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SJC-11929

SJC-11944

COMMONWEALTH vs. ANGELO TEIXEIRA.

COMMONWEALTH vs. CHRISTOPHER A. MEADE.

Suffolk. January 11, 2016. - September 16, 2016.

Present: Gants, C.J., Cordy, Botsford, Duffly, Lenk, & Hines, 

JJ.1

Boston Municipal Court. District Court, Probable cause hearing. 

Practice, Criminal, Probable cause hearing, Discovery. 

Moot Question.

Civil action commenced in the Supreme Judicial Court for 

the county of Suffolk on July 2, 2015.

The case was reported by Lenk, J.

Civil action commenced in the Supreme Judicial Court for 

the county of Suffolk on August 10, 2015.

The case was heard by Spina, J.

Valerie A. DePalma (Jeffrey M. Miller with her) for the 

defendants.

Kathryn Leary, Assistant District Attorney, for the 

Commonwealth.

 

1 Justices Cordy and Duffly participated in the deliberation 

on this case prior to their retirements.
2

John D. Donovan, Jr., Jesse M. Boodoo, Joshua D. Rovenger,

& David M. Coriell, for Massachusetts Association of Criminal 

Defense Lawyers, amicus curiae, submitted a brief.

Benjamin H. Keehn, Committee for Public Counsel Services, 

for Committee for Public Counsel Services, amicus curiae, 

submitted a brief.

LENK, J. These cases stem from two unrelated, nonfatal 

shootings in the Roxbury section of Boston in June, 2015, and 

July, 2015. Angelo Teixeira was arrested for the first 

shooting, and Christopher Meade for the second. Meade and

Teixeira each were charged by complaint in the Boston Municipal 

Court (BMC) with a number of felonies, including some that are 

outside the final jurisdiction of that court. Pursuant to G. L. 

c. 276, § 38, probable cause hearings were scheduled for each 

defendant to determine whether there was sufficient evidence to 

bind them over to the Superior Court for trial. The 

Commonwealth was ordered to provide the defendants with 

discovery in advance of those hearings. Noting that judges of 

the BMC and the District Court Department2 are not explicitly 

authorized, either by statute or by the Massachusetts Rules of 

Criminal Procedure, to order discovery in preparation for 

probable cause hearings (prehearing discovery), the Commonwealth 

 

2 While the discussion concerns judges of the Boston 

Municipal Court (BMC), our analysis and conclusion apply equally 

to judges of the District Court. See Victor V. v. Commonwealth, 

423 Mass. 793, 796 (1996).
3

objected to the discovery orders and filed interlocutory 

appeals.

In considering these cases, we must determine whether 

judges of the BMC may order prehearing discovery in the absence 

of specific authorization from G. L. c. 276, § 38, the Rules of 

Criminal Procedure, or any trial court standing order.3 We 

conclude that, because such judges have inherent authority to 

issue orders essential to their capacity to decide cases, they 

may, in their discretion, order prehearing discovery. We 

conclude also that, here, the judges did not abuse their 

discretion by issuing these discovery orders, which were limited 

in scope and which would have allowed defense counsel reasonably 

to prepare for the scheduled probable cause hearings.4

1. Background. a. Teixeira. On June 20, 2015, Boston 

police officers were dispatched to the scene of a shooting in 

Roxbury. There, they encountered Teixeira, who had been shot in 

 

3 We acknowledge the amicus briefs submitted by the 

Committee for Public Counsel Services in both cases, and the 

Massachusetts Association of Criminal Defense Lawyers in 

Teixeira's case.

4 Because we affirm the discovery orders on the basis of the 

judge's discretionary powers, we do not reach the defendants' 

contention that prehearing discovery is necessary as a matter of 

constitutional due process. Cf. Myers v. Commonwealth, 363 

Mass. 843, 854 (1973) (having disposed of case on statutory 

grounds, court declined to decide whether "due process 

requirements of the United States Constitution mandate that the 

defendant in a probable cause hearing shall have the right to 

cross-examine prosecution witnesses and present testimony in his 

own defence").
4

the leg and soon thereafter was transported to a hospital. The 

officers interviewed three witnesses, including an off-duty 

police officer from another jurisdiction, who said that they 

heard gunshots and that, subsequently, someone matching 

Teixeira's description had fired several shots at "unknown 

persons." Police obtained surveillance footage from a store 

near the scene, which showed two individuals -- one of whom is 

apparently believed to be Teixeira -- "remov[ing] items from the 

store," "flee[ing]" down the street, and "plac[ing] a white 

garbage bag in the rear of [a nearby] yard."5 Police recovered 

two firearms from the garbage bag.

On June 24, 2015, a complaint issued in the BMC, charging 

Teixeira with four crimes within the final jurisdiction of that 

court: carrying a firearm without a license, G. L. c. 269, 

§ 10 (a); carrying a loaded firearm without a license, G. L. 

c. 269, § 10 (n); possession of ammunition without a firearm 

identification (FID) card as a subsequent offense, G. L. c. 269, 

§ 10 (h) (1); and assault and battery by means of a dangerous 

weapon, G. L. c. 265, § 15A (b) (three counts). The complaint 

also charged him with two crimes -- carrying a firearm without a 

license as a second offense, G. L. c. 269, § 10 (a), (d); and 

committing a firearms violation having been convicted of three 

 

5 Police reports do not reflect whether the episode recorded 

by the surveillance camera occurred before or after the 

shooting.
5

violent crimes or three serious drug offenses, G. L. c. 269, 

§ 10G (c) -- for which final jurisdiction lies only in the 

Superior Court.6

Teixeira was arrested and arraigned the same day. At 

arraignment, the judge scheduled a probable cause hearing for 

July 7, 2015. Over the Commonwealth's objection, the judge 

granted Teixeira's motion for discovery in advance of that 

hearing. He ordered that the names and contact information of 

the Commonwealth's three witnesses be turned over by the close 

of business the following day, and that the surveillance footage 

be turned over the following week, four days before the hearing. 

The judge also issued a protective order "direct[ing defense 

counsel] not to provide to [Teixeira] any contact information on 

any witness." The protective order was later expanded to 

prevent Teixeira from learning the names of the civilian 

witnesses.

The following day, June 25, 2015, the Commonwealth filed a 

motion for reconsideration with respect to the discovery orders. 

A hearing on the Commonwealth's motion was scheduled for June 

26, 2105. At that hearing, the Commonwealth's motion was 

 

6 During arraignment on these charges, which took place in 

the BMC on June 24, 2015, Teixeira made threatening gestures and 

statements to Boston police detectives. This resulted in 

additional charges of witness intimidation, G. L. c. 268, § 13B, 

and threatening to commit a crime, G. L. c. 275, § 2, both of 

which are within the BMC's final jurisdiction.
6

denied, and the judge ordered that the witness information be 

turned over by the close of business. The judge did, however, 

allow the Commonwealth's motion to continue the probable cause 

hearing for approximately one month.

Later that day, the Commonwealth filed a notice of appeal 

with respect to the discovery order, a motion to stay the order 

pending appeal, and a request for a written ruling. The judge 

stayed the discovery order until the close of business on June 

30, 2015. The judge also issued a written ruling, explaining 

that he had ordered discovery because

"[a]ffording such minimal discovery as the identities of 

witnesses and an opportunity to view video footage of the 

alleged incident in advance of the probable cause hearing 

is essential to the defendant's ability meaningfully to 

exercise his rights to confrontation and to present 

evidence at that hearing. . . . For example, one of the 

witnesses might describe the alleged shooter differently 

from the way that the defendant is described in the police 

report or from other witness accounts. Without the 

witnesses' identities being disclosed to defense counsel in 

advance of the hearing, such discrepancies, which might 

raise genuine issues with respect to probable cause, could 

not be explored . . . ."

On June 30, 2015, the Commonwealth filed a motion to 

further stay the discovery order. The judge denied the motion, 

and the stay expired, by its own terms, at the close of business 

that day. The Commonwealth did not provide the ordered 

discovery.

The next day, July 1, 2015, Teixeira filed a motion seeking 

sanctions. At a hearing later that day, the judge asked the 
7

Commonwealth to address why "[nineteen] and a half hours after 

that stay expired . . . there's been no compliance." He noted,

"[M]y order is in effect . . . [A]s far as I know, it 

hasn't been stayed, and I'm starting to get a little 

impatient, because I feel like I'm trying to do things 

procedurally in a way that respects the law and procedure. 

And I'm starting to feel like not everybody is adhering to 

the same rules."

The judge did not then issue a ruling on sanctions. Rather, he 

allowed the Commonwealth's request for seven days in which to 

respond to the defendant's motion for sanctions.

On July 2, 2015, the Commonwealth filed an emergency 

petition in the county court, seeking an immediate stay of 

execution of the discovery order, and also seeking to vacate 

that order. The motion for a stay was allowed on July 7, 2015, 

and a single justice thereafter reserved and reported the 

Commonwealth's petition to the full court.

On July 30, 2015, a Suffolk County grand jury returned 

eleven indictments against Teixeira.7 On August 26, 2015, the 

 

7 Teixeira was charged with four counts of attempted assault 

and battery by means of a firearm, G. L. c. 265, § 15F; one 

count of carrying a firearm without a license as a second 

offense, G. L. c. 269, § 10 (a) and (d), and after having been 

convicted of three violent crimes or three serious drug 

offenses, G. L. c. 269, § 10G (c); two counts of possessing 

ammunition without a firearm identification card, G. L. c. 269, 

§ 10 (h), and after having been convicted of three violent 

crimes or three serious drug offenses, G. L. c. 269, § 10G (c); 

one count of carrying a loaded firearm, G. L. c. 269, § 10 (n); 

one count of receiving a firearm with a defaced serial number, 

G. L. c. 269, § 11C; and two counts of witness intimidation, 

G. L. c. 268, § 13B.
8

defendant was arraigned in the Superior Court and was provided 

with the discovery he had been seeking from the BMC.

b. Meade. Shortly after midnight on July 5, 2015, a 

"black male" wearing a red sweatshirt approached a sedan parked 

on a street in the Roxbury section of Boston, and fired 

approximately three shots into the vehicle. Four people, 

including the driver, were inside; two passengers were hit. The 

driver drove away from the scene, pulled up next to a nearby 

police cruiser, and sought help. The two victims were taken to 

a hospital. Police interviewed the driver and one of the 

passengers,8 and obtained a surveillance video recording of the 

shooting.

On July 8, 2015, police showed a photographic array, which 

did not contain a photograph of Meade, to the driver and one of 

the passengers. Neither could identify any of the pictured 

individuals as the shooter. On July 10, 2015, Meade was 

arrested and held in custody on an unrelated charge. On July 

11, 2015, police presented another photographic array to the 

driver and to the passenger,9 this time containing a photograph 

of Meade. Both separately identified Meade as the shooter.

 

8 Because the copy of the relevant police report in the 

record is redacted, it is not clear whether the passenger 

interviewed was one of the victims.

9 It is not clear whether this was the same passenger to 

whom police had shown the first photograph array.
9

Two days later, a ten-count complaint issued against Meade 

in the BMC. Three of the counts –- carrying a firearm without a 

license, G. L. c. 269, § 10 (a); carrying a loaded firearm 

without a license, G. L. c. 269, § 10 (n); and possessing 

ammunition without an FID card, G. L. c. 269, § 10 (h) (1) --

were within the final jurisdiction of that court. The other 

seven were not.10 Meade was arraigned the same day.

At arraignment, a probable cause hearing was scheduled for 

August 12, 2015. In advance of that hearing, Meade sought 

discovery of the photographic arrays, several police reports, 

and contact information for witnesses mentioned in the reports. 

Over the Commonwealth's objection, the judge allowed Meade's 

motion for discovery, ordering that the discovery "be disclosed 

and turned over by" August 10, 2015, two days before the 

hearing. The judge stated that Meade's "ability to defend 

himself and assist his attorney in his defense [at the probable 

cause hearing] will be impacted severely if they're not allowed 

to obtain this discovery." She also entered a protective order 

 

10 The counts over which there was no final jurisdiction 

were four counts of armed assault with intent to murder, G. L. 

c. 265, § 18 (b); carrying a firearm without a license as a 

second offense, G. L. c. 269, § 10 (a), (d); committing a 

firearm violation having been convicted of three violent crimes 

or three serious drug offenses, G. L. c. 269, § 10G (c); and 

possessing a firearm while committing a felony, G. L. c. 265, 

§ 18B.
10

allowing disclosure of the witnesses' contact information only 

to Meade's counsel.11

On August 10, 2015, the day discovery was to be turned 

over, the Commonwealth filed a petition in the county court 

pursuant to G. L. c. 211, § 3, seeking relief from the discovery 

order, and also seeking a stay of that order. A stay issued 

later that day, and, on August 14, 2015, the single justice 

vacated the order. The defendant thereafter filed a notice of 

appeal. On October 9, 2015, a Suffolk County grand jury 

returned eleven indictments against Meade.12 On November 16, 

2015, the Commonwealth provided Meade the discovery that he had 

sought in the BMC.

2. Discussion. The Commonwealth contends that the two 

judges did not have authority to order discovery in advance of 

the probable cause hearings. Teixeira maintains that the 

 

11 On July 31, 2015, the defendant filed a second motion for 

discovery, seeking other evidence referenced in the police 

report. The court took no action on that motion.

12 Meade was indicted on four counts of armed assault with 

intent to murder, G. L. c. 265, § 18 (b); carrying a firearm 

without a license as a second offense, G. L. c. 269, § 10 (a)

and (d), and after having been convicted of three violent crimes 

or three serious drug offenses, G. L. c. 269, § 10G (c); 

carrying a loaded firearm, G. L. c. 269, § 10 (n); assault and 

battery by means of a dangerous weapon, G. L. c. 265, § 15A; two 

counts of assault and battery by means of discharging a firearm, 

G. L. c. 265, § 15E; and two counts of attempted assault and 

battery by means of discharging a firearm, G. L. c. 265, § 15F.
11

Commonwealth should be sanctioned for its failure to comply with 

the discovery order in the BMC.

a. Mootness. Because the defendants have been indicted 

and are no longer entitled to probable cause hearings, the 

discovery orders themselves are moot. Mass. R. Crim. P. 3 (f), 

as appearing in 442 Mass. 1502 (2004). Commonwealth v. Perkins, 

464 Mass. 92, 95 (2013) (Perkins). See Lataille v. District 

Court of E. Hampden, 366 Mass. 525, 531 (1974) (Lataille) 

("return of an indictment is itself a determination of probable 

cause and renders unnecessary a preliminary hearing"). 

"However, it is within the discretion of this court to answer 

questions that, due to circumstances, no longer may have direct 

significance to the parties but raise issues of public 

importance and, because of their nature, may be 'capable of 

repetition, yet evading review.'" Perkins, supra, quoting 

Lockhart v. Attorney Gen., 390 Mass. 780, 782–783 (1984).

The issue here -- whether a BMC judge may order discovery 

in anticipation of a probable cause hearing -- is one that 

"implicate[s] the . . . interests of all defendants who are so 

situated, and more generally [is] significant for the proper 

administration of the criminal justice system." See Perkins, 

supra. The issue also is likely to evade appellate review, 

since it becomes moot upon the return of an indictment, when a 

defendant loses his or her right to a probable cause hearing. 
12

See Lataille, supra. Moreover, "[w]e have been advised that the 

issue is occurring on a frequent basis in the trial courts and 

uncertainty exists whether an order similar to the one[s] in 

issue can be entered." Commonwealth v. Durham, 446 Mass. 212, 

217, cert. denied, 549 U.S. 855 (2006). We therefore consider 

the issue raised in these cases.

b. Discovery. Defendants who are charged by complaint in 

the BMC, but whose cases will be finally adjudicated in the 

Superior Court, have a statutory right to a probable cause 

hearing, "unless an indictment has been returned for the same 

offense."13 Mass. R. Crim. P. 3 (f). See Lataille, supra

("indictment is itself a determination of probable cause and 

renders" hearing "unnecessary"). General Laws c. 276, § 38, 

provides that, "as soon as may be" after a complaint issues, a 

BMC judge

"shall . . . examine on oath the complainant and the 

witnesses for the prosecution, in the presence of the 

defendant, relative to any material matter connected with 

such charge. After the testimony to support the 

prosecution, the witnesses for the prisoner, if any, shall 

be examined on oath, and he may be assisted by counsel in 

such examination and in the cross examination of the 

witnesses in support of the prosecution."

 

13 This right applies both to defendants whose charges are 

outside the final jurisdiction of the BMC, and those who are 

"charged . . . with an offense within the concurrent 

jurisdiction of the [BMC] and Superior Courts for which the 

[BMC] will not retain jurisdiction." Mass. R. Crim. P. 3 (f), 

as appearing in 442 Mass. 1502 (2004).
13

Following this hearing, the judge assesses whether "there is 

probable cause to believe that the defendant committed the crime 

or crimes alleged in the complaint" and, on that basis, whether 

to "bind the defendant over to the Superior Court" for final 

adjudication of the charges.14 Mass. R. Crim. P. 3 (f).

Neither the statute, the rules of criminal procedure, nor 

any trial court standing order provides for discovery in advance 

of the probable cause hearing. The question we confront is 

whether a judge, in his or her discretion, nonetheless may order 

discovery to promote the parties' full participation in the 

hearing and, thereby, to assist in the assessment of probable 

cause. See Myers v. Commonwealth, 363 Mass. 843, 851-852 (1973) 

("primary function of the probable cause hearing of screening 

out 'an erroneous or improper prosecution,' . . . can only be 

effectuated by an adversary hearing where the defendant is given 

a meaningful opportunity to challenge the credibility of the 

prosecution's witnesses and to raise any affirmative defenses he 

 

14 The probable cause standard used at such a hearing is 

more demanding than "probable cause to arrest." Myers v. 

Commonwealth, 363 Mass. 843, 849 (1973). The judge

"view[s] the case as if it were a trial and he were 

required to rule on whether there is enough credible 

evidence to send the case to the jury. Thus, the 

magistrate should dismiss the complaint when, on the 

evidence presented, a trial court would be bound to acquit 

as a matter of law."

Id. at 850.
14

may have" [citation omitted]). For the reasons that follow, we 

conclude that, subject to certain limitations, a judge may order 

discovery to assist in this process.

General Laws c. 276, § 38, is silent on the question 

whether a BMC judge may issue discovery orders, or any other 

orders, in anticipation of a probable cause hearing. That such 

authority is not provided explicitly in the terms of the 

statute, however, does not mean that it does not exist. 

"[C]ourts have inherent power 'to do whatever may be done under 

the general principles of jurisprudence to insure to the citizen 

a fair [hearing], whenever his life, liberty, property or 

character is at stake'" (citation omitted). Commonwealth v. 

Charles, 466 Mass. 63, 73 (2013). We have noted, in this vein, 

that "the District Court [and the BMC] have the power to 

[issue] . . . orders which are reasonably designed to provide 

the means for intelligent consideration of probable cause"

(citation omitted). Commonwealth v. Hinterleitner, 391 Mass. 

679, 683 (1984). To the extent that a judge's order is "a 

legitimate exercise of [this] inherent power of the District 

Courts [or BMC], the lack of statutory authorization for that 

[order] is immaterial." Brach v. Chief Justice of the Dist. 

Court Dep't, 386 Mass. 528, 535 (1982).

A court's "[i]nherent powers" constitute, among other 

things, those "whose exercise is essential to . . . [the 
15

court's] capacity to decide cases" (citation omitted).15 Id. 

This includes the authority "to facilitate . . . discovery." 

DaRosa v. New Bedford, 471 Mass. 446, 454 (2015), quoting 

Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 214 (2011). 

See Cavanaugh v. McDonnell & Co., 357 Mass. 452, 454 (1970), 

quoting Owens-Illinois Glass Co. v. Bresnahan, 322 Mass. 629, 

631 (1948) (power to order discovery "does not depend upon 

statute, but is a part of the general jurisdiction of a court of 

equity"); G. L. c. 218, § 19C ("district court and [BMC] 

departments of the trial court shall have the same equitable 

powers and jurisdiction as is provided for the superior court"). 

Accordingly, to the extent discovery is "essential" to a judge's 

"capacity to decide" the question of probable cause, it is 

within his or her inherent powers to order it. See Brach v. 

Chief Justice of the Dist. Court Dep't, supra at 535.

We are persuaded that, in at least some instances, a judge 

reasonably could conclude that prehearing discovery is 

 

15 As a general matter, a court's inherent powers are 

strongest with respect to matters of procedure. See Brach v. 

Chief Justice of the Dist. Court Dep't, 386 Mass. 528, 535 

(1982) ("All the inherent powers recognized by this court . . . 

have involved the internal functioning of the judiciary"). 

See, e.g., Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 

213-214 (2011) (inherent authority "to issue protective 

orders"); Commonwealth v. Wilcox, 446 Mass. 61, 69 (2006) 

(inherent authority "to grant pretrial bail and [to] compel the 

presence of a defendant at trial"); George W. Prescott Publ. Co. 

v. Register of Probate for Norfolk County, 395 Mass. 274, 277 

(1985) (inherent authority "to impound . . . files" [citation 

omitted]).
16

"essential." This is so because, at a hearing pursuant to G. L. 

c. 276, § 38, "complete cross-examination and the . . . 

present[ation of] affirmative defenses [a]re crucial and 

necessary to effectuate a true probable cause standard," 

Lataille, supra at 530; these functions, in turn, often are 

facilitated by material obtained through discovery. See, e.g., 

Myers, supra at 852 (absent evidence obtained by defendant 

before hearing and used during cross-examination, "examining 

magistrate could not have possibly made an informed judgment").

The Appeals Court reached a similar conclusion in 

Commonwealth v. Silva, 10 Mass. App. Ct. 784, 791 (1980). In 

holding that a prosecutor may be sanctioned for disobeying an 

order to provide prehearing discovery, the court presumed that a 

District Court judge has inherent authority to issue such an 

order. See id. at 790-791 ("In connection with that hearing, it 

is essential that the District Court have the power to enforce 

any of its orders which are reasonably designed to provide the 

means for intelligent consideration of probable cause . . ."). 

Similarly, courts in other jurisdictions have held that a 

"court[] ha[s] the inherent power to order appropriate . . . 

discovery . . . ancillary to [its] statutory power to determine 

whether there is probable cause to hold the defendant to 

answer." Holman v. Superior Court of Monterey County, 29 Cal. 

3d 480, 485 (1981) (magistrates may order such discovery 
17

notwithstanding that criminal charges are outside their final 

jurisdiction). See State v. Laux, 167 N.H. 698, 704 (2015) 

("circuit court has the inherent authority, within its sound 

discretion, to order discovery prior to the preliminary hearing" 

even where final adjudication will take place in superior 

court); State v. Easthope, 668 P.2d 528, 531 (Utah 1983) ("power 

to compel discovery is . . . inherent in the magistrate's power 

to conduct" probable cause hearing). See also People v. Laws, 

218 Mich. App. 447, 451 (1996) ("district court may order 

discovery in carrying out its duty to conduct preliminary 

examinations" and may do so "before the preliminary 

examination").16

This analysis notwithstanding, the Commonwealth contends 

that BMC judges have no authority to order prehearing discovery, 

and that, even if they have such authority, they ought not to 

exercise it.

 

16 But see People v. Quinn, 183 Colo. 245, 251 (1973) 

("discovery should not be ordered prior to the preliminary 

hearing"); Janklow v. Talbott, 89 S.D. 179, 183 (1975) (same). 

The Commonwealth cites two other decisions from other 

jurisdictions that are claimed to reflect a similar conclusion. 

Those cases however, involved materially different issues from 

the question before this court. See State v. O'Brien, 349 Wis. 

2d 667, 682 (2013), aff'd, 354 Wis. 2d 753, 850, cert. denied, 

135 S. Ct. 494 (2014) (no constitutional right to prehearing 

discovery); Almada v. State, 994 P.2d 299, 303 (Wyo. 1999) 

(prehearing discovery proper in general, but improper where 

judge "ordered the State to permit discovery of material which 

did not pertain to probable cause").
18

The Commonwealth notes, first, that BMC judges may not 

depart from the rules of criminal procedure, which make no 

provision for discovery in advance of a probable cause hearing. 

See Carlisle v. United States, 517 U.S. 416, 426 (1996) 

("Whatever the scope of [a court's] 'inherent power,' however, 

it does not include the power to develop rules that circumvent 

or conflict with the Federal Rules of Criminal Procedure"). 

This silence, the Commonwealth argues, is significant because 

the rules anticipate other occasions when BMC judges may or must 

issue discovery orders. See Mass. R. Crim. P. 11 (b), as 

appearing in 442 Mass. 1509 (2004) (at pretrial hearing, courts 

"shall" consider discovery motions); Mass. R. Crim. P. 14, as 

amended, 444 Mass. 1501 (2005) (requiring automatic pretrial 

discovery of certain materials); Dist./Mun. Cts. R. Crim. P. 3 

(where charges fall within court's final jurisdiction, judge 

"shall" issue order at arraignment "requir[ing] the parties to 

provide . . . discovery"). These occasions, in the 

Commonwealth's view, "occupy the field" and leave no room for 

the discretionary discovery at issue here.17

 

17 The Commonwealth also argues that, if the Legislature had 

intended to provide defendants with a prehearing right to 

discovery, it would have stated so explicitly, much as it has in 

other contexts. See, e.g., G. L. c. 231, §§ 61-69 (right to 

discovery in civil litigation). The question here, however, is 

whether a court has discretionary authority to order discovery, 

not whether the Legislature provided defendants with a right to 

such discovery.
19

The Commonwealth's contention is unavailing. The fact that 

the procedural rules are silent about a court's authority to 

exercise one of its inherent powers does not imply that the 

rules envision the court being deprived of that power. See 

Bradford v. Knights, 427 Mass. 748, 752 (1998) ("While the 

Massachusetts Rules of Criminal Procedure do not expressly 

permit a judge to rehear a matter, no policy prohibits 

reconsideration of an order or judgment in appropriate 

circumstances," and doing so is an "inherent power of a court" 

[citation omitted]). See also Reporters' Notes (2004) to 

Rule 1, Mass. Ann. Laws Court Rules, Rules of Criminal 

Procedure, at 1343 (LexisNexis 2015) (rules are "general and

flexible, prescribing only basic essentials").

Nor are we persuaded that the rules of criminal procedure 

cited by the Commonwealth were intended to occupy the field with 

respect to discovery. Those rules concern one specific issue: 

the mandatory pretrial discovery process. See Mass. R. Crim. 

P. 13 (e), as appearing in 442 Mass. 1516 (2004) (defendants 

have "right to a hearing" on motions for further discovery); 

Mass. R. Crim. P. 14 (requiring automatic discovery of certain 

materials); Dist./Mun. Cts. R. Crim. P. 3 (at arraignment, judge 

"shall" issue discovery order). Even if these rules set forth 

the exclusive means through which mandatory pretrial discovery 

is to be conducted, they imply nothing about the availability or 
20

lack of availability of the discretionary prehearing process at 

issue here.18

As mentioned, the Commonwealth maintains also that, even if 

BMC judges have authority to order prehearing discovery, it 

would be unwise for them to exercise it. The Commonwealth 

expresses concern that, because prehearing discovery might 

reveal the identities of the prosecution's witnesses, it will 

lead to witness tampering.19 Such tampering is asserted to be 

 

18 Indeed, the Commonwealth concedes in its brief that, "in 

the course of a probable cause hearing, there may arise 

circumstances in which a judge may properly order a Commonwealth 

witness to disclose information that is central to the 

determination of probable cause." The rules of criminal 

procedure, however, contain no explicit provision concerning 

such an order.

19 The Commonwealth contends further that prehearing 

discovery will not provide defendants with significant practical 

benefits, as they can learn the essential aspects of the 

Commonwealth's case either at the hearing itself or when 

discovery is turned over upon the conclusion of a "prompt grand 

jury investigation." See Janklow v. Talbott, 89 S.D. at 181-

182; Superior Court Standing Order 2-86 (discovery to be 

provided at arraignment).

In practice, however, probable cause hearings, which are 

meant to be conducted "as soon as may be" after a defendant is 

charged, see G. L. c. 276, § 38, have largely become extinct. 

This has happened not, as the Commonwealth contends, because 

"prompt grand jury investigations" usually lead to the issuance 

of an indictment before the scheduled date of the probable cause 

hearing, but because the Commonwealth routinely is granted a 

series of continuances -- usually between three and four months 

in total length –- that postpone the hearing until an indictment 

issues and the hearing no longer is required. See Commonwealth

v. Perkins, 464 Mass. 92, 108 (2013) (Gants, J., concurring) ("a 

probable cause hearing in a criminal case is virtually never 

conducted in the courts of Massachusetts; the only preliminary 
21

particularly problematic during the early stages of an 

investigation, when witnesses might not yet have revealed the 

full extent of their knowledge to police or to a grand jury. 

See Commonwealth v. Tavares, 459 Mass. 289, 305 (2011) (Gants, 

J., concurring) (instances of "victims or witnesses refusing to 

cooperate or changing or recanting earlier testimony . . . 

occurred in up to ninety per cent of [Suffolk County district 

attorney's] cases involving guns, gangs, or serious violence").

While we acknowledge the gravity of this concern, judges of 

the BMC have adequate means at their disposal to address it if 

the situation requires. For example, when discovery is 

warranted, they may, as here, issue protective orders concerning 

a witness's identity or contact information, allowing it to be 

disclosed only to defense counsel. See Mass. R. Crim. P. 14 (a) 

(6) ("judge may, for cause shown, grant discovery to a defendant 

on the condition that the material to be discovered be available 

only to counsel for the defendant"). See also Berend, Less 

Reliable Preliminary Hearings and Plea Bargains in Criminal 

Cases in California: Discovery Before and After Proposition 

115, 48 Am. U. L. Rev. 465, 522 n.244 (1998) ("study . . . 

 

screening of a defendant's case is conducted by a grand jury, 

sometimes months after the initial appearance").20 Charges of 

witness intimidation, G. L. c. 268, § 13B, were pending against 

both defendants. In Meade's case, the Commonwealth gave as an 

additional reason that the shooting was an apparently "random 

act of violence" and that the victims and perpetrator did not 

know each other.
22

concluded that early and broad discovery in California not only 

encouraged more early guilty pleas, but had no impact on witness 

intimidation"). Where a protective order is insufficient, 

judges simply may deny the discovery request altogether. Cf. 

Cronin v. Strayer, 392 Mass. 525, 534 (1984) (trial court judges 

are "in the best position to weigh fairly the competing needs 

and interests of parties affected by discovery" [citation 

omitted]).

We turn now to the orders at issue here. The parties 

recognize that, to the extent that BMC judges have authority to 

order prehearing discovery, there was no abuse of discretion in 

ordering it in these two cases. In each, the central issue at 

the probable cause hearing was likely to be whether the 

defendants had been identified correctly by witnesses, and each 

defendant sought discovery of materials that would allow him to 

test this issue, such as police reports, photographic arrays, 

the identities of the witnesses, and surveillance video. See 

Holman v. Superior Court of Monterey County, 29 Cal. 3d 480, 

485-486 (1981) (judge properly ordered "limited discovery 

directed to the restricted purpose of the preliminary 

examination"). Without these materials, as the judge in 

Teixeira's case reasoned, "discrepancies [regarding 

identification], which might raise genuine issues with respect 

to probable cause, could not be explored" at such a hearing. 
23

See id. at 485 (discovery proper if has been "show[n] that such 

discovery is reasonably necessary to prepare for the preliminary 

examination"). At the same time, recognizing the Commonwealth's 

particularized concerns regarding witness intimidation,20 the 

judges in both cases issued protective orders shielding the 

witnesses' contact information from the defendants, and the 

judge in Teixeira's case issued an order preventing the 

defendant from learning their names. Given that the defendants 

demonstrated good cause for seeking discovery directed to the 

restricted purpose of the probable cause hearing, that the 

resulting orders were carefully circumscribed, and that they 

were accompanied by protective orders addressing the 

Commonwealth's particularized concerns, we discern no abuse of 

discretion.

c. Teixeira's motion for sanctions. Teixeira asks that 

this court impose sanctions on the Commonwealth for failing to 

comply with the BMC judge's discovery order during the period 

before a stay was issued by the single justice.21 He seeks 

 

20 Charges of witness intimidation, G. L. c. 268, § 13B, 

were pending against both defendants. In Meade's case, the 

Commonwealth gave as an additional reason that the shooting was 

an apparently "random act of violence" and that the victims and 

perpetrator did not know each other.

21 The discovery order was issued on June 24, 2015, took 

effect on June 30, 2015, and was stayed by a single justice of 

this court seven days later, on July 7, 2015.
24

dismissal of the indictments or, alternatively, imposition of 

another "appropriate sanction."

The Commonwealth acted inappropriately by failing to comply 

with the judge's order. Even if that order had been issued in 

error, the Commonwealth was not without its remedies. It could 

have, as in Meade's case, sought an immediate stay from the 

single justice pursuant to G. L. c. 211, § 3. Instead, it 

waited until eight days after the order issued -- and two days 

after it went into effect -- to seek such relief. The 

Commonwealth may not fail to pursue a timely appeal and then 

disobey a judge's order when the opportunity for appeal is no 

longer available. "Litigants may not resort to self-help 

remedies and unilaterally flout court decrees." Commonwealth v. 

Carney, 458 Mass. 418, 433 n.20 (2010). If a court issues a 

directive that a party believes to be unlawful, it "must be

obeyed, and until it is reversed by orderly review, it is to be 

respected." Id., quoting Mohamad v. Kavlakian, 69 Mass. App. 

Ct. 261, 264 (2007).

Nonetheless, we are constrained to conclude that dismissal 

would not be an appropriate sanction for the Commonwealth's 

conduct, as "we have never upheld the dismissal of a complaint 

or indictment for misconduct in the absence of a showing of 

prejudice." Commonwealth v. Hernandez, 421 Mass. 272, 278 

(1995). Teixeira has not attempted to make such a showing, nor 
25

would he be able to do so. See id. at 279-280 (before 

dismissing complaint, trial judge must determine that "the 

prosecutor's refusal to disclose [information following 

discovery order] 'caused such irreparable prejudice that the 

defendant could not receive a fair trial if the complaint were 

reinstated'" [citation omitted]).

Whether some other sanction is appropriate we leave to the 

discretion of the Superior Court judge in whose jurisdiction 

this case now lies. See id. at 280 & n.8 (while dismissal with 

prejudice not appropriate, case remanded for factual findings 

and determination whether "some other sanction" appropriate); 

Reporters' Notes (Revised, 2004) to Rule 14, Mass. Ann. Laws 

Court Rules, Rules of Criminal Procedure, at 1517 (rule 

regarding sanctions "is based on [the] assumption that the trial 

court is in the best situation to consider the opposing 

arguments concerning a failure to comply with a discovery order 

and to fashion an appropriate remedy").

3. Conclusion. The orders requiring discovery in the 

Boston Municipal Court are affirmed. In Teixeira's case, the 

matter is remanded to the Superior Court for consideration, 

after any hearings that the judge may deem appropriate, whether 

a sanction should be imposed on the Commonwealth for its refusal 

to obey the Boston Municipal Court judge's order and, if so, the 

nature of the sanction.
26

So ordered.