The Massachusetts Supreme Judicial Court reaffirmed today that a criminal defendant does not have the right to compel a judge to grant immunity to a witness. The name of the case is Commonwealth v. Brewer.
The defendant was convicted of second-degree murder and a number of firearms offenses as a result of an incident that occurred in Brockton in 2007. Dozens of youths, including the 17-year-old victim, attended a party at a vacant house in the city. As the victim was standing outside talking to his friend, he was shot twice. He died a few hours later at the hospital. It did not appear that the victim was the target of the shooting. Several of the party’s attendants started arguing as they spilled out onto the adjacent streets and gunshots rang out. Multiple witnesses identified the defendant as the shooter.
One of the Commonwealth’s witnesses had initially been charged with accessory after the fact for allegedly driving the killer away after the shooting. Those charges were later dismissed and the witness testified at the defendant’s trial. After being granted immunity by the Commonwealth, the witness testified that he saw the defendant shoot the victim. The defense theory was that one of two men (including the Commonwealth’s immunized witness) had accidentally shot the victim.
After the Commonwealth rested, the defense attorney indicated that he intended to call two witnesses to testify on behalf of the defendant. Those witnesses, who had made observations regarding the crime, both claimed that their testimony might incriminate themselves. Therefore, they exercised their Fifth Amendment rights not to testify. The judge conducted secret hearings with the proposed witnesses and concluded that they did, in fact, have valid Fifth Amendment privileges. The defense attorney asked the judge to grant immunity to the witnesses to allow them to testify and the judge refused to do so. The defendant appealed, arguing that the prosecutor’s selective grant of immunity to its own witness had deprived the defendant of his opportunity to present exculpatory evidence.
The Supreme Judicial Court agreed with the trial judge that the defendant was not entitled to have his proposed witnesses immunized. The Court said that it is the role of a district attorney or the attorney general to grant immunity to a witness. The Court’s decision suggested that if prosecutorial misconduct is involved, a judicial grant of immunity might be considered, but the facts of this case do not present the type of “unique circumstances” that would warrant a judge to immunize a witness. The Court relied heavily on its conclusion that the prosecutor did not use improper motivation to grant immunity to only one witness in the case.
This is a terrible ruling for criminal defendants. The government already has incredible resources to investigate and prosecute alleged criminals. To also allow the government the exclusive ability to determine what witnesses will be compelled to testify under a grant of immunity unfairly limits defendants’ abilities to present testimony that could exonerate them. A judge should have the power to grant immunity to witnesses when a defendant can make an offer of proof that the proposed witnesses’ testimony would be probative of the defendant’s guilt or innocence.