Tending the Garden: Two Perspectives on Reforming the Patient-Psychotherapist Privilege in Employment Discrimination Litigation

Point/ Counterpoint


Employment discrimination cases often feature a claim for emotional distress damages.  In defending against such a claim, an employer sometimes seeks access to the plaintiff’s mental health treatment records, looking for evidence that external or pre-existing factors caused the alleged injury. Disclosure of those records is generally prohibited by the patient-psychotherapist privilege, which protects the confidentiality of communications and records regarding the patient’s treatment. When disputes over these mental health records arise, courts must decide whether the plaintiff has waived that patient-psychotherapist privilege and thereby exposed the therapy records to discovery. In Massachusetts, the current test is a largely discretionary one in which the judge’s focus is on whether the plaintiff has pled more than “garden variety” emotional distress damages and whether the “interests of justice” weigh more heavily in favor of disclosure than confidentiality. In theory, this garden variety test strikes a balance between the plaintiff’s expectation of privacy and the defendant’s interest in accessing probative evidence for its defense. But, in practice, the test’s subjectivity produces uncertainty (and arguably unfairness) for both parties, leaving disclosure of the plaintiff’s deepest confidences—and what may be the defendant’s best chance of disproving damages—to the personal predilections of a judge. This article reviews the relevant case law, and presents two contrasting visions of potential reform.


The United States Supreme Court first recognized the patient-psychotherapist privilege in 1996 in Jaffee v. Redmond. There, the Court reasoned that the relationship between psychotherapist and patient necessitates “full and frank communication,” and that “[t]he mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.”[1]  The Jaffee decision recognized that, like other privileges, plaintiffs could waive the patient-psychotherapist privilege in certain circumstances; but the Court left it to lower courts to develop standards for determining when waiver is appropriate.

Since Jaffee, courts across the country have developed divided approaches to the issue of waiver.[2]  A minority have adopted the defendant-friendly position that waiver of the patient-psychotherapist privilege follows whenever a plaintiff seeks emotional distress damages of any kind or degree. Others hew more closely to the common law of attorney-client privilege, holding that plaintiffs waive their patient-psychotherapist privilege only when they rely on confidential psychotherapy communications or call a mental health professional to testify at trial. Finally, many courts have treaded a middle ground in the so-called “garden variety” approach. Under this approach, courts are apt to find that a plaintiff has waived the privilege when seeking “more than garden variety” emotional distress damages. There is no universal definition of “garden variety” emotional distress, but the Western District of New York’s attempt to give shape to the term is fairly representative: “Garden variety claims refer to claims for compensation for nothing more than the distress that any healthy, well-adjusted person would likely feel as a result of being so victimized; claims for serious distress refer to claims for the inducement or aggravation of a diagnosable dysfunction or equivalent injury.”[3]

Massachusetts adopted a version of the “garden variety” approach via statute, which also considers whether the interests of justice weigh against or in favor of waiver.  Section 20B of Mass. Gen. Laws. c. 233 states that waiver is appropriate in cases “in which the patient introduced his mental or emotional condition as an element of his claim or defense, and the judge … finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected.” State and federal trial courts interpreting this guidance have generally concluded that a plaintiff introduces her mental or emotional condition as an element of a claim or defense when she seeks more than “garden variety” emotional distress damages, or claims that the defendant caused a “psychic injury” or “impairment of mental health.”[4] 

Yet confusion has arisen as courts have attempted to define “garden variety.” A review of Massachusetts case law reveals that there is little consensus around where garden variety distress ends and extraordinary psychological injury begins. Some courts have found that plaintiffs claiming “mental anguish [and] severe emotional distress, including physical and mental suffering” and “intentional infliction of severe emotional distress” did not introduce their mental condition as an element of their claims, and thus did not waive the privilege.[5] At the same time, others have found that allegations of “great emotional, psychological, and physical harm” and “irreparable mental damage and extreme impairment of mental health” were enough to clear the garden variety hurdle and compel disclosure of treatment records.[6] These contradictory outcomes indicate that parties cannot reliably predict when a court will find that a plaintiff is seeking more than “garden variety” damages based simply on the vocabulary used to articulate the claim. Rather, whether a plaintiff pleads something more than garden variety distress depends largely on the discretion of the particular judge presiding over the case.

Section 20B’s “interests of justice” prong produces additional ambiguity. Specifically, it empowers courts to bar disclosure of treatment records even when a plaintiff seeks more than garden variety emotional distress damages if the interests of justice weigh in favor of preserving the privilege. In recent years, Massachusetts courts have increasingly relied on the interests of justice rationale to protect the privilege, unless the plaintiff calls a mental health professional to testify or introduces the content of her communications with a therapist as evidence at trial.[7]  Defendants may nonetheless argue for disclosure by making “a specific showing that the truth-seeking function of the trial will be seriously impaired unless a disclosure of the communication is ordered;”[8] but this, too, proves to be a highly subjective and uncertain standard when actually applied.  Thus, Massachusetts judges appear to be driving § 20B’s waiver standard toward the “narrow” approach adopted by other state and federal courts, but with none of the predictability associated with a bright-line rule.

The result is a subjective, content-less standard that presents challenges for both plaintiffs and defendants in employment discrimination cases. Even after carefully crafting a claim for emotional distress, plaintiffs may be unable to dictate or predict whether their treatment records will become subject to disclosure. At the same time, they walk a fine (and fuzzy) line between recovering their emotional distress damages and exposing their treatment records to discovery. Defendants, in turn, have little insight into or control over whether they will be able to develop an informed defense by gaining access to the plaintiff’s mental health history. In short, neither party has fair notice as to how the case is likely to play out. 

 We propose two alternate pathways to reform. While opposed in important respects regarding how and where the balance of fairness and public policy are properly struck, each approach would provide more predictability than the current standard.

[1] Jaffee v. Redmond, 518 U.S. 1, 10–11 (1996).

[2] For a thorough discussion of the different approaches that courts have taken toward waiver of the patient-psychotherapist privilege, see Helen A. Anderson, The Psychotherapist Privilege: Privacy and “Garden Variety” Emotional Distress, 21 Geo. Mason L. Rev. 117 (2013); see also Laudicina v. City of Crystal Lake, 328 F.R.D. 510. 513-14 (N.D. Ill. 2018) (Johnston, Mag.) (reviewing the “three approaches” to the issue of waiver); Cappetta v. GC Services Ltd. Partnership, 266 F.R.D. 121,127-29 (E.D. Va. 2009) (Lauck, Mag.) (same).

[3] Willey v. Kirkpatrick, No. 07-CV-6484CJS, 2011 WL 4368692, at * 7-8 (W.D.N.Y. Sept. 19, 2011) (Payson, Mag.).

[4] Sorenson v. H & R Block, Inc., 197 F.R.D. 199, 204 (D. Mass. 2000) (Collings, Mag.) (citing Jacobs v. Vachon, No. 961506, 2000 WL 281665 (Mass. Super. Jan 28, 2000) (Hamlin, J.).

[5] Sorenson, 197 F.R.D. at 204; Myers v Tom Foolery’s Inc., No. WCV98353A, 1999 WL 1025364, at *2 (Mass. Super. Sept. 29, 1999) (Hillman, J.).

[6] Tauro v. Gange & Sons, No. CA 952757C, 1996 WL 1186815, at *1 (Mass. Super. July 18, 1996) (Gershengorn, J.); Jacobs, 2000 WL 281665, at *2. See also Guimares v. Del Prete, No. 95-0738-A (Mass. Super. Apr. 27, 1996) (Brassard, J.) (“irreparable mental and emotional damage”).

[7] See, e.g., Conklin v. Feitelberg, 146 F. Supp. 3d 430, 436-38 (D. Mass. 2015) (Dein, Mag.); Saunders v. FA Bartlett Tree Expert Co., No. 5-CV-12358-NG, 2006 WL 8459043, at *5 (D. Mass. Mar. 15, 2006) (Alexander, Mag.);  Robart v. Alamo Rent-a-Car, LLC, No. 034603J, 2005 WL 1009746, at *3-4 (Mass. Super. Mar. 16, 2005) (Gaziano, J.); Linscott v. Burns, No. C.A.2003-00648, 2005 WL 351039, at *3 (Mass. Super. Jan. 27, 2005) (Agnes, J.); Donovan v. Prussman, No. CIV. A. 99-175D, 2000 WL 1257463, at *4-7 (Mass. Super. Aug. 28, 2000) (Agnes, J.).

[8] Linscott, 2005 WL 351039 at *3; see also Donovan, 2000 WL 1257463 at *7.

Defendants’ Position


by Douglas Brayley & Matthew Carrieri


The current standard governing waiver of the patient-psychotherapist privilege unjustifiably tilts the resolution of emotional distress damage claims in the plaintiff’s favor. Massachusetts courts may have developed the “garden variety” test in a sincere attempt to balance the interests of plaintiffs and defendants. However, what has become the routine invocation of the garden variety talisman permits plaintiffs to shield highly relevant information from discovery while still seeking (and recovering) extraordinary damage awards. In practical terms, defendants in employment discrimination lawsuits often find themselves denied access to the most probative evidence available for rebutting a claim that their actions proximately caused an employee to suffer potentially millions of dollars in emotional distress damages. In short, the status quo is unfair to employer defendants.

Our proposed solution is simple. First, plaintiffs who claim only “garden variety” damages—and thus assert the privilege—should thereby assent to certain trial limitations. Specifically, upon invocation of the privilege, the trial court should (1) hold that therapy records and related evidence are inadmissible; and (2) give a jury instruction explaining that the plaintiff seeks (and may be awarded) only “garden variety” emotional distress damages. The instruction should articulate the recoverable damages as compensating, in the words of the Western District of New York, “[n]othing more than the distress that any healthy, well-adjusted person would likely feel as a result of being so victimized.”  Other potential consequences arising from the plaintiff’s invocation of the privilege might include imposing reasonable limitations on what plaintiff’s counsel can allege by way of emotional distress in opening statements and closing arguments, and vesting the court with discretion to order remittitur if the jury’s damage award exceeds what the court deems to be reasonable for “garden variety emotional distress.” Under this approach, the power to preserve or waive the privilege remains with the plaintiff, but reasonable conditions on its invocation safeguard the defendant’s interest in developing an informed defense on the issue of damages.

Second, the conditions that attach to preservation of the privilege—and the very definition of “garden variety” emotional distress—should ideally be laid out in a statute, and not developed through the courts. Codifying the terms of privilege preservation and waiver would reduce much of the uncertainty that plagues the current application of the garden variety test. Together, these reforms would rebalance the undue advantages that plaintiffs have come to enjoy in discovery disputes over therapy records, while protecting both parties’ interests in fairness and predictability.

The following hypothetical illustrates the dangers that the current garden variety test poses for employers. A non-White employee in a majority White office applies for a promotion within her department. Her White manager has harbored concerns about her job performance for some time now—her in-office attendance has been spotty and her work product sub-par for months. Nonetheless, she has worked for the company in the same capacity for a couple of years, and employees in her position are normally promoted around the two-year mark. After comparing this employee against the pool of internal candidates, the manager decides to go with a slightly more junior candidate, who happens to be White. However, the manager likes the employee and wants her to succeed, so the manager holds a meeting with her to discuss how her performance might be improved ahead of the next job opportunity. The manager thinks the meeting went well.

Unbeknownst to the employer, this employee has been struggling with clinical depression triggered by traumatic events in her personal life. To date, however, she has chosen not to take time off from work or otherwise disclose her situation to anyone other than a psychotherapist. Distraught that her employer bypassed her for a promotion despite what she perceives as her hard work and grit, and on the advice of her doctor, the employee takes an extended leave from work. Then, while on leave, she files a charge with the Massachusetts Commission Against Discrimination, claiming that her employer discriminated against her on account of race. 

The employee eventually removes the case to Massachusetts Superior Court, where she seeks $5 million in emotional distress damages. In her complaint, the plaintiff alleges that the employer’s job actions caused her to experience “severe emotional distress and mental anguish, which produced both physical and mental suffering.” The employer is taken aback by the amount of damages sought by this employee for simply having been denied a promotion, and wonders whether an intervening cause may actually have triggered her alleged distress. Having heard a workplace rumor that the employee may recently have begun therapy, the employer serves discovery requests for—and eventually moves to compel production of—the employee’s treatment records.  (Consider, by way of comparison, a defendant’s commonplace request for medical records in a tort action involving physical injuries, which records are sought for the purpose of exploring the extent to which the alleged harm may have originated from a pre-existing condition.)[1]  

The employee opposes the motion, asserting that she has alleged no more than garden variety emotional distress. Applying Section 20B’s test, the trial court agrees that the employee’s allegation of only garden variety emotional distress has not introduced her mental condition as an element of the claim. The court is likewise not convinced that the proceedings’ truth-seeking function would be seriously impaired if the employer were not permitted to mine the employee’s psychiatric records. Accordingly, the court declines to compel disclosure.

The employer now occupies an untenable position. Without access to the employee’s mental health records or the ability to cross-examine her treating psychotherapist, it is much more difficult to prove that anything other than the employer’s decision to deny the subject promotion caused plaintiff to suffer her claimed emotional distress. At the same time, there is virtually no constraint on a jury’s eventual ability to award the full requested $5 million in damages. (A recent amendment to Section 13B of Mass. Gen. Laws c. 231, allowing a plaintiff to request a specific amount of damages during closing arguments, heightens the risk of this unfairness.) Feeling unable to present a cogent defense on damages, the employer settles for an amount far greater than it otherwise would have, primarily to mitigate the risk of an outsized jury award.

It is difficult to see how the status quo serves the “interests of justice” intended by Section 20B. A plaintiff should not be allowed to block a defendant’s attempt to take discovery of his or her mental health condition and records, and yet still collect an extraordinary award for what the plaintiff concedes is an ordinary level of emotional or psychological harm. This result flies in the face of common sense, never mind fairness. The law should only allow ordinary or “garden variety” harm to be compensated with ordinary damages. Finally, neither party should be required to guess how a judge will rule on a basic, though highly consequential, evidentiary issue.

Imposing trial limitations on plaintiffs who profess only “garden variety” emotional distress damages would be an appropriate and overdue step towards fairness. A recent decision of the U.S. District Court for the District of Maine shows how this approach might work in practice. In Doe v. Brunswick School Dep’t, No. 2:15-cv-257-DBH, 2016 U.S. Dist. LEXIS 59107 (D. Me. Apr. 29, 2016), a student claimed that he and his mother had experienced “emotional pain and distress, suffering, mental anguish, and loss of enjoyment of life” on account of his school’s failure to address repeated instances of sexual, physical, and verbal abuse. The defendant school sought access to the student’s therapy records, including those pre-dating the alleged instances of abuse, and the student’s mother invoked the patient-psychotherapist privilege. The court declined to compel production, but in doing so required the student and his mother to withdraw any claims for emotional distress damages other than those that would “likely be felt by any healthy, well-adjusted person” (i.e., that are of a “garden variety” nature), and to forfeit their right to rely on medical or mental health experts or records to prove damages. The court made clear that, should the plaintiffs fail to abide by those limitations, it would consider the privilege waived and order discovery of the student’s therapy records. While Brunswick does not prescribe how such limitations would be enforced at trial, a jury instruction and/or explicit remittitur power vested in the judge would be reasonable means of doing so. 

The Brunswick approach benefits plaintiffs and defendants alike. The plaintiff retains control over waiver of the privilege, but no longer needs to worry about painstakingly crafting her complaint for damages in the hope that a judge will discern only garden variety distress in its language. Instead, the plaintiff makes a simple choice: waive the privilege and seek extraordinary damages, or preserve it and accept ordinary relief. The defendant, on the other hand, no longer faces the dilemma of having to rebut a claim for extraordinary damages without the probative evidence it needs to build a defense.

Reform should ideally be carried out through legislative action rather than in the courts, given that much of the current uncertainty results from the unpredictable exercise of judicial discretion. A statute or other rule that defines what exactly constitutes “garden variety” emotional distress, and spells out the other conditions and consequences that will attach should the plaintiff invoke the privilege, would give all parties fairer notice and better secure the interests of justice.

Douglas Brayley is a partner in the Employment, Executive Compensation, and Employee Benefits group at Ropes & Gray LLP, and leads the firm’s employment litigation practice.  Doug represents employers in complex employment disputes and internal investigations, and advises employers on a wide range of labor and employment issues in the context of mergers and acquisitions as well as day-to-day operations.

Matthew Carrieri is an associate in the Employment, Executive Compensation, and Employee Benefits group at Ropes & Gray LLP.  Matthew represents clients in litigation before state and federal courts and at arbitration, and advises employers on labor and employment matters.

[1] The analogy is apt. See, e.g., Linscott, 2005 WL 351039 at *2  (“[A] party with a pre-existing condition … who suffers a physical injury is permitted to recover damages for the aggravation to that pre-existing condition whether it is physical or emotional.”) (citing Wallace v. Ludwig, 292 Mass. 251, 254–55 (Mass. 1935) (Rugg, J.)).

Plaintiffs’ Position

Monica_106x126Caroline106x126by Monica R. Shah & Caroline Davis


Evidentiary privileges, like the patient-psychotherapist privilege, the spousal privilege, or the better-known attorney-client privilege, have long “been found, through centuries of experience, to outweigh the public interest in the search for truth.”[1] By their very nature and design, these privileges deny access to testimony or evidence that would otherwise be relevant, probative, and, in many cases, highly sought after. Nonetheless, our courts enforce these privileges because the “very real interest[s] to be protected” trump the judicial system’s quest for truth and litigants’ presumptive obligation to produce relevant evidence.[2] 

Like other privileges protected by law, the patient-psychotherapist privilege protects an important public good: “the imperative need” for “an atmosphere of confidence and trust,” which is essential for “[e]ffective psychotherapy.”[3] As the Supreme Court has recognized, “[b]ecause of the sensitive nature of the problems for which individuals consult psychotherapists, . . . the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.”[4] Therefore, severely restricting the possibility of disclosure – and investing the plaintiff with the ability to predict and control the same –  is essential to preserving the public good for which that privilege was established. 

Nearly a quarter of Massachusetts residents rely on or attempt to obtain psychotherapy or counseling services, a number that is only increasing as a result of the mental health ramifications of the COVID-19 pandemic.[5] Unfortunately, this critical public good is routinely undermined and jeopardized by the current approach to waiver of the patient-psychotherapist privilege adopted by the Massachusetts courts. Courts applying Massachusetts’ current test—which considers whether the plaintiff has alleged more than “garden variety” emotional distress, and whether the interests of justice weigh in favor of confidentiality or disclosure—frequently reach widely divergent conclusions in similar factual scenarios.  

As the law currently stands, even plaintiffs who expressly disavow any intent to claim more than garden variety emotional distress damages—or, in some cases, any emotional distress damages at all—sometimes find their confidential records subject to disclosure. For example, in recent cases applying Massachusetts’ current approach, state courts concluded that plaintiffs asserting “neurological damage” or a “physical injury accompanied by severe pain and suffering including persistent headaches, loss of memory and ability to concentrate,” actually raised their “mental condition” and thus waived the patient-psychotherapist privilege, even despite the plaintiffs’ explicit claims to the contrary.[6]  

In recent years, some Massachusetts courts have trended toward increased protection for patient-plaintiffs, adopting reasoning that echoes other states’ “narrow approach.” These courts have concluded that the interests of justice support disclosure of confidential communications only in limited circumstances, including when the plaintiff introduces testimony from her psychotherapist or relies on communications and records from her treatment.[7] Federal courts in Massachusetts have also followed the more narrow approach to privilege waiver.[8] Other Massachusetts courts, conversely, have taken a more expansive view of the interests of justice, weighing the confidential nature of the records against their evidentiary value on a case-by-case basis.[9] These divergent approaches leave patient-plaintiffs unable to control or predict whether a court will deem their privilege waived.  Unless Massachusetts narrows its approach to waiver, “the promise of confidentiality” will remain “contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure;” and, just as the Supreme Court predicted in Jaffee, “the effectiveness of the privilege” will be “eviscerate[d].”  

The so-called “narrow approach”—under which the patient-psychotherapist privilege is waived only when the plaintiff makes affirmative use of the privileged material in advancing his or her claims—is the best alternative, as some Massachusetts courts have already recognized. In order to properly serve the important private and public interests which underlie that privilege, Massachusetts courts should construe Section 20B to find that “it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected” only where the plaintiff herself introduces or relies upon those communications at trial.

First, predictability and control by the plaintiff is key. An approach that places waiver of the patient-psychotherapist privilege reliably within the patient-plaintiff’s control is essential to serving both the individual’s private interests in protecting confidential communications and the public interest in facilitating effective treatment for persons in need of psychiatric care. The narrow approach “provides the best means of carrying out the Supreme Court’s directive, as articulated in Jaffee, that decisions regarding application of the psychotherapist-patient privilege should be predictable, and should not be made by balancing the plaintiff-patient’s interest in privacy against the defendant’s need for the evidence.”[10]  

Most importantly, the narrow approach best serves the critical public policy interests (and the evident legislative intent) underlying the patient-psychotherapist privilege. Like all privileges, the patient-psychotherapist privilege exists because the public benefits of protecting certain confidential communications outweigh litigants’ interests in equal and fair access to relevant evidence. In recognizing the patient-psychotherapist privilege, the Jaffee court weighed and balanced these competing interests and concluded: the patient-psychotherapist privilege “serve[s] a public good [which] transcend[s] the normally predominant principle of utilizing all rational means for ascertaining truth.”[11]  In other words, the public benefits of the privilege trump individual litigants’ entitlement to relevant evidence, and our courts should thus adopt an approach which incentivizes and “facilitate[s] the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.”[12]  

In fulfilling these public policy goals, the narrow approach will ensure proper functioning of both the patient-psychotherapist relationship and the judicial system. Without confidence that their communications will not later be revealed against their will, patients in need of mental health services are less likely to pursue such services or to share honestly and effectively with their treatment provider. Similarly, unless they can be assured that bringing claims will not result in a forfeiture of the privilege to protect their most deeply felt mental health confidences, victims of employment discrimination will be less likely to avail themselves of the remedial recourse of laws intended to protect their civil rights. The judicial system’s goal of making injured plaintiffs whole is poorly served when prospective plaintiffs are forced to choose between pursuing their claims and protecting the confidentiality of their privileged communications. Additionally, both plaintiffs and defendants are likely to benefit from enhanced opportunities for plaintiffs to access effective psychotherapy. Therapy will often improve the patient-plaintiff’s mental state, and thereby help mitigate damages or avoid litigation altogether. 

By its very nature and purpose, an evidentiary privilege limits a litigant’s access to relevant evidence, and that limitation is a necessary consequence of any approach to the issue. But in every case, the narrow approach will foster an equal and predictable universe of evidence upon which plaintiff and defendant alike may rely at trial: if the plaintiff relies on confidential communications with a psychotherapist, then the privilege is waived and those records will be subject to discovery by the defendant; but if the plaintiff does not introduce those confidential communications, then neither party may look to the plaintiff’s psychotherapy treatment for evidence for or against the plaintiff’s claims.

At the same time, even under the narrow approach, other methods and avenues for discovery of the plaintiff’s mental state remain available to defendants. When the plaintiff chooses not to waive her privilege, “the defendants remain free to question the plaintiff about the fact of psychotherapy treatment and can still probe the plaintiff’s credibility and inquire into his  past for the purpose of showing that his emotional distress was caused at least in part by events that were not related to the alleged acts of the defendants.”[13] Modern discovery practices provide ample opportunity for a defendant to probe the plaintiff’s mental health status, even without access to confidential treatment records. For example, defendants may be able to obtain information and documents (including emails, text messages, social media postings and non-privileged medical records) reflecting plaintiff’s emotional state, and then depose the plaintiff and other witnesses about stressors in the plaintiff’s non-work life without needlessly invading therapeutic communications.  

Despite the efforts of some Massachusetts courts to establish a helpful framework, the “garden variety” approach has failed to coalesce into a predictable and useful body of law. Instead, the current approach has produced decades of inconsistent decisions, created disincentives against both seeking psychotherapy and pursuing justice via our civil legal system, and ultimately failed to serve the public interests underlying the privilege itself. In order to resolve the inconsistencies and serve those public interests, Massachusetts should adopt the “narrow approach” and protect the confidentiality of psychotherapist communications unless the plaintiff introduces or relies on those communications when making her claims. 

Monica R. Shah is a partner at Zalkind Duncan & Bernstein LLP where she focuses her litigation practice on plaintiff’s side employment law, criminal defense, and Title IX matters.  In her employment work, she advocates for employees in discrimination, sexual harassment, FMLA/disability, and wage and hour cases in state and federal courts, and counsels employees on a variety of workplace matters, including employment and severance agreements. 

Caroline Davis is an associate at Zalkind Duncan & Bernstein LLP. Her state and federal litigation practice focuses on protecting the rights of employees facing discrimination, retaliation, and other workplace violations, along with academic and university proceedings, criminal defense, and a wide variety of civil litigation.

[1] United States v. Bryan, 339 U.S. 323, 331 (1950).

[2] Id. at 332.

[3] Jaffee, 518 U.S. at 10.

[4] Id.

[5] Massachusetts Health Reform Survey, https://www.bluecrossmafoundation.org/sites/g/files/csphws2101/files/2020-09/2018_MHRS%20Chartpack%20MH%20SUD%20Care%20Measures_final.pdf (Dec. 2021); Covid Community Impact Survey, https://www.mass.gov/doc/ccis-webinar-mental-health/download (June 8, 2021).

[6] Lora-Pimentel v. Girard, No. 1884CV01073, 2020 WL 4347240, at *2 (Mass. Super. June 23, 2020) (Gordon, J.); Donovan, 2000 WL 1257463 at *4.

[7] See, e.g., Doe v. Roman Catholic Bishop of Worcester, No. 20042511C, 2006 WL 620701, at *2 (Mass. Super. Feb. 2, 2006) (Locke, J.); Donovan, 2000 WL 1257463 at *7.

[9] See supra notes 5-8.

[10] Silvestri, 2016 WL 778358 at *4.

[11] Jaffee, 518 U.S. at 15 (internal quotation omitted).

[12] Id. at 11, 15.

[13] Id.


Preserving Evidence To Convict the Guilty and Protect the Innocent: Massachusetts’ Post-Conviction Access to Forensic and Scientific Analysis Act

By David M. Siegel and Gregory I. Massing

Legal Analysis

Kenneth Waters spent 18 years in Massachusetts state prison for a murder he did not commit.  His sister, Betty Anne Waters, put herself through college and law school for the sole purpose of exonerating her brother, a story popularized in the 2010 feature film “Conviction.”  The evidence necessary to show Waters’ innocence – Type O blood collected from the crime scene – was not located until 16 years after his conviction.[i]

The Post Conviction Access to Forensic and Scientific Analysis Act (hereinafter, “the Act”) went into effect on May 17, 2012.    The Act inserted a new chapter 278A into the Massachusetts General Laws, providing a comprehensive framework for criminal defendants who have been found guilty to gain access to evidence and forensic testing to support a claim of factual innocence.  In our article in the Summer 2012 edition of the BBJ, we outlined the new procedure for defendants to seek this access and for judges to evaluate these requests.  But what if the evidence needed to support the claim of innocence has been lost, misplaced, discarded, or destroyed?

The Act, for the first time in Massachusetts, mandates state-wide retention and preservation of evidence in criminal cases.  To carry out this mandate, the Act gave the Director of the State Police Crime Lab the authority to promulgate regulations for evidence retention.  This article outlines these provisions and explores the contours of possible regulation in this area.

I. New Statutory Framework for Evidence Preservation

As Kenneth Waters’s story demonstrates, one of the greatest roadblocks for defendants seeking to prove that they were wrongfully convicted is the difficulty in locating and obtaining access to the biological or physical materials necessary to demonstrate their innocence.  This phenomenon is not limited to Massachusetts.  For example, the CardozoLawSchool’s Innocence Project, the first in the nation, closed 233 cases without resolution between 2004 and 2008.  Of these, 22% were closed because evidence had been lost or destroyed.[ii]  Depending on the case, the materials might be evidence (held by the court) or items collected during an investigation but not used, left in police department evidence lockers or discarded once the case was closed.

The Commonwealth has a constitutional obligation to produce exculpatory evidence in criminal cases so that a defendant may inspect and test it.[iii]  However, police departments have only limited, specific statutory duties related to particular types of evidence collection.  See, e.g., G.L. c. 41, § 97B (requiring municipal police to preserve rape kits).  Court clerks have only a general duty to maintain papers filed with them.  G.L. c. 221, § 14.   Prior to passage of the Act, no single legal authority obligated state actors to preserve materials collected during a criminal investigation.

Massachusetts is not unique in this regard.  A 2007 study conducted for the U.S. Department of Justice of 2,250 law enforcement agencies across the country, including police departments, prosecutors’ offices, and government crime labs, found that fewer than half (46%) had a policy for preserving biological material secured in the investigation of an offense in which a defendant was convicted.  About half of these policies (51.4%) were established by state law, and most of the rest (42.7%) were set by the agency.[iv]    Of the 49 states that have passed legislation providing for post-conviction DNA testing, only slightly more than half included an evidence preservation requirement.[v]

Massachusetts is now one of those states.  The Act creates the first statewide statutory duty for governmental entities in possession of materials collected during an investigation that resulted in a criminal conviction to systematically retain those materials for the duration of a convicted defendant’s sentence, including any term of parole or probation.   [vi]  Specifically, the Act mandates, “Any governmental entity that is in possession of evidence or biological material that is collected for its potential evidentiary value during the investigation of a crime, the prosecution of which results in a conviction, shall retain such evidence or biological material . . . without regard to whether the evidence or biological material was introduced at trial.”  Id.

Two aspects of this brief but important provision bear emphasis.  First, the term “evidence” is used in its broadest meaning, not limited to exhibits that are formally admitted into evidence.  The statute expressly states that evidence or biological material collected for its “potential evidentiary value” in an investigation must be retained, regardless of whether or not it is introduced at trial.

Second, the term “governmental entity,” used to describe those agencies subject to the retention requirement, is defined elsewhere in the Act as “an official body of the commonwealth, or of a county, city or town within the commonwealth.”  Id. § 1.  Accordingly, state and municipal police departments that collect evidence for investigative purposes, as well as governmental forensic service units like the State Police and Boston Police crime laboratories, are now required by law to retain these materials.  By its plain terms, the Act also applies to courts, which clearly satisfy the definitional standard of “official bodies of the commonwealth.”  Thus, courts in possession of evidence or biological materials introduced at trial – or even merely marked for identification or used as a chalk – must retain and preserve these materials.

The retention requirement is not absolute.  For example, the Act recognizes that evidence seized for investigative purposes or introduced at trial may belong to third parties and may be subject to motions for the return of property.  Thus, evidence or biological material “need not be preserved if it is to be returned to a third party.”  Id. § 16(a).  Likewise, the legislature was cognizant that some materials seized in the course of an investigation – automobiles, for instance – cannot easily be stored indefinitely.  Accordingly, governmental entities are excused from retaining objects “of such a size, bulk or physical character as to render retention impracticable.”  Id.

The Act is not specific as to the manner in which evidentiary materials in general, or biological materials in particular, must be maintained, except to say that they must be kept “in a manner that is reasonably designed to preserve the evidence and biological material and to prevent its destruction or deterioration.”  Id.   Rather, the Act delegates to the director of the State Police Crime Lab, in consultation with the Forensic Sciences Advisory Board, the authority to promulgate regulations governing the materials’ retention and preservation.  Id. § 16(b).

That Board, established under G.L. c. 6, § 184A, is charged with advising the Secretary of Public Safety and Security “on all aspects of the administration and delivery of criminal forensic sciences in the commonwealth.”  Id.  The Board is comprised of the undersecretary of public safety for forensic sciences, who serves as chair, the attorney general, the colonel of the state police, the president of the Massachusetts Chiefs of Police Association, the president of the Massachusetts Urban Chiefs Association, the president of the Massachusetts District Attorney’s Association, a district attorney designated by the Massachusetts District Attorney’s Association, and the commissioner of the department of public health or their designees.  Id.  The composition of the Board is heavily weighted toward prosecutorial and police interests, and does not include any scientists.

In conjunction with its recommendation that the legislature pass the Act, the 2009 report of the Boston Bar Association Task Force to Prevent Wrongful Convictions, Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, recommended that the Board should be expanded by adding three laboratory scientists and three members of the bar, representing a broader range of criminal justice and scientific stakeholders.  Id. at 48, 50-53 & App. B. Senator Cynthia Creem filed a bill to implement this recommendation, Mass. Senate Bill No. 1204, in January 2011, but the bill has not moved beyond being referred to committee.  While the Board’s meetings are open to the public, and recent Board chairs have invited a broad range of stakeholders to attend, regular participation in the Board’s work by scientific professionals requires formal expansion of its membership.  The proposed legislation would place the Board’s consultative role with respect to the retention and preservation regulations on a firmer scientific basis.

Lastly, the Act provides criminal and civil immunity for governmental officials and employees acting in good faith to meet its requirements, including, but not limited to, the evidence retention provisions.  G.L. c. 278A, § 17(a), (c).  Officials who engage in “willful or wanton misconduct or gross negligence” that results in the destruction of evidence, however, may be subject to proceedings for contempt.  Id. § 17(b).

II. Regulations To Implement Evidence Preservation

As mentioned above, the Act delegates the responsibility for regulating the retention and preservation of evidence and biological material, “in a manner that is reasonably designed to preserve the evidence and biological material and to prevent its destruction or deterioration,” to the director of the State Police Crime Lab.   Id. § 16.   The Act gives the director wide berth regarding the content of the regulations, requiring only that the director include “standards for maintaining the integrity of the materials over time” and chain-of-custody procedures:  “the designation of officials at each governmental entity with custodial responsibility and requirements for contemporaneously recorded documentation of individuals having and obtaining custody of any evidence or biological material.”  Id.

Carrying out this broad mandate presents some obvious challenges.  While spelling out best practices for retention and preservation of evidence – for example, the proper packaging of materials, and temperature and humidity levels at which they should optimally be kept – is a relatively straightforward proposition, putting these practices into effect is another matter.  Nothing in the Act ensures that police departments, especially in smaller municipalities, will possess the storage space – and, if necessary, refrigerator units – to adhere to best practices.  Likewise, regulations can easily require police departments to assign evidence custodians and to maintain careful logs of what materials are being stored, the case or cases they are associated with, when materials are removed, and by whom.  Less obvious is whether police departments have the available personnel, records managements systems, and information officers to update and maintain these systems.  Academic research recommendations aptly note, “[I]t is imperative that once state statutes are established, there must be adequate agency funding to allow crime laboratories and law enforcement to quickly and efficiently address their policies and procedures to support the statutes.”[vii]

Concerns regarding storage space and funding are especially acute in light of the Act’s requirement that government entities preserve not only “biological material,” but also any “evidence” collected in an investigation.  The original versions of the bills filed in the Senate and the House in January 2011, consistent with the BBA Task Force’s recommendation, required only the retention of “biological evidence.”  See Mass. Senate Bill No. 753, proposed G.L. c. 278A, § 16(a) (filed Jan. 21, 2011); Mass. House Bill No. 2165 (filed Jan. 20, 2011); Getting It Right, App. A.   Limiting the retention requirement to “biological evidence” is consistent with the requirements of the federal Innocence Protection Act.  See 18 U.S.C. §3600A.

In the course of enactment, however, the material required to be retained was broadened to include any “evidence or biological material.”[viii]  This change may have been due to the legislature’s belief that evidence other than biological material, such as a murder weapon that was never dusted for fingerprints, or an article of clothing potentially carrying microscopic fluids or fibers not previously susceptible to DNA testing, might yield proof of a defendant’s innocence – a belief that is consistent with research recommendations.[ix]

Mandating the retention of only biological materials would have been less onerous for state and local law enforcement agencies, whereas the need to retain all evidence might create financial burdens for police departments in terms of logistics and procuring suitable storage space.  The regulations might help alleviate these problems by providing for the sharing of retention responsibilities among forensic laboratories and police departments – so long as responsibility is clearly delineated and strong tracking and security systems are in place.  In addition, based on the Act’s exemption for the retention of large items that are impracticable to store, the regulations might include recommendations and methods for storing samples or cuttings of materials that will preserve their potential evidentiary value.[x]

Adhering to best practices for evidence collection, as well as retention, is a critical component of effective evidence preservation, as the evidence retained is only as good as that collected.  The statewide regulations must ensure that all evidence and biological material subject to the Act – that is, “collected for its potential evidentiary value” – is carefully identified and promptly logged in, preferably in a centralized record-keeping system. The director of the State Police Crime Lab should examine ways to leverage and strengthen existing Laboratory Information Management Systems (LIMS) and police records management systems to facilitate and expedite this process.  Law enforcement training on evidence collection should, at a minimum, include the new requirements for evidence retention created by the Act and any regulations.   (For additional recommendations regarding law enforcement training and practices for evidence collection, see Getting It Right at 53-54.)

III. Conclusion

By creating an obligation for the Commonwealth to retain and preserve material from criminal investigations, Massachusetts’s Post-Conviction Access to Forensic and Scientific Analysis Act provides a tool to help solve future cases, as well as to rectify – and shorten the duration of – miscarriages of justice.  This tool is likely to become more powerful as techniques of forensic and scientific analysis improve.  Through the intelligent and strategic use of the regulatory authority granted under the Act, the director of the State Police Crime Lab, in conjunction with the Forensic Sciences Advisory Board, can ensure that the law enforcement agencies of the Commonwealth responsibly discharge this duty.

David M. Siegel is a Professor of Law at New England Law | Boston specializing in Criminal Law, Criminal Procedure and Evidence.

Gregory I. Massing is Executive Director of the RappaportCenter for Law and Public Service at SuffolkUniversityLawSchool. He was General Counsel of the Massachusetts Executive Office of Public Safety from 2007 through 2011.

(The authors were members of the Boston Bar Association’s 2008-2009 Task Force to Prevent Wrongful Convictions. The opinions expressed here are those of the authors and do not represent those of the Task Force, its members or the BBA.) 

[i] This account of the Waters case is based on the Innocence Project’s profile, www.innocenceproject.org/Content/Kenny_Waters.php.

[ii] Kevin J. Strom, Matthew J. Hickman & Jeri D. Ropero-Miller, Evidence Retention Policies in U.S. Law Enforcement Agencies: Implications for Unsolved Cases and Postconviction DNA Testing, 27 J. Contemp. Crim. Justice 133, 134 (2011) (hereinafter “Evidence Retention Policies”).

[iii] See Commonwealth v. Neal, 392 Mass. 1, 11-12 (1984) (state has duty to produce exculpatory evidence for defendant to inspect and test); Commonwealth v. Woodward, 427 Mass. 659, 679 (1998) (duty extends to those “who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office”).

[iv] See Kevin J. Strom, Jeri Ropero-Miller, Shelton Jones, Nathan Sikes, Mark Pope & Nicole Horstmann, The 2007 Survey of Law Enforcement Forensic Evidence Processing 3-9 to 3-10 (Oct. 2009).

[v] Evidence Retention Policies at 142.

[vi] The Act thus ensures that the Commonwealth complies with federal requirements for incentive grants for post-conviction DNA testing, training of criminal justice personnel, and elimination of testing backlogs.  Section 413 of the federal Innocence Protection Act of 2004, P.L. No. 108-405 requires that eligible grant receiving entities (including law enforcement agencies) demonstrate that, for all jurisdictions within their state, retention and preservation of biological materials is done “in a manner comparable to” federal preservation provisions, inserted by section 411 and codified at 18 U.S.C. §3600A.

[vii]  Evidence Retention Policies at 144.

[viii] Compare Senate Bill No. 753, the bill as originally filed, with Senate Bill No. 1987, the substitute bill reported out of the Senate Ways and Means Committee.  See Senate Journal July 27, 2011.

[ix] Evidence Retention Policies at 142 (noting potential value of “all forensic evidence including latent prints, trace evidence, and firearms and toolmarks, not just DNA,” for unsolved and postconviction cases).

[x] For additional recommendations regarding how to “maximize the potential to use forensic evidence in the future while minimizing the cost of retention,” see Evidence Retention Policies at 144-45.