Suffolk County prosecutors lead the Commonwealth in utilizing the state’s Witness Protection Program to keep victims, witnesses, and their families safe.
At one time, witness intimidation of one sort or another was estimated as being present in approximately 90% of Suffolk County prosecutions involving guns, gangs and violence – and for years law enforcement and the courts were hamstrung in their efforts to deter and prosecute it.
After extensive lobbying and advocacy by Suffolk prosecutors and partner agencies, however, a bill to create a statewide Witness Protection Fund was passed by the Massachusetts legislature and signed into law by the governor in 2006. In its first year, the Witness Protection Board provided emergency funds for 145 endangered witnesses or family members – 114 of whom were involved in Suffolk County cases. To date, no critical witness in a Suffolk case has been denied emergency funding from the Witness Protection Program, and Suffolk County victims and witnesses continue to receive the majority of state-sponsored emergency assistance.
Witness Protection Board reports:
WPF Report 2007-2009
WPF Report 2010-2011
WPF Report 2012-2013-2014
The same legislation also made it easier to charge and prosecute threats, intimidation, and perjury committed to thwart the interests of justice — supplementing a growing body of case law that grew out of Suffolk County prosecutions and appellate strategies. Among the key decisions by the Supreme Judicial Court are:
Commonwealth v. Edwards The Supreme Judicial Court’s 2005 decision in Edwards brought to Massachusetts the “forfeiture by wrongdoing” exception to the hearsay rule as it is recognized in many other jurisdictions nationwide. Pursuant to this exception, a defendant who has caused a witness to be unavailable for trial forfeits his right to cross-examine that witness and, consequently, cannot object to the admission of that absent witness’s statements. Edwards reduces the incentive for defendants to convince witnesses (whether by intimidation or persuasion) to avoid testifying and allows the Commonwealth to proceed when defendants do procure absence.
The Edwards decision states that, because intimidation and threats are often hard to prove, prosecutors only have to prove that the defendant had a “meaningful impact” on the witness’s unavailability or decision not to testify. Although “forfeiture by wrongdoing” has been adopted by the federal courts and many States, our version of the doctrine is one of the broadest.
Commonwealth v. Le The 2005 SJC decision in Le held that, if a witness cannot remember making a prior identification or denies having made one, prosecutors may nonetheless introduce testimony from a second witness who saw the first witness make the identification to prove the defendant’s identity. Until this decision changed the law, a prior identification was admissible only if the witness admitted on the stand to having made it – regardless of whether he stood by it.
Since the most common form of witness intimidation is convincing witnesses to deny a prior identification, this case is a valuable tool. Now, once a witness makes an identification, it is admissible, so long as the witness is available to testify. Thus, Edwards covers the situation where the defendant causes the witness not to be available at trial, and Le covers the situation where the defendant causes the witness to attend trial but to lie.
Commonwealth v. Pagan Another 2005 SJC decision, Commonwealth v. Pagan, should also assist in addressing witness intimidation. Pagan holds that once a defendant’s bail has been revoked, that order will remain in effect for 60 days (except in very particular circumstances). The significance of this ruling in the witness intimidation context is that a defendant who intimidates a witness while on bail can expect a non-negotiable period of 60 days in jail.
