Judges Opinions, — August 27, 2015 11:01 — 0 Comments

Commonwealth vs. Jody Lynn Worm No. CP-38-CR-1368-2014

Criminal Law-Pretrial Discovery-Motion to Compel-Transcription of Recorded Interviews and Intercepted Telephone Calls-Duty of Disclosure by the Commonwealth-Digitalized Information-Exculpatory Evidence-Inculpatory Statements-Noncealment-Burden to the Commonwealth of Disclosure

1. Defendant, who was charged with numerous offenses resulting from her alleged involvement in a criminal organization that distributed synthetic drugs and bath salts within Lebanon County, filed a motion to compel the Commonwealth to produce transcripts of recorded telephone calls at the Lebanon County Correctional Facility and recorded statements of witnesses and co-defendants.

2. The prosecution is required to disclose any information that is favorable to the accused. The overall goal of the criminal discovery rules is to prevent trial by ambush that would be fundamentally unfair to a criminal defendant, whose liberty is at stake.

3. The Commonwealth is not required to undertake the role of a defendant’s counsel and need not affirmatively seek out evidence that may benefit a defendant when that evidence is unknown to the Commonwealth and outside of its possession. The Commonwealth is not required to disclose to the defense every fruitless lead followed by investigators of a crime.

4. Pa.R.Crim.P. Rule 573(B)(1) governing pretrial discovery requires mandatory disclosure by the Commonwealth of any evidence favorable to the accused that is within the possession or control of the attorney for the Commonwealth, any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made, the circumstances and results of any identification of the defendant by voice, photograph or in person identification and the transcripts and recordings of any electronic surveillance and the authority by which the same were obtained. Rule 573(B)(2)(a) also requires discovery of the following in the discretion of the Court: the names and addresses of eyewitnesses; all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial; all written and recorded statements and substantially verbatim oral statements made by co-defendants, co-conspirators or accomplices, whether or not such individuals have been charged; and any other evidence specifically identified by the defendant where it would be in the interests of justice.

5. In determining whether the Commonwealth possesses a duty to disclose transcripts of telephone calls and recorded interviews, the Court considered and weighed various practical and public policy considerations including the lack of prosecutorial resources, the fact that fair disclosure requires nonconcealment of a small piece of information in a large body of digitalized data, the benefits of the use of transcripts at trial and the relatively small burden upon law enforcement to create a narrative report outlining key inculpatory evidence and all exculpatory information while conducting its examination and analysis of evidence before filing a criminal complaint. The Court expressed its intent to strike a reasonable balance between preserving a defendant’s right to meaningful discovery and not creating an unreasonable burden for the Commonwealth.

6. The Court held that while the Commonwealth need not produce transcripts of every recorded event or interview in its possession, the Commonwealth must turn over a copy of a digitalized recording if the recorded events and/or witnesses interviewed are exculpatory or intended to be used by the Commonwealth at trial.

7. Further, the Court held that if the Commonwealth creates a transcript of a relevant event or interview, the Commonwealth must turn over a copy of the physical transcript to the defendant. The Court held that if no transcript is prepared of an interview or event, a narrative report must be prepared to summarize the contents of the raw recorded material that the Commonwealth intends to use at trial, including important information that the Commonwealth knows in advance will be used as part of its case-in-chief. Finally, the Court indicated that regardless of whether a transcript is prepared, the Commonwealth specifically must identify exculpatory information that may be found among voluminous raw digitalized data.

8. While the Court denied the Defendant’s Motion to Compel the Commonwealth to create transcripts of tape recorded interviews and telephone conversations, the Commonwealth was directed to identify via written report all information that reasonably may be characterized as exculpatory that is contained in raw digitalized data and to produce a narrative report outlining the substance of all inculpatory statements contained in the raw digitalized data.

L.C.C.C.P. No. CP-38-CR-0001368-2014, Authored by Bradford H. Charles, for the Court En Banc, June 12, 2015.

Nichole Eisenhart, Esquire, for the Commonwealth

R. Scot Feeman, Esquire, For Jody Lynn Worm

IN THE COURT OF COMMON PLEAS

LEBANON COUNTY, PENNSYLVANIA

CRIMINAL DIVISION NO. CP-38-CR-1368-2014

COMMONWEALTH OF PENNSYLVANIA

v.

JODY LYNN WORM

ORDER OF COURT

AND NOW, this 12th day of June, 2015, upon consideration of the Defendant’s Motion for Transcripts and the Commonwealth’s Motion for Reconsideration of our March 25, 2015 Court Order, the Order of this Court is as follows:

1. The Defendant’s Motion seeking to compel the Commonwealth to create transcripts of tape-recorded interviews and intercepted telephone conversations is DENIED.

2. Consistent with its duty of fair disclosure, the Commonwealth will be required to identify via a written report all information that can reasonably be characterized as exculpatory that is contained in the raw digitalized data.

3. Consistent with its duty of fair disclosure, the Commonwealth must produce a narrative report outlining the substance of all inculpatory statements contained in the raw digitalized data that the Commonwealth intends to utilize at trial.

BY THE COURT:

JOHN C. TYLWALK, P.J.

BRADFORD H. CHARLES, J.

CHARLES T. JONES, JR., J.

ROBERT J. EBY, S.J.

APPEARANCES:

Nichole Eisenhart, Esquire, for Commonwealth of Pennsylvania

DISTRICT ATTORNEY’S OFFICE

R. Scot Feeman, Esquire, for Jody Lynn Worm

FEEMAN LAW OFFICES

OPINION BY TYLWALK, P.J., CHARLES, J., JONES, J., and EBY, S.J., en banc, June 12, 2015

Before us is the question of whether or to what extent the Commonwealth should be required to prepare transcripts of tape recordings it has created during the course of an investigation. The Commonwealth takes the position that all it needs to do is turn over the tapes themselves and this will enable the Defendant’s attorney to have the information needed to prepare a defense. The Defendant claims that she does not have the resources to prepare transcripts of the recordings, and the Commonwealth’s duty of full disclosure in a criminal case should encompass the preparation of transcripts.

Much to our surprise, very few cases – in Pennsylvania or across the country – have addressed this issue. Moreover, we perceive valid legal, practical and public policy arguments that favor the positions proffered by both sides. Ultimately, we believe that the appropriate course of action is to enter an Order that essentially creates a “middle ground” between the arguments proffered by the Commonwealth and the defense.

I. FACTS

Jody Lynn Worm (hereafter “DEFENDANT”) has been charged with numerous crimes resulting from her alleged involvement in a criminal organization that distributed synthetic drugs and “bath salts” within Lebanon County. According to the lengthy Affidavit of Probable Cause accompanying DEFENDANT’s charges, the “kingpin” of this corrupt organization was an individual by the name of Carl Clawser, II. DEFENDANT was alleged to be one of Mr. Clawser’s “lieutenants.”

During the course of the investigation, police obtained a large number of recorded statements from witnesses and co-defendants about the corrupt organization. In addition, police intercepted and listened to many hours of telephone conversations made and received by DEFENDANT while she was incarcerated at the Lebanon County Correctional Facility. Tape recordings of these conversations were also created.

When the above-referenced matter proceeded before the Court of Common Pleas of Lebanon County, DEFENDANT sought discovery. The Commonwealth produced a large number of tapes for DEFENDANT. However, no written transcripts accompanied the tapes. As a result, DEFENDANT filed a motion seeking to compel the Commonwealth to produce transcripts from the recorded telephone calls and recorded interviews. We directed that oral argument occur with respect to DEFENDANT’s motion.

On March 25, 2015, argument was conducted in open court with respect to DEFENDANT’s request for transcripts. After listening to the positions of both sides, we acknowledged that we had never encountered the issue and did not have the benefit of legal research or analysis of the parties’ dispute. We advised the parties of our “initial inclination.” That “inclination” was:

(1) The Commonwealth would not be required to transcribe all of the intercepted telephone conversations involving DEFENDANT. However, the Commonwealth would have to at least notify DEFENDANT’s counsel of the substance of the intercepted conversations that it intends to use in its case-in-chief.

(2) We would grant DEFENDANT’s motion seeking transcription of tape-recorded interviews of any witness who would be called to testify at trial.

Acknowledging that our “initial inclination” was unsupported by extensive analysis or research, we advised the parties that if they wanted us to conduct a formal analysis followed by a formal written opinion that would serve as precedent in Lebanon County going forward, we would undertake such a process. The Assistant District Attorney involved in the case indicated that she would have to consult with the District Attorney before making such a decision. We therefore dictated a Court Order based upon our “initial inclination,” but we instructed the official court reporter to “hold” the Court Order for a period of one week in order to permit the Assistant District Attorney to consult with her boss. No one from the District Attorney’s office communicated with this Court within the one-week time frame we afforded. As a result, we signed the Order that we had dictated in open court.

On April 24, 2015, the Commonwealth filed a Motion to reconsider our Court Order. We recognized the unique importance of the issue presented. We also recognized that decisions on these types of topics should not generally be based upon an “initial inclination.” Therefore, we granted the Commonwealth’s Motion for Reconsideration and we will now formally analyze the question of whether or to what extent the Commonwealth should be required to prepare transcripts of intercepted phone calls and recorded interviews.

II. DISCUSSION

A. Legal Analysis

To the extent that a criminal trial is a test, it must be an “open book” one. Ever since the United States Supreme Court’s landmark decision in Brady v. Maryland, 373, U.S. 83, 83 S.Ct. 1194 (1963), prosecutors across the country have been required to disclose any information favorable to an accused. Quoting an inscription on the walls of the United States Department of Justice, the Supreme Court noted in Brady: “The United States wins its point whenever justice is done its citizens in the courts.” Id. at 1197.

In Pennsylvania, the “open book” nature of criminal proceedings is embodied in the Pennsylvania Rules of Criminal Procedure. Specifically, the rule requiring pretrial discovery requires “mandatory” disclosure by the Commonwealth of the following information, inter alia:

(a) Any evidence favorable to the accused that…is within the possession or control of the attorney for the Commonwealth;

(b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made that is in the possession or control of the attorney for the Commonwealth;

(d) the circumstances and results of any identification of the defendant by voice, photograph, or in-person identification;

(g) the transcripts and recordings of any electronic surveillance, and the authority by which the said transcripts and recordings were obtained.

Pa.R.Crim.P. 573(B)(1). In addition to the foregoing mandatory disclosures, the following discovery is required at the discretion of the Court:

(i) the names and addresses of eyewitnesses;

(ii) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial;

(iii) all written and recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co-conspirators or accomplices, whether such individuals have been charged or not; and

(iv) any other evidence specifically identified by the defendant where “it would be in the interest of justice.”

Pa.R.Crim.P. 573(B)(2)(a).

Fortunately, the tradition in Lebanon County spanning decades has resulted in voluntary disclosure by the Commonwealth of “discretionary” items without the need for a defendant’s attorney to seek court intervention. We accept, based upon this traditionally-ingrained precept of Lebanon County jurisprudence, that unless a specific dispute arises, the Commonwealth has and will continue to comply with its obligation to provide both mandatory and discretionary disclosures under Pa.R.Crim.P. 573.

The overall goal of the criminal discovery rules is to prevent “trial by ambush” that would be “fundamentally unfair” to a criminal defendant whose liberty is at stake. See Commonwealth v. Hanford, 937 A.2d 1094 (Pa.Super. 2007). Moreover, the discovery rules and the due process foundation upon which they are built specifically preclude the Commonwealth from “concealing” the existence of exculpatory information that may not be included in a specific written document. See Commonwealth v. Hallowell, 383 A.2d 909 (Pa. 1978); Commonwealth v. Floyd, 393 A.2d 963 (Pa.Super. 1978).

To be sure, no District Attorney’s office is required to undertake the role of the Defendant’s counsel, and the Commonwealth need not affirmatively seek out evidence that may benefit a defendant when that evidence is unknown to it and outside its possession. See Commonwealth v. Haskins, 60 A.3d 538 (Pa.Super. 2012). Moreover, the rules of criminal disclosure do not require a prosecutor to deliver his/her entire file to defense counsel. Id. As stated by our Commonwealth’s highest court: “The prosecution is not required to disclose to the defense ‘every fruitless lead followed by investigators of a crime’.” Commonwealth v. Lambert, 884 A.2d 848, 857 (Pa. 2005), quoting Commonwealth v. Crews 516 U.S. 1 (1995).

We have conducted extensive research in an effort to discern whether decisional precedent exists that would require the Commonwealth to produce transcripts of interviews and events. We did locate a Pennsylvania Supreme Court case holding that disclosure of a transcript in lieu of the actual tape recording itself is sufficient for purposes of Pennsylvania’s discovery rules. See Commonwealth v. Colson, 490 A.2d 811 (Pa. 1985), abrogated on other grounds by Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001)). We found nothing in Pennsylvania to address the corollary of Colson, i.e., whether a tape can suffice in lieu of a transcript.

We did not limit our research to Pennsylvania. We were able to locate several cases from other jurisdictions that are pertinent. While all of these cases involve a specific analysis of rules or statues pertinent to their own jurisdiction, the reasoning employed by each of these courts nevertheless bears mentioning.

In State v. Russo, 317 A.2d 369 (App.Div. 1974), a Trial Judge ordered a prosecutor to transcribe 102 hours of intercepted conversations. The prosecution argued that New Jersey’s discovery rule required it to make its recordings available for inspection, but did not require the preparation and furnishing of transcripts. The New Jersey appellate court agreed with the prosecution, noting that “large parts” of the recorded conversations were “irrelevant, immaterial and non-incriminatory.” Id. at 370. Under these circumstances, affording access to the tapes themselves sufficed.

In State v. Daniel, 2010 WI App 1, 2009), the prosecution had provided a copy of a recording of drug transactions to the Defendant during discovery. However, the Defendant was not provided with a transcript of the recording. When the prosecution sought to play the recordings at trial, the Defendant objected because no transcript has been provided. The Wisconsin Appellate Court rejected the Defendant’s appeal. The Court noted that Wisconsin’s criminal discovery statute required “written summaries of any oral statements of the Defendant” which the prosecution intended to use in its case-in-chief. Id. The Appellate Court refused to equate “transcripts” with “written summaries of oral statements.” Id. at 2. Accordingly, the Court did not require the preparation or disclosure of a transcript.

Finally, in Dockery v. State, 504 N.E.2d 291 (Ind.Ct.App. 1987), the defense argued that the prosecution should have prepared and provided transcripts of videotape interviews of child abuse victims. The prosecution responded that the actual tapes themselves were provided to the defense. The Indiana Court of Appeals held that this was sufficient.

Although the rules and statutes of Wisconsin, Indiana and New Jersey are different from those in Pennsylvania, several themes can nevertheless be gleaned from our review of Russo, Daniel and Dockery. First, the prosecution must afford a defendant with access to inculpatory tape recordings that were created during the course of an investigation. Second, the prosecution is not required to affirmatively create a transcript of all tape recorded events or interviews. Third, the Courts in Daniel, Dockery and Russo were all primarily concerned with the question of whether relevant information was concealed from the defense.

B. Practical and Public Policy Considerations

In addition to the legal precepts outlined above, we have contemplated practical and public policy considerations that will impact our decision. In no particular order of importance, those practical and public policy factors are as follows:

1. Lack of Prosecutorial Resources

Today, more than any other time in human history, events and interviews are being tape recorded. Since Ferguson and Baltimore, police departments have been purchasing and deploying vehicle video systems and so-called “body cams.” In addition, private citizens who happen to be in the vicinity of interesting events tend to take videos on their omnipresent cellular telephones. On top of that, specialized investigative teams such as those who work with cases involving child victims are being trained to tape and video-record what many times are lengthy interviews. All of the above creates a digital library of information that police dump in the laps of the District Attorney’s office.

It would require hours of time by more staff than presently exists to prepare transcripts of everything digitally created in all pending investigations. Stated simply, the resources to create such transcripts do not exist, and courts should not blithely impose “unfunded mandates” that would be unreasonable and costly to enforce.

2. Fair Disclosure Requires Non-Concealment

In the 1991 movie “Class Action” starring Gene Hackman and Mary Elizabeth Mastrantonio, the Plaintiff in a civil lawsuit requested documents from corporate Defendants. The Defendants quickly realized that they were in possession of one document that could be viewed as a so-called “smoking gun.” They recognized the ethical and legal duty they possessed to turn over this document to the Plaintiff, but they realized that the document would likely be fatal to their case.

As depicted in the movie, the lawyers for the defense decided to employ a “hide in plain sight” strategy. They placed the one smoking gun document inside a box. They then identified all other papers generated by the Defendant corporation over a period of years. A tractor trailer was then hired to deliver thousands of boxes to the Plaintiff’s attorney. The goal of the defense was to ensure that the Plaintiff’s counsel would be so overwhelmed that he would not be able to locate the one “smoking gun” among the hundreds of thousands of irrelevant documents in which it was hidden.

We do not for a second believe that the Lebanon County District Attorney’s Office would ever attempt to employ the type of strategy depicted in “Class Action.” Nevertheless, if we were to authorize a practice that permitted the disclosure of megabytes or even gigabytes of digitalized information without any accompanying transcripts or narrative summaries, the result could easily be that inculpatory or even exculpatory “needles” could become lost in the “haystack” of digitalized information.

As noted in the preceding section of this Opinion, Pennsylvania’s appellate courts have decried the practice of “concealing” information from a defendant. Because we believe that information sharing such as that depicted in the movie “Class Action” can become the functional equivalent of concealment, we are unwilling to simply say in all situations that the Commonwealth’s duty of disclosure can be met simply by downloading to defense counsel all of the raw digitalized data it possesses.

3. Trial Considerations

The existence of transcripts makes a trial easier and more efficient. When a witness intentionally or mistakenly provides information inconsistent with a prior statement, that witness can be impeached with the prior inconsistent statement. When a transcript exists that is agreed to be authentic, the impeachment process is relatively simple and quick – the witness is confronted with the transcript and given the opportunity to explain why the current statement is different. Without a transcript, impeachment with inconsistent statements becomes infinitely more cumbersome.

Suppose that a witness provides testimony inconsistent with a prior statement that is only digitally memorialized. The lawyer seeking impeachment will then have to scroll or search through the recording in order to locate the specific inconsistent statement that is being sought. We can envision situations where this will require more than just a few minutes. Also suppose that the inconsistent statement is contained in a passage that also includes otherwise irrelevant, inadmissible or prejudicial information. When a transcript exists, that information can simply be skipped when reading the inconsistency to the jury. When using a tape recording, the recording must either be edited, or the parties will have to privately listen to the passage in order to agree what is being said. This will require time that is not always available at a trial.

In addition to the above, digitalized recordings are dependent upon the technology that facilitates their use. While technology can and most often does facilitate the presentation of evidence, technological systems have an annoying and almost inevitable tendency to break down at the worst possible moments. When paper exists, everyone in the courtroom can smile with a “been there done that” type of attitude . . . and the trial moves on. On the other hand, if the only proof that a defense counsel can use for impeachment is contained in a computer, and if the computer does not work, the trial screeches to a halt until some tech wizard can correct the problem.

Another problem inherent with tape recordings is their quality. People speak in different tones and with different volumes. Sometimes, microphones can pick up the speech easily. Other times . . . not so much. When a transcript has been prepared that is agreed by both sides to be authentic, we permit jurors to use the transcript to “read along” with the tape. This enhances the understandability of tape-recorded information. When a transcript does not exist, the jurors are limited to their auditory senses to discern what was said and by whom.

From the perspective of trial management, we far prefer to have written transcripts that can either supplant or supplement the digitally-recorded information. It is in the best interest of everyone – including the Commonwealth – that trials be conducted in a manner that is as efficient and effective as possible. Transcripts enhance efficiency and understandability of evidence, and we hope that these considerations will incentivize the voluntary preparation of transcripts as much as possible.

4. Investigative Analysis

As a practical reality, someone representing the prosecution at some point would have examined and analyzed all of the digital information that comprises the investigation. When investigating a crime, detectives pour through information in an effort to solve the mystery of what occurred and by whom. Indeed, the ethical duties of police and prosecutors require that evidence be examined in order to determine whether probable cause exists before criminal charges are lodged.

Given the above, it would not create too much of a burden to require that investigators note and create a narrative report outlining key inculpatory evidence and all exculpatory information. In fact, in most cases we encounter in court, the investigators prepare narrative reports that set forth this very information. These reports can serve as a glossary of sorts that would enable defendants and defense attorneys to cull through the voluminous digital record to hone in on what the Commonwealth truly intends to present.

III. CONCLUSION

Sifting through everything outlined above, we reach the following conclusions with respect to the issue now before us:

(1) The Commonwealth need not produce transcripts of every recorded event or interview it possesses. However, if the recorded events and/or witnesses interviewed are exculpatory or intended to be used by the Commonwealth at trial, the Commonwealth will be required to turn over a copy of the digitalized recording.

(2) We prefer the creation of transcripts, and we can perceive that situations will occur when the Commonwealth chooses to voluntarily create a transcript of a recorded event or recorded interview. If the Commonwealth does create a transcript of a relevant event or interview, a copy of the physical transcript must be turned over to the defense and both counsel should work to develop a stipulation of authenticity.

(3) If no transcript is prepared of an interview or event, some sort of narrative report must be prepared to summarize the contents of the raw recorded material that the Commonwealth intends to use at trial. The entirety of the raw data need not be summarized. However, important information that the Commonwealth knows in advance will be used as part of its case-in-chief will need to be summarized in some sort of narrative report.

(4) Regardless of whether a transcript is prepared or not, the Commonwealth must specifically identify exculpatory information that may be found among voluminous raw digitalized data.

We believe that the above strikes a reasonable balance that preserves a defendant’s right to meaningful discovery without unreasonable burdening the Commonwealth.

Our ruling today will not require that the Commonwealth routinely and affirmatively create transcripts of recorded data. On the other hand, we stop far short of declaring that the Commonwealth can comply with its discovery obligation by simply handing a disc containing raw data to the Defendant’s attorney and then stating: “This is what we have. You figure out what we are going to do with it.” As a practical matter, investigators and prosecutors will in every case evaluate recorded data in order to identify inculpatory evidence and prepare to rebut information that is exculpatory. All we are requiring is that a police officer write a report of some sort to highlight the location and nature of the inculpatory and exculpatory information. As this is what police officers have done for decades, we do not perceive our requirement to create any unreasonable burden.

Lest there be no confusion, we are not requiring that police be required to perform investigative work on behalf of a defendant, nor are we requiring that prosecutors turn over their work product to defense counsel. What we are demanding is that the Commonwealth meaningfully apprise the Defendant of how it intends to prove its case at trial. We reiterate that a defendant possesses the right to meaningful discovery. So long as the Commonwealth acts reasonably to preserve that right, we will not burden the Commonwealth with the requirement to affirmatively create transcripts where none otherwise exist.

We recognize that the precedent we establish today via this written Opinion cannot hope to address all of the exigencies of future cases that are impossible to predict. All we can do is declare as a matter of broad policy that from the prospective of the Defendant whose liberty is at stake, the criminal prosecution process must be “open book.” So long as the Commonwealth acts reasonably under the circumstances and does not overtly or subtly attempt to conceal relevant information among voluminous digitalized data, we will not require that transcripts be created and we will not sanction the Commonwealth for any defense-perceived discovery violation.

(1)After we issued the Order that we entered based upon our “initial inclination,” the District Attorney appeared at a Call of the List proceeding and declared that he did not intend to follow the Court Order that was issued. Senior Judge Robert J. Eby advised the Commonwealth that failure by the Commonwealth to comply with the Court Order could result in a dismissal of charges.

(2) Just as we have recognized that the District Attorney’s Office lacks the resources to complete transcripts of every item of digitalized evidence it possesses, so too must we acknowledge that defense attorneys also lack those resources. In fact, in almost every case, defense attorneys have fewer resources at their disposal than does the prosecution.

(3) For example, if the actual recording needs to be enhanced due to lack of quality, or if the Commonwealth wishes to have a witness sign the recorded statement to verify its authenticity, or if the Commonwealth wants the jury to “follow along” with a tape recording using a transcript, it would be in the Commonwealth’s best interest to prepare an actual physical transcript.

(4) Intercepted prison telephone calls provide a perfect example of this concept. When the Prison intercepts and records telephone conversations involving inmates, the length of the conversations recorded can sometimes extend into many hours. In all likelihood, the majority of the telephone calls will involve innocuous family issues or other irrelevant conversations. However, if in the midst of all of these irrelevant conversations the Defendant blurts out a confession that the Commonwealth intends to use at trial, the confession and its context must be highlighted in some sort of report or there is a significant risk that the Defendant’s counsel will be surprised by its existence.

 

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