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Massachusetts Supreme Judicial Court Reverses Trial Court’s Order that Witness Testify and Likely Incriminate Himself

In an important decision delivered last Friday, the Massachusetts Supreme Judicial Court reversed a district court judge’s order that a witness in a criminal case testify at trial, even though the witness’ testimony would tend to incriminate him.  The name of the case is Commonwealth v. Leclair

The defendant was charged with committing an assault and battery against his girlfriend in 2012.  The alleged crime occurred in the witness’ apartment.  On the trial date, the Commonwealth announced its intention to call the witness to testify against the defendant.  The witness refused to testify and claimed, through his attorney, that his truthful testimony would tend to incriminate him.  The trial judge was skeptical and demanded to know the substance of the witness’ testimony.  It was revealed that the witness would admit to using cocaine on the evening of the altercation between the defendant and his girlfriend.

The judge ruled that such testimony would not place the witness at a real risk of prosecution.  Instead, the witness’ proposed testimony would result in only “a mere imaginary, remote, or speculative possibility of prosecution.”  Based on his ruling, the judge ordered the witness to testify at the trial.  The prosecutor called the witness to testify and did not ask him any questions about his drug use.  However, on cross-examination, the defendant’s attorney immediately asked the witness what substances he had ingested on the evening of the altercation.  After initially declining to answer, the witness admitted that he had used cocaine.  When the defendant’s attorney asked how much cocaine the witness had consumed, the witness refused to answer any more questions.  The judge found the witness in contempt and sentenced him to serve 90 days in jail.  The sentence was stayed while the witness appealed the judge’s order the he testify.

The Fifth Amendment to the United States Constitution, and Article 12 of the Massachusetts Declaration of Rights, guarantees that no person shall be compelled in any criminal case to be a witness against himself.  Accordingly, a witness may refuse to testify when he or she reasonably believes that the testimony could be used in a criminal prosecution or could lead to other evidence that might be used in a criminal prosecution.

The Supreme Judicial Court ruled that the witness in this case clearly had a Fifth Amendment privilege to refuse to testify.  Even if the drugs are no longer available to be tested, the witness’ admissions at trial could result in the questioning of others concerning the witness’ drug use on that night, or could provide leads for other criminal investigations.

During the trial, the prosecutor presented a written statement asserting that his office would not prosecute the defendant for violating the controlled substance laws if he testified that he was using cocaine on the evening in question.  The Supreme Judicial Court said the prosecutor’s promise not to prosecute was insufficient for two reasons.  First, a district court judge does not have the authority to grand immunity to a witness (unlike a superior court judge).  Second, Massachusetts recognizes “transactional immunity,” which means that every prosecuting office in Massachusetts would have been required to assert that they would not prosecute the defendant for his potential criminal conduct.  The promise of a single assistant district attorney from a single county was insufficient.

This case is an important reminder that judges cannot force witnesses to testify when their testimony would incriminate them in crimes.

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