Boston Criminal Defense Attorney, Kevin J. Mahoney, Explains the Pros and Cons of Opening Search Warrant Affidavits to the Public
A judge may issue a search warrant only upon a showing of probable cause to search a particular place for particular items. Probable cause is established by means of an affidavit – a sworn statement, usually prepared by a police officer, detailing the need for the search. Probable cause is an objective standard; that is, the affidavit must present sufficient information to convince a reasonable person that a certain place or item contains evidence of a crime.
In some jurisdictions, at the request of the government, the court will seal the probable cause affidavit, keeping it from public view and from the target of the search, at least until an indictment is issued. The Commonwealth of Massachusetts takes a different approach.
Earlier this year, in the case of Commonwealth v. George Prescott Publishing Co., LLC, the Massachusetts Supreme Judicial Court ruled that probable cause affidavits supporting police warrants should be open and accessible to the public and the target of the search. The Court observed that there is an established presumption in favor of public access to search warrants and supporting materials, and concluded that a judge may limit access to these documents only for good cause and only in limited and specific circumstances.
Public access to the probable cause affidavit can be a double-edged sword for a defendant. On the one hand, the affidavit may provide the defendant with valuable information and previously unknown details about the prosecution’s case. On the other hand, the affidavit may include unsubstantiated “facts” and rumors that the defendant may not want to be revealed.
In Prescott Publishing, for example, prominent real estate developer, William O’Connell, was accused of having sexual relations with a minor. A trial court judge sealed the affidavit supporting a search warrant. The Quincy Patriot Ledger challenged the order, arguing that the affidavit should be open to the public. The judge unsealed the affidavit, but ordered that it be redacted to protect the identity of the alleged victim. O’Connell appealed, arguing that release of the affidavit would prejudice his right to a fair trial. He also argued that state law makes reports to police of rapes or sexual assaults private. The Supreme Judicial Court found otherwise, holding that there were sufficient procedures in place for guaranteeing O’Connell a fair trial, and that the minor’s privacy was protected by deleting her name and other identifying information from the affidavit.
Contact Boston, MA Criminal Defense Attorney, Kevin J. Mahoney
If you have been charged with a crime, having an experienced Massachusetts criminal defense attorney on your side can make all the difference in the outcome of your case. If you would like to meet with me for a free initial consultation, call 617-492-0055 to schedule an appointment.
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