. Appellate review of requests for accommodation to testify. "As a general rule, there is no right to appeal from an interlocutory order unless a statute or rule authorizes it." Maddocks v. Ricker, 403 Mass. 592, 597 (1988), and cases cited. An order denying a witness a requested accommodation that thereby precludes the witness from testifying does not fit easily within any of the existing statutes or rules applicable in criminal cases.

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See, e.g., G. L. c. 278, § 28E; Mass. R. Crim. P. 15, as appearing in 422 Mass. 1501 (1996). Nevertheless, this court has "wide discretion in devising various procedures for the course of appeals in different classes of cases." Zullo v. Goguen, 423 Mass. 679, 681 (1996), quoting Flynn v. Warner, 421 Mass. 1002, 1003 (1995). See G. L. c. 211, § 3 (this court may issue such "directions and rules as may be necessary or desirable for the furtherance of justice" and "the regular execution of the laws"). Cf. Commonwealth v. Silva, 448 Mass. 701, 704-706 (2007) (clarifying procedure for nonparties to obtain appellate review of impoundment orders in ongoing criminal case); Zullo v. Goguen, supra at 682 (establishing method for appellate review of orders made pursuant to G. L. c. 209A).

To date we have not allowed either the Commonwealth or a defendant to appeal as a matter of right from an interlocutory order that limits the evidence that may be presented at trial. However, an order that does so by denying accommodation of a witness with a disability is distinguishable from other such orders because it implicates not only the right of the party who proffers her testimony, Commonwealth v. Boswell, 374 Mass. 263, 267 (1978) (Commonwealth has "right to present legal evidence"); Commonwealth v. Edgerly, 372 Mass. 337, 343 (1977) (order barring testimony from witnesses in support of alibi defense implicates defendant's constitutional rights), but also the important substantive rights a witness may have under MERA, art. 114, or the ADA. To delay appellate review until final judgment in a criminal trial of an order that may vitiate the rights of the witness would mean that those rights might never be addressed by an appellate court because the defendant may be acquitted, or where the excluded witness is proffered by the Commonwealth and the defendant is nevertheless convicted, review of the order may not be part of any appeal.

Accordingly, in future cases where a judge denies an accommodation requested by a witness (or the party proffering the witness's testimony), thereby precluding the witness from testifying, interlocutory review of the order may be sought as a matter of right by the party seeking to introduce the testimony of the witness. Because substantial rights of the witness are involved, the party may appeal from such an order to a full panel of the Appeals Court. Contrast Mass. R. Crim. P. 15 (a) (2) (party

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must apply to single justice of this court for leave to appeal order determining motion to suppress evidence prior to trial). Such an appeal shall be taken as soon as practicable but in any event within thirty days of the date of the interlocutory order, and in accordance with the Massachusetts rules of appellate procedure. [Note 20]

Because the issue is novel in Massachusetts, and because similar circumstances may arise in the future, we now set forth guidelines that may be utilized in a trial court where a witness seeks accommodation for a disability in order to testify in a criminal case and the issue cannot be resolved without judicial intervention. [Note 21] We anticipate that, in most cases, accommodation of a witness with a disability will be provided without controversy and without the need to resort to the procedures we discuss. Our guidance is directed at those few cases in which the proper resolution of a request for accommodation is disputed. As we cannot anticipate every circumstance that may arise, our comments provide broad guidance; the response in each case will be fact specific. c. Guidelines where resolution of a witness's request for accommodation for a disability is disputed. Where a witness with a disability requests an accommodation in order to testify, MERA requires that the court provide such accommodation, so long as it is "reasonable." G. L. c. 93, § 103 (a). In many cases the

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witness or the party proffering her testimony may suggest or provide an accommodation that is acceptable to all parties and to the judge. But where, as in this case, that does not occur, a judge will be in no position to make a determination whether any accommodation is "reasonable" unless the judge is informed by the witness (or the party proffering the witness) of the need for a particular accommodation.

(i) For that reason, as a first step, a witness with a disability (or the party proffering the testimony of that witness) should alert a judge and the adverse party that the witness needs accommodation, and identify the reasonable accommodation that the witness seeks. Cf. Shedlock v. Department of Correction, 442 Mass. 844, 856 (2004) ("incumbent" on prisoner alleging violation of art. 114 and ADA "to request accommodation in the first instance"); Adoption of Gregory, 434 Mass. 117, 124 (2001) (same for parent alleging ADA violations in custody proceedings); Kiman v. New Hampshire Dep't of Corrections, 451 F.3d 274, 290 (1st Cir. 2006), citing Reed v. LePage Bakeries, Inc., 244 F.3d 254, 260 (1st Cir. 2001) (under ADA, "a person normally must make a specific request for the modification in question"). Because the witness will usually know before trial that she will be called to testify, notification that she requests an accommodation should be filed before trial. See part 2.c(ii), infra.

McDonough argues that a judge should have primary responsibility for identifying the accommodation needs of a witness. We disagree. The judge, in contrast to the party proffering the witness, generally will know little, if anything, about the witness before seeing her, in many cases for the first time when she takes the stand to testify at trial. Imposing the primary obligation on an individual judge to identify the accommodation where a witness (or the party calling the witness) has made no request for accommodation would require every judge in every case to make assumptions about a witness's disability, potentially resorting to stereotypes concerning persons with disabilities, the very practice the Legislature in MERA and Congress in the ADA sought to deter. [Note 22] Cf. Shedlock v. Department of Correction,

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supra (prison officials not required to anticipate prisoner's "unarticulated need" for accommodation). [Note 23]

(ii) On notification that a witness will need accommodation in order to testify, in many cases the matter will be resolved to the satisfaction of all involved without a hearing. If, for some reason, the issue is not resolved, for example where an accommodation for a witness who is disabled is not being provided, or the reasonableness of the accommodation is challenged, or a party contends that a witness should not be permitted to testify because of her need for accommodation, any objection should be presented to the judge, who should resolve the issue at a hearing, preferably before trial.

(iii) At such a hearing a judge should make inquiry on the record of the witness whether she has a disability that requires accommodation, and if so, what accommodation might enable her to testify. If such inquiry cannot be made without accommodation, the judge should order the provision of reasonable accommodation, if available, necessary to make the inquiry. Where appropriate, the judge may appoint an independent expert, e.g., an expert in communicative disorders, to assess the witness's disability and its impact on her ability to testify, as well as the reasonable accommodation, if available, that would permit the

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witness to testify. [Note 24] In resolving a witness's request for accommodation, a judge should give primary consideration to the accommodation requested. Cf. 28 C.F.R. § 35.160 (b)(2) (2009) (under ADA, "[i]n determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities"). [Note 25] Where competency to testify of a witness with a disability is at issue, a judge should determine whether there are reasonable accommodations that would enable the witness to testify competently. [Note 26], [Note 27]

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Because of the possibility of appellate review of a decision concerning a request for accommodation, the judge should make findings adequate to permit such review. See Commonwealth v. Isaiah I., 448 Mass. 334, 339 (2007), S.C., 450 Mass. 818 (2008) (findings of fact "should be stated clearly, concisely and unequivocally, and be worded so that they are not susceptible of more than one interpretation").

d. Reasonable accommodation and cross-examination of a witness. In a criminal proceeding, the determination whether a requested accommodation is reasonable will involve, among other things, consideration of the defendant's constitutional right to cross-examination. See Pointer v. Texas, 380 U.S. 400, 405 (1965) ("the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal"). We have rejected claims that permitting an accommodation of a witness's impaired expressive capacity necessarily violates a defendant's right of confrontation, even where defense counsel is constrained in cross-examining the witness. See, e.g., Commonwealth v. Brown, 451 Mass. 200, 206- 208 (2008) (no confrontation clause violation where witness "had difficulty articulating verbal responses to some of defense counsel's questions" and judge permitted witness to answer some questions nonverbally); Commonwealth v. Barbosa, 399 Mass. 841, 845-848 & n.10 (1987) (same where witness with " 'minimal language skills,' a form of sign language which is not formalized and which uses gestures and pantomime," permitted to testify through interpreter). Numerous other jurisdictions have reached similar results. [Note 28] In this respect People v. Tan Minh Tran, 47 Cal. App. 4th 759 (1996), is instructive. The witness in that case was a quadriplegic who

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could not speak, the victim of a shooting. He testified at trial "by tapping a pencil in response to questions, once for yes and twice for no." Id. at 765. The court reasoned that there was no confrontation clause violation because:

"[T]he limitations on appellant's cross-examination were not placed there by the court, but arose from [the witness's] physical condition. [The witness] was not a mentally incompetent witness; he was a physically disabled one. His limitations extended equally to his ability to communicate to the prosecution as well as the defense. Although it is difficult to cross-examine a person with [the witness's] physical limitations, the court did not act to restrict counsel from cross-examining this witness."

Id. at 770. In instances such as those present in the Tan Minh Tran case, but not present here, the perpetrator of a crime may inflict such grievous injury on a victim that the victim's ability to testify will be severely constrained. To exclude testimony from those individuals where the Commonwealth seeks to punish the perpetrator imposes a particular hardship on the victim. [Note 29]

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3. Conclusion. We are cognizant of the many challenges faced in our society by individuals with disabilities, see Tennessee v. Lane, 541 U.S. 509, 516 (2004), quoting 42 U.S.C. § 12101(a)(7) (individuals with disabilities "have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society"), and of the important public policies reflected in MERA, art. 114, and the ADA to ensure that they are treated equally with other persons. Because of their vulnerabilities, persons with disabilities may often be crime victims, and their interests need protection no less than other victims. See G. L. c. 258B, § 3 (setting forth "rights" of "victims and witnesses of crime"). It is incumbent on all judges and judicial staff to ensure that every person with a disability be provided with reasonable accommodation, if available, to ensure that she can be a full and equal participant in our system of justice.

For the reasons stated above, exercising our supervisory power pursuant to G. L. c. 211, § 3, we conclude that (1) where a witness with a disability requests accommodation in order to testify, MERA requires that the court provide such accommodation, so long as it is "reasonable," G. L. c. 93, § 103 (a); (2) where there is a dispute concerning such a witness's request for accommodation, a judge should conduct a hearing to resolve the dispute, preferably before trial, and the witness should be provided with reasonable accommodation, if available, during the pretrial hearing; and (3) where a judge precludes a witness with a disability from testifying by denying a request for accommodation, the party proffering the witness, but not the witness, may appeal the judge's interlocutory ruling as a matter of right to the Appeals Court.

Because McDonough does not have standing to seek relief from the District Court judge's order, we deny her petition and vacate the single justice's stay of the proceedings. The case is

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remanded to the District Court for further proceedings consistent with this opinion.

So ordered.