In the Matter of a Grand Jury Investigation ( 2020 )

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SJC-12869
IN THE MATTER OF A GRAND JURY INVESTIGATION.
Suffolk. April 7, 2020. - September 8, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Grand Jury. District Attorney. Police Officer. Evidence,
Grand jury proceedings, Testimony before grand jury,
Immunized witness, Exculpatory, Disclosure of evidence,
Impeachment of credibility. Practice, Criminal, Grand jury
proceedings, Immunity from prosecution, Disclosure of
evidence. Witness, Immunity, Impeachment, Police officer.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on October 2, 2019.
The case was reported by Cypher, J.
William T. Harrington (Edward P. Harrington also present)
for the petitioners.
Shoshana E. Stern, Assistant District Attorney, for the
Commonwealth.
Scott P. Lewis, Samuel B. Dinning, Matthew R. Segal,
Jessica J. Lewis, & Daniel L. McFadden, for American Civil
Liberties Union of Massachusetts, Inc., & another, amici curiae,
submitted a brief.
2
GANTS, C.J. In 2019, the district attorney learned through
immunized grand jury testimony that two police officers, the
petitioners in this case, knowingly made false statements in
their police reports that concealed the unlawful use of force by
a fellow officer against an arrestee and supported a bogus
criminal charge of resisting arrest against the arrestee. The
district attorney, to his credit, prepared a discovery letter
describing the petitioners' misconduct and asked a Superior
Court judge to authorize its disclosure to defense counsel as
potentially exculpatory information in unrelated criminal cases
where the petitioners might be witnesses. The judge authorized
the disclosure. The petitioners appealed, claiming that the
information should not be disclosed to defense counsel in
unrelated cases because disclosure is not constitutionally
required and would reveal information obtained from immunized
testimony before a grand jury. We affirm the judge's order of
disclosure.1
Background. We recite the facts of this case based upon
the information contained in the G. L. c. 211, § 3, petition and
the parties' agreed upon statement of facts. The petitioners
are Fall River police officers who were present when fellow
1 We acknowledge the amicus brief submitted by the American
Civil Liberties Union of Massachusetts, Inc., and the
Massachusetts Association of Criminal Defense Lawyers, Inc.
3
police officer, Michael Pessoa, used force while arresting an
individual (arrestee) on February 12, 2019. Pessoa submitted an
arrest report concerning the arrest; the petitioners did not. A
few hours after the arrest, the petitioners were ordered by
their superiors to each complete the police department's Use of
Defensive Tactics Report (use-of-force report) because the
arrestee was observed to have a bloody lip while being booked at
the police station. The petitioners are not themselves alleged
to have used force during this incident.
The use-of-force report is a preprinted two-page form that
a police officer must complete after using force on a suspect or
arrestee. The kinds of use-of-force range from the use of a
firearm or pepper spray, to the use of certain hands-on force,
such as an "arm bar take down". A use-of-force report is not an
incident report or an arrest report; rather, it is an internal
police department report generated to memorialize an officer's
use of force during an encounter with an individual. Each of
the petitioners executed a use-of-force report that, in essence,
adopted Pessoa's version of events as set forth in his incident
report -- namely, that the arrestee was noncompliant, threatened
to punch the officers, and was then taken to the ground by
Pessoa in making the arrest.2
2 One of the petitioners wrote: "Subject was non-compliant,
and threatened to punch Officers. He then refused to comply
4
After the arrestee was charged with various offenses,
including resisting arrest, his defense attorney provided the
district attorney for the Bristol district with a videotape of
surveillance footage that showed the arrest and Pessoa's use of
force on the arrestee.3 The footage of the incident was
inconsistent with the descriptions the petitioners provided in
their use-of-force reports.4 Specifically, the footage showed
that the arrestee was physically compliant when one of the
petitioners removed his handcuffs, and that Pessoa then struck
the arrestee on the left side of his head-shoulder area, causing
the arrestee, according to the agreed upon statement of facts,
"to be taken to the ground in a violent manner."5
Prompted by the videotape, the district attorney initiated
a criminal investigation into Pessoa's conduct. This
investigation resulted in a grand jury returning fifteen
with verbal commands and was taken to the ground in an effort to
effect an arrest." The other petitioner wrote: "Subject was
disorderly, non-compliant, and threatened to punch officers in
the face. Subject was subsequently taken to the ground via an
arm bar take down." Officer Michael Pessoa's incident report is
not part of the record on appeal.
3 The arrestee was charged with assault and battery by means
of a dangerous weapon (a shod foot), disorderly conduct
(subsequent offense), disturbing the peace, threat to commit a
crime, assault, and resisting arrest.
4 The videotape is not part of the record on appeal.
5 The force used by Pessoa was inconsistent with an arm bar
take down.
5
indictments against Pessoa for crimes involving four separate
arrestees, including charges for assault and battery by means of
a dangerous weapon causing serious bodily injury, assault and
battery, civil rights violations, witness intimidation, filing
false police reports, and malicious destruction of property.6
During the criminal investigation of Pessoa, the district
attorney subpoenaed the petitioners to testify before the grand
jury. In light of the apparent inconsistencies between their
use-of-force reports and the videotape, the petitioners each
asserted his privilege against self-incrimination under the
Fifth Amendment to the United States Constitution and art. 12 of
the Massachusetts Declaration of Rights. The district attorney
then sought and obtained orders of immunity pursuant to
G. L. c. 233, §§ 20C-20G, from a Superior Court judge. The
judge found that each petitioner "did validly refuse to answer
questions or produce evidence on the grounds that such testimony
or such evidence might tend to incriminate him." The immunity
orders provided that the petitioners
"be granted immunity from prosecution, and not be
subjected to any penalty or forfeiture with respect to
the transaction, matter or thing concerning which he
is compelled to testify or produce evidence, and no
testimony concerning said crimes shall be used as
evidence against the witness in any Court of the
Commonwealth, except in a prosecution for perjury or
6 Following the return of indictments against Pessoa, the
district attorney entered a nolle prosequi on the charges
against the February 2019 arrestee.
6
contempt committed while giving testimony or producing
evidence under compulsion of this order."
The grant of immunity compelled the petitioners to "give
testimony and produce evidence" before a "jury in these
proceedings." During interviews prior to their grand jury
testimony and during their grand jury testimony, the petitioners
admitted that their use-of-force reports were false.
On August 13, 2019, the district attorney's office filed
two motions in the Superior Court. A Superior Court judge
ordered both motions impounded, and they were not served on the
petitioners. In the first motion, the district attorney sought
authority to disclose information from a petitioner's grand jury
testimony to defense counsel for criminal defendants in cases
unrelated to the prosecution of Pessoa where the petitioner was
"a potential witness," asserting that it was obligated to make
such disclosures under Brady v. Maryland, 373 U.S. 83, 87-88
(1963) and Giglio v. United States, 405 U.S. 150, 155 (1972)
(Brady disclosure motion). Attached to the motion was a
proposed discovery letter that identified the relevant
petitioners and stated that each is a police officer with the
Fall River police department who "has been given a grant of
immunity as part of the Pessoa grand jury investigation," and
7
who "admitted to filing a false police report" as part of that
case.7
In the second motion, the district attorney sought an order
authorizing the disclosure of information concerning the
petitioners' grand jury testimony to their municipal employer,
the Fall River police department (employer disclosure motion).
Attached to the employer disclosure motion was a proposed letter
to the Fall River police chief, setting forth the same
statements in the proposed Brady disclosure letter.
On or about August 16, 2019, counsel for the petitioners
learned that the district attorney's office had filed an
7 The proposed discovery letter stated in relevant part:
"Please be advised of the following potentially exculpatory
discovery from an unrelated criminal proceeding:
"1. Michael Pessoa, a Fall River police officer, was
indicted on June 27, 2019 with a 15-count indictment, numbered
1973CR00182. The indictment includes allegations that he beat
arrestees and that he filed false police reports.
"2. [PETITIONER 1], a Fall River police officer, has been
given a grant of immunity as part of the Pessoa grand jury
investigation. [PETITIONER 1] admitted to filing a false police
report.
"3. [PETITIONER 2], a Fall River police officer, has been
given a grant of immunity as part of the Pessoa grand jury
investigation. [PETITIONER 2] admitted to filing a false police
report.
". . .
"This disclosure is not for public dissemination."
8
internal affairs complaint against the petitioners with the Fall
River police department, and learned of the employer disclosure
motion. Shortly thereafter, the petitioners filed a motion in
the Superior Court seeking standing to oppose the employer
disclosure motion. Petitioners subsequently learned of, and
sought to object to, the Brady disclosure motion.
The Superior Court judge allowed the petitioners to oppose
both motions.8 After oral argument, the judge allowed the
district attorney's motion to make the Brady disclosure but
denied the employer disclosure motion. In allowing the Brady
disclosure motion, the judge concluded that the proposed
discovery letter "is potentially exculpatory evidence as it may
tend to negate the guilt of criminal defendants against whom the
officers may be witnesses at trial." The judge ordered the
Commonwealth to "notify by means of the proposed discovery
letter, all defendants of cases not yet tried and cases now
disposed that were tried after the date of the filing of the
false police reports, for which the identified officer either
prepared a report or is expected to be a witness at trial."
In denying the employer disclosure motion, the judge
concluded that the Commonwealth had not "shown that the need for
8 The judge also ordered impounded all filings related to
the two motions, as well as the recording of the argument on the
motions.
9
disclosure outweigh[ed] the need for continued secrecy." The
judge noted:
"It is apparent from the public nature of the
indictments against Michael Pessoa, the public
statements of the Fall River [p]olice [c]hief, and the
media coverage on the topic, that the department has
substantial information on which to commence
disciplinary proceedings, and that the proposed
statement the Commonwealth seeks to disclose to the
department will provide no additional material
information."
The petitioners sought and were granted a stay with respect
to the allowance of the Brady disclosure motion, enabling them
to seek relief from a single justice of this court pursuant to
G. L. c. 211, § 3. The Commonwealth did not petition for relief
from the denial of the employer disclosure motion. After a
hearing, the single justice reserved and reported the case to
the full court. The single justice directed the parties to
address the following questions: (1) whether there is a Brady
obligation in these circumstances to disclose information to
unrelated defendants; (2) whether, if there is a Brady
obligation, the Commonwealth may disclose the information even
if it was obtained as a result of a judicial order of immunity
or in the course of the petitioners' grand jury testimony; (3)
whether, if there is a Brady obligation, the Commonwealth must
seek prior judicial approval for disclosure; (4) whether the
process by which the Commonwealth obtained the petitioners'
testimony precludes disclosing information to the petitioners'
10
municipal employer -- the police department -- concerning the
petitioners' invocation of the right against self-incrimination,
grant of immunity, and admitted conduct, for purposes of
administrative disciplinary proceedings, employee training, or
otherwise; and (5) whether, if disclosure to the police
department is permissible, the Commonwealth must seek prior
judicial approval.
Discussion. 1. Disclosure of Brady information to other
defendants. Under the due process clause of the Fourteenth
Amendment to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights, a prosecutor must disclose
exculpatory information to a defendant that is material either
to guilt or punishment. See Brady, 373 U.S. at 87; Committee
for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700, 731
(2018) (CPCS). "When the 'reliability of a given witness may
well be determinative of guilt or innocence,' nondisclosure of
evidence affecting credibility falls within this general rule."
Giglio, 405 U.S. at 154, quoting Napue v. Illinois, 360 U.S.
264, 269 (1959). See Commonwealth v. Hill, 432 Mass. 704, 715
(2000), quoting Commonwealth v. Collins, 386 Mass. 1, 8 (1982)
("Evidence tending to impeach the credibility of a key
prosecution witness is clearly exculpatory"). Therefore, in the
parlance of the criminal justice bar, Giglio information is
Brady information: "[t]he Brady obligation comprehends evidence
11
which provides some significant aid to the defendant's case,
whether it furnishes corroboration of the defendant's story,
calls into question a material, although not indispensable,
element of the prosecution's version of the events, or
challenges the credibility of a key prosecution witness."
Commonwealth v. Ellison, 376 Mass. 1, 22 (1978).
Apart from the constitutional obligations of disclosure,
our rules of criminal procedure require a prosecutor, as part of
automatic discovery, to disclose to a defendant "[a]ny facts of
an exculpatory nature."9 Mass. R. Crim. P. 14 (a) (1) (A) (iii),
as amended, 444 Mass. 1501 (2005). And our rules of
professional conduct require prosecutors to "make timely
disclosure to the defense of all evidence or information known
to the prosecutor that tends to negate the guilt of the accused
9 In Committee for Pub. Counsel Servs. v. Attorney Gen.
(CPCS), we noted that while Mass. R. Crim. P. 14 "envisions a
broad disclosure requirement for exculpatory facts, the rule
explicitly identifies only a few specific categories of
potentially exculpatory information that a prosecutor must
disclose." CPCS, 480 Mass. 700, 732 (2018), citing Mass. R.
Crim. P. 14 (a) (1) (A) (i), (viii), (ix) ("Commonwealth must
disclose defendant's statements, 'promises, rewards or
inducements' given to prosecution witnesses, and statements made
during and about identification procedures"). To provide more
detailed guidance to prosecutors, we asked the Supreme Judicial
Court's standing advisory committee on the rules of criminal
procedure "to draft a proposed Brady checklist to clarify the
definition of exculpatory evidence" and establish "a more
thorough baseline of the most likely sources and types of
exculpatory information for prosecutors to consider." Id. Rule
14 has not yet been amended to include a Brady checklist.
12
or mitigates the offense." Mass. R. Prof. C. 3.8 (d), as
appearing in 473 Mass. 1301 (2016). See also Mass. R. Prof. C.
3.4 (a), as appearing in 471 Mass. 1425 (2015) (lawyer
prohibited from concealing evidence or unlawfully obstructing
another party's access to evidence); Mass. R. Prof. C. 3.8 (g)
(prosecutor may not avoid pursuit of evidence that may aid
accused); Mass. R. Prof. C. 3.8 (i) (prosecutor's obligation to
disclose postconviction exculpatory evidence).
The petitioners, in essence, make four arguments in support
of their position that the district attorney should be barred
from making the requested disclosure to criminal defendants in
cases where a petitioner either prepared a report or is expected
to be a witness at trial: (1) that the information falls
outside the scope of a prosecutor's Brady obligation; (2) that
the information would not be admissible at trial and therefore
is not exculpatory; (3) that disclosure would violate each
petitioner's immunity order; and (4) that disclosure is barred
by the rules governing grand jury secrecy. We address each
argument in turn.
a. Scope of a prosecutor's Brady obligation. The
petitioners contend that the information the district attorney
seeks to disclose is not Brady information because the failure
to disclose this information would not require a new trial if
the defendant were to be convicted. This argument incorrectly
13
equates a prosecutor's duty to disclose exculpatory evidence
with the standard applied in determining whether the
prosecutor's failure to disclose exculpatory evidence is so
prejudicial that it requires a new trial.
Under Federal constitutional law, a prosecutor's failure to
disclose exculpatory information is not a breach of a
prosecutor's constitutional duty to disclose unless the
"omission is of sufficient significance to result in the denial
of the defendant's right to a fair trial." United States v.
Bagley, 473 U.S. 667, 676 (1985), quoting United States v.
Agurs, 427 U.S. 97, 108 (1976). Under the standard of
materiality applied by the Supreme Court, "[t]he evidence is
material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different." Bagley, supra at 682.
"A 'reasonable probability' is a probability sufficient to
undermine confidence in the outcome." Id. This materiality
standard applies regardless of whether the undisclosed
information was requested by the defendant, either generally or
specifically. See id. at 682-83.
This court declined to adopt the Bagley "one size fits all"
test as a matter of State constitutional law and instead
"adhered to the Agurs test for determining the consequences of a
prosecution's failure to comply with a specific request for
14
exculpatory evidence," which was the test the Supreme Court had
supplanted in Bagley. Commonwealth v. Tucceri, 412 Mass. 401,
406 (1992), citing Commonwealth v. Gallarelli, 399 Mass. 17, 21
n.5 (1987). Consequently, under our Declaration of Rights,
where the defendant had made a specific request for the
information, "a new trial would be required if the undisclosed
evidence 'might have affected the outcome of the trial.'"
Tucceri, supra at 405, quoting Agurs, 427 U.S. at 104. Where
there was no request for the information, or only a general
request was made, "a new trial would be required only if the
undisclosed evidence 'create[d] a reasonable doubt which did not
otherwise exist.'" Tucceri, supra, quoting Agurs, supra at 112.
The petitioners contend that a prosecutor should not
disclose exculpatory information unless the prosecutor has a
constitutional duty to disclose, and that duty is triggered only
where the information would create a reasonable doubt which
would not otherwise exist. See Tucceri, 412 Mass. at 405. This
argument fails for two reasons.
First, prosecutors have more than a constitutional duty to
disclose exculpatory information; they also have a broad duty
under Mass. R. Crim. P. 14 (a)(1)(iii) to disclose "[a]ny facts
of an exculpatory nature." This duty is not limited to
information so important that its disclosure would create a
reasonable doubt that otherwise would not exist; it includes all
15
information that would "tend to" indicate that the defendant
might not be guilty or "tend to" show that a lesser conviction
or sentence would be appropriate. See CPCS, 480 Mass. at 731,
quoting Brady, 373 U.S. at 87 (prosecutor may not withhold
evidence that "would tend to exculpate [a defendant] or reduce
the penalty"); Collins, 470 Mass. at 267 ("The Commonwealth is
required to disclose exculpatory evidence to the defendant,
including, as is relevant here, evidence that would tend to
impeach the credibility of a key prosecution witness").
Therefore, in Massachusetts, when we speak of a prosecutor's
Brady obligation, we mean not only the constitutional obligation
to disclose exculpatory information but also the broad
obligation under our rules to disclose any facts that would tend
to exculpate the defendant or tend to diminish his or her
culpability.
Second, even if prosecutors had only their constitutional
obligation to disclose, and not the broad duty under our rules,
we would not want prosecutors to withhold exculpatory
information if they thought they could do so without crossing
the line into a violation of the defendant's right to a fair
trial. It is true that the constitutional duty of a prosecutor
to disclose derives from the defendant's due process right to a
fair trial. See Agurs, 427 U.S. at 108 ("unless the omission
deprived the defendant of a fair trial, there was no
16
constitutional violation requiring that the verdict be set
aside; and absent a constitutional violation, there was no
breach of the prosecutor's constitutional duty to disclose").
Therefore, a finding regarding a breach of that obligation looks
backward in time, at whether the failure to disclose deprived
the defendant of a fair trial. But a prosecutor who is deciding
whether to disclose exculpatory information must look forward in
time, to a trial that has yet to occur, where even an
experienced prosecutor may be unsure about the defenses that the
defendant will offer or that will emerge from the evidence. As
the Supreme Court declared in Agurs, supra:
"[T]here is a significant practical difference between the
pretrial decision of the prosecutor and the post-trial
decision of the judge. Because we are dealing with an
inevitably imprecise standard, and because the significance
of an item of evidence can seldom be predicted accurately
until the entire record is complete, the prudent prosecutor
will resolve doubtful questions in favor of disclosure."
See Kyles v. Whitley, 514 U.S. 419, 439 (1995) ("a prosecutor
anxious about tacking too close to the wind will disclose a
favorable piece of evidence. . . . This is as it should be"
[citation omitted]).
A prosecutor should not attempt to determine how much
exculpatory information can be withheld without violating a
defendant's right to a fair trial. Rather, once the information
is determined to be exculpatory, it should be disclosed --
period. And where a prosecutor is uncertain whether information
17
is exculpatory, the prosecutor should err on the side of caution
and disclose it. See Commonwealth v. St. Germain, 381 Mass.
256, 262 n.10 (1980), quoting Commentary to A.B.A. Standards for
Criminal Justice, Standards Relating to Discovery and Procedure
Before Trial 2.1(d) (Approved Draft 1970) ("We reiterate[] that
'prosecuting attorneys [should] become accustomed to disclosing
all material which is even possibly exculpatory, as a
prophylactic against reversible error and in order to save court
time arguing about it'").10
b. Consequence of admissibility of impeachment information
on Brady obligation. The petitioners also argue that
prosecutors have no obligation to disclose the petitioners'
false statements because their prior misconduct would not be
admissible in evidence at trial in any unrelated criminal case.
We disagree.
The petitioners are correct that, in the absence of a
conviction, "[i]n general, specific instances of misconduct
showing the witness to be untruthful are not admissible for the
purpose of attacking or supporting the witness's credibility."
10Where a prosecutor recognizes information to be
exculpatory, but is unsure whether it should be disclosed, "due
to a concern regarding privilege or work product, or for any
other reason, the prosecutor must file a motion for a protective
order and must present the information for a judge to review in
camera." CPCS, 480 Mass. at 733, citing Mass. R. Crim. P. 14
(a) (6).
18
Mass. G. Evid. § 608(b) (2020), citing Commonwealth v. Bregoli,
431 Mass. 265, 275 (2000), and Commonwealth v. LaVelle, 414
Mass. 146, 151 (1993). See Mass. G. Evid. § 609(a) (2020) ("A
party may seek to impeach the credibility of a witness by means
of the court record of the witness's prior conviction or a
certified copy"). But we have "chiseled a narrow exception" to
this general rule, "recognizing that in special circumstances
the interest of justice forbids strict application of the rule."
LaVelle, supra, citing Commonwealth v. Bohannon, 376 Mass. 90,
94 (1978), S.C., 385 Mass. 733 (1982).11
In Bohannon, 376 Mass. at 94, we declared, "[w]hen evidence
concerning a critical issue is excluded and when that evidence
might have had a significant impact on the result of the trial,
the right to present a full defense has been denied." In that
case, a critical issue at trial was the credibility of the
complainant, who testified that she did not consent to sexual
intercourse with the defendant, and the evidence that might have
11In Commonwealth v. Almonte, 465 Mass. 224, 241 (2013), we
noted that "under the Fed. R. Evid. 608(b), a party on cross-
examination of a witness may inquire into the details of prior
instances of misconduct if probative of the witness's character
for veracity." Because the benefit to the defendant in that
case "of an expanded evidentiary rule concerning impeachment on
the issue of veracity would be marginal at best," we left "to
another day the question whether we should follow the guide of
the Fed. R. Evid. 608(b), and adopt such a rule more generally."
Id. at 242. This is not the day, or the case, where we need to
address that question.
19
had a significant impact on the result of the trial were
hospital records that revealed that "the complainant had made a
number of unsubstantiated, and apparently false, accusations of
rape." Id. at 93. We concluded that it was reversible error
for the judge to have prevented the defendant from impeaching
the victim-witness with this evidence of prior false
accusations. See id. at 95.
A judge has the discretion to decide whether the
credibility of a police officer is a critical issue at trial and
whether the officer's prior false statements in a separate
matter might have a significant impact on the result of the
trial, such that the prior misconduct should be admitted in the
interest of justice. See Commonwealth v. Lopes, 478 Mass. 593,
606 (2018). In Lopes, we concluded that the judge did not abuse
his discretion by preventing the defendant from impeaching a
police officer who was one of the Commonwealth's key
eyewitnesses in a homicide case "with information that the
Boston police department had suspended [the police officer] five
years earlier for, among other things, lying in an internal
affairs investigation on a personal matter." Id. We noted that
the alleged conduct was "not material" to the homicide
investigation where it took place five years before the murder,
"did not result in a criminal conviction or even a criminal
20
charge," and was "not related to how [the officer] conducted
police investigations." Id.
Our delineation of these factors suggests that a judge, in
deciding whether to allow a police officer witness in the
interest of justice to be impeached with prior misconduct, may
consider the age of the prior misconduct, the strength of the
evidence of the prior misconduct and the simplicity of
establishing it, and whether the prior misconduct is probative
of how the officer conducts police investigations.12 As to the
age of the misconduct, if it happened so long ago that it would
not be admissible for impeachment had it resulted in a criminal
conviction, see Mass. G. Evid. § 609, it would not likely be
admissible in the absence of a conviction. As to the strength
of the evidence of the prior misconduct and the simplicity of
establishing it, a judge may consider whether admitting evidence
of the misconduct will result in a trial within a trial to
resolve whether it happened or how it happened. As to whether
the prior misconduct is probative of how the officer conducts
police investigations, a judge may consider whether the
misconduct reflects a willingness to lie to win a conviction or
12We also note that our conclusion in Commonwealth v.
Lopes, 478 Mass. 593, 606 (2018), that the judge did not abuse
his discretion in barring such impeachment, does not mean that
it would have been an abuse of discretion for the judge to have
admitted such evidence.
21
instead involves matters that, although serious, do not bear on
the integrity of police investigations, such as taking
unauthorized sick time or inflating overtime hours. Concealing
police brutality against an arrestee, whether by the officer or
a fellow officer, or making false statements that might lead to
an unjust conviction are for law enforcement officers the
equivalent of high crimes and misdemeanors in this regard. All
of these factors suggest that the petitioners' prior false
statements might be admissible in a case where the credibility
of their testimony is a critical issue.
We do not conclude that the exculpatory information at
issue will always be or could never be admissible as impeachment
evidence in an unrelated criminal case where one of the
petitioners is a witness. All we conclude is that the
information should be disclosed to unrelated defendants so that
the trial judge may rule on its admissibility if the defendant
were to seek its admission.
Moreover, the ultimate admissibility of the information is
not determinative of the prosecutor's Brady obligation to
disclose it. Where the information, as here, demonstrates that
a potential police witness lied to conceal a fellow officer's
unlawful use of excessive force or lied about a defendant's
conduct and thereby allowed a false or inflated criminal charge
to be prosecuted, disclosing such information may cause defense
22
counsel, or his or her investigator, to probe more deeply into
the prior statements and conduct of the officer to determine
whether the officer might again have lied to conceal the
misconduct of a fellow police officer or to fabricate or
exaggerate the criminal conduct of the accused.
c. Consequence of order of immunity on Brady obligation.
The petitioners contend that, where exculpatory information is
obtained from a witness's immunized testimony, prosecutors
should not disclose the information to defendants in unrelated
cases because the orders of immunity protect immunized witnesses
from the adverse consequences that might result from such
disclosure. This argument misreads the scope of immunity
provided by the immunity order.
The Fifth Amendment states in relevant part: "No person
. . . shall be compelled in any criminal case to be a witness
against himself." Article 12 states in part: "No subject shall
be held to answer for any crimes or offense, until the same is
fully and plainly, substantially and formally, described to him;
or be compelled to accuse, or furnish evidence against himself."
As is apparent from the language of the Fifth Amendment and art.
12, a witness's right to refuse to testify before a tribunal by
invoking the privilege against self-incrimination is available
only where the witness's testimony might incriminate the witness
with respect to a crime, either by the testimony itself or by
23
evidence derived from that testimony. See Commonwealth v.
Martin, 423 Mass. 496, 502 (1996), quoting Commonwealth v.
Funches, 379 Mass. 283, 289 (1979) ("The privilege afforded not
only extends to answers that would in themselves support a
conviction . . . but likewise embraces those which would furnish
a link in the chain of evidence needed to prosecute"). A
witness may not invoke the privilege simply because the
testimony, when it becomes known, will cause the witness to be
fired from a job or injure the witness's reputation in the
community. See Pixley v. Commonwealth, 453 Mass. 827, 832
(2009), citing Martin, supra at 502-503 (circumstances for
invoking privilege "must clearly indicate a possibility of self-
incrimination").
An immunity order is sometimes referred to as a compulsion
order because it grants immunity to the witness that is
"coextensive with the scope of the privilege against self-
incrimination, and therefore is sufficient to compel testimony
over a claim of the privilege." Kastigar v. United States, 406
U.S. 441, 453 (1972). Under the Fifth Amendment, testimony may
be compelled through an order granting use immunity that
prohibits only the use, in any criminal case, of compelled
testimony and the use of any evidence directly or indirectly
derived from that compelled testimony. See id. at 453.
However, under the Massachusetts Constitution and the governing
24
statutes, G. L. c. 233, §§ 20C-20G, testimony may be compelled
only through an order granting transactional immunity that
provides "absolute immunity from subsequent prosecution based
upon any transaction, matter, or occurrence about which an
immunized witness testified or produced evidence." Attorney
Gen. v. Colleton, 387 Mass. 790, 795 (1982). See Commonwealth
v. Austin A., 450 Mass. 665, 668 (2008). The scope of
transactional immunity is set forth in G. L. c. 233, § 20G:
"A witness who has been granted immunity as provided
in section 20E shall not be prosecuted or subjected to
any penalty or forfeiture for or on account of any
transaction matter, or thing concerning which he is so
compelled, after having claimed his privilege against
self-incrimination, to testify or produce evidence,
nor shall testimony so compelled be used as evidence
in any criminal or civil proceeding against him in any
court of the commonwealth, except in a prosecution for
perjury or contempt committed while giving testimony
or producing evidence under compulsion, pursuant to
section 20C or 20E" (emphasis added).13
"[I]t would be difficult to imagine an immunity more complete."
Matter of a John Doe Grand Jury Investigation, 405 Mass. 125,
130 (1989), quoting Cabot v. Corcoran, 332 Mass. 44, 51 (1954).
13 The immunity orders in this case similarly stated that
the petitioners "be granted immunity from prosecution, and not
be subjected to any penalty or forfeiture with respect to the
transaction, matter or thing concerning which he is compelled to
testify or produce evidence against the witness in any Court of
the Commonwealth, except in a prosecution for perjury or
contempt committed while giving testimony or producing evidence
under compulsion of this order."
25
Under § 20G, a witness with immunity may not be criminally
prosecuted for any transaction about which the witness is
compelled to testify. Nor may the Commonwealth seek any civil
penalty or forfeiture regarding such a transaction. And apart
from the prohibition against criminal and civil prosecution
regarding matters raised during compelled testimony, the
testimony itself may not be "used as evidence in any criminal or
civil proceeding against" the witness in a court of law, except
where the immunized testimony itself is the subject of a
prosecution against the witness for perjury or contempt of
court. See G. L. c. 233, § 20G.
If an immunized witness testifies at trial, however, the
testimony is as public as the trial itself, and nothing in the
order of immunity protects the witness from other adverse
consequences that may arise from the content of the witness's
testimony. If the witness, in the course of providing immunized
testimony, admits that he lied, cheated, or killed, the witness
may not be prosecuted for that illegal conduct, criminally or
civilly; but nothing in the immunity statute or order protects
the witness from being fired by his employer or shunned by his
community because of the misconduct he revealed. And with
respect to all persons other than the witness, immunized
testimony is no different from any other testimony, except that
it was compelled.
26
The petitioners argue that the disclosure of their
testimony would "penalize them for invoking their privilege
against self-incrimination" in violation of their orders of
immunity and the statute. But disclosure is not the penalty
from which they are protected by the immunity orders; the
petitioners were granted immunity from prosecution, not from
publication or disclosure. Therefore, the fact that testimony
was compelled is irrelevant to the prosecutor's Brady obligation
to provide exculpatory information. An immunized witness, like
others who are not immunized, may prefer that the testimony not
be disseminated by the prosecutor, especially if it would reveal
the witness's dirty deeds, but that preference does not affect
whether the information is exculpatory or whether it should be
furnished to other defendants. Once disclosed, the immunized
testimony may be used to impeach the immunized witness, provided
that the testimony is not being used against the witness in a
criminal or civil prosecution other than for perjury. In sum, a
prosecutor's obligation to disclose exculpatory information is
the same for immunized testimony as for all other testimony.
There is no higher Brady standard applied for a prosecutor to
disclose immunized testimony.
d. Consequence of grand jury secrecy on Brady obligation.
Finally, the petitioners argue that, "[g]iven that Brady does
not compel the disclosure of the information, the Commonwealth
27
should not be permitted to disclose it in light of the rule that
grand jury proceedings are to remain secret." As discussed
supra, the premise of this argument is incorrect -- a prosecutor
is required to disclose the information at issue to unrelated
defendants pursuant to the obligation to disclose exculpatory
information. The petitioners, however, present an alternative
argument -- that the Commonwealth should be required to obtain
judicial approval before making such a disclosure. We address
the alternative argument.14
It is certainly true that "[t]he requirement that grand
jury proceedings remain secret is deeply rooted in the common
law of the Commonwealth." Globe Newspaper Co. v. Police Comm'r
of Boston, 419 Mass. 852, 865 (1995), quoting WBZ-TV4 v.
District Attorney for the Suffolk Dist., 408 Mass. 595, 599
(1990). It is also true that "[s]ecrecy is of fundamental
importance to grand jury proceedings." Commonwealth v. Holley,
476 Mass. 114, 118 (2016).
"[S]everal interests are served by maintaining strict
confidentiality, 'such as protection of the grand jury
from outside influence, including influence by the
news media; protection of individuals from notoriety
and disgrace; encouragement of free disclosure of
information to the grand jury; protection of witnesses
14After the immunity order issued, the petitioners agreed
to be interviewed by the prosecutor prior to their grand jury
appearance. In view of the conclusions we draw, we need not
address whether these interviews are protected by the rules
governing grand jury secrecy.
28
from intimidation; and enhancement of free grand jury
deliberations.'"
Globe Newspaper Co., supra at 865-866, quoting Matter of a John
Doe Grand Jury Investigation, 415 Mass. 727, 729 (1993).
Under Mass. R. Crim. P. 5 (d), as appearing in 442 Mass.
1505 (2004), "[a] person performing an official function in
relation to the grand jury may not disclose matters occurring
before the grand jury except in the performance of his or her
official duties or when specifically directed to do so by the
court." A prosecutor presenting evidence at a grand jury is
certainly "performing an official function in relation to the
grand jury," so the issue presented is whether the disclosure of
exculpatory evidence to defense counsel is within the scope of
the "the performance of his or her official duties."
There can be no doubt that the use of inculpatory grand
jury testimony to prosecute a defendant in a criminal case is
within the scope of the performance of a prosecutor's official
duties. The disclosure of exculpatory grand jury testimony to
defense counsel is equally within the scope of the performance
of a prosecutor's official duties. For a prosecutor, disclosure
of information that may permit a defendant to prove his or her
innocence should be equally as important as securing the
conviction of a guilty party:
"The [prosecutor] is the representative not of an ordinary
party to a controversy, but of a sovereignty whose
29
obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore,
in a criminal prosecution is not that it shall win a case,
but that justice shall be done. As such, he [or she] is in
a peculiar and very definite sense the servant of the law,
the twofold aim of which is that guilt shall not escape or
innocence suffer."
Berger v. United States, 295 U.S. 78, 88 (1935). See Jackson,
The Federal Prosecutor, reprinted in 24 J. Am. Jud. Soc'y 18, 20
(1940) ("A sensitiveness to fair play and sportsmanship is
perhaps the best protection against the abuse of power, and the
citizen's safety lies in the prosecutor who tempers zeal with
human kindness, who seeks truth and not victims, who serves the
law and not factional purposes, and who approaches his [or her]
task with humility").15
We therefore conclude that the disclosure to defense
counsel of exculpatory information arising from a grand jury
proceeding is as much a part of a prosecutor's official duty as
the presentation of inculpatory evidence at trial. Because the
disclosure of exculpatory grand jury information is within the
performance of a prosecutor's official duties under rule 5 (d),
it may be disclosed without an order of a court. A judge would
have to review the disclosure to defense counsel only if the
15United States Attorney General Robert H. Jackson
delivered this address at the Second Annual Conference of United
States Attorneys in Washington, D.C., on April 1, 1940. See
Jackson, The Federal Prosecutor, reprinted in 24 J. Am. Jud.
Soc'y 18, 18 (1940).
30
prosecutor sought a protective order limiting further
dissemination of the information.
Consequently, as to the first three issues identified by
the single justice, we conclude, as did the district attorney,
that the prosecutors here have a Brady obligation to disclose
the exculpatory information at issue to unrelated criminal
defendants in cases where a petitioner is a potential witness or
prepared a report in the criminal investigation. That
obligation remains even though that information was obtained in
grand jury testimony compelled by an immunity order. And the
district attorney may fulfill that obligation without prior
judicial approval; a judge's order is needed only for issuance
of a protective order limiting the dissemination of grand jury
information.
More broadly, we conclude that where a prosecutor
determines from information in his or her possession that a
police officer lied to conceal the unlawful use of excessive
force, whether by him- or herself or another officer, or lied
about a defendant's conduct and thereby allowed a false or
inflated criminal charge to be prosecuted, the prosecutor's
obligation to disclose exculpatory information requires that the
information be disclosed to defense counsel in any criminal case
where the officer is a potential witness or prepared a report in
the criminal investigation.
31
We note that the United States Department of Justice,
through its "Policy Regarding the Disclosure to Prosecutors of
Potential Impeachment Information Concerning Law Enforcement
Agency Witnesses," known as its "Giglio Policy," has established
a procedure whereby Federal prosecutors obtain potential
impeachment information from Federal investigative agencies,
such as the Federal Bureau of Investigation, regarding law
enforcement agents and employees who may be witnesses in the
cases they prosecute. United States Department of Justice,
Justice Manual, Tit. 9-5.100 (updated Jan. 2020) (Manual),
https://www.justice.gov/jm/jm-9-5000-issues-related-trials-and-
other-court-proceedings [https://perma.cc/NKL2-YZ2J]. According
to the policy:
"Prosecutors should have a candid conversation with
each potential investigative agency witness and/or
affiant with whom they work regarding any on-duty or
off-duty potential impeachment information, including
information that may be known to the public but that
should not in fact be the basis for impeachment in a
federal criminal court proceeding, so that prosecuting
attorneys can take appropriate action, be it producing
the material or taking steps to preclude its improper
introduction into evidence."
Id. at Tit. 9-5.100(1). In addition, each United States
Attorney's office designates a "requesting official" who may ask
an investigative agency's official to provide potential
impeachment information regarding an agency employee associated
with the case or matter being prosecuted. Id. at Tit. 9-
32
5.100(2)-(4). When a case is initiated within the United States
Attorney's office, the prosecutor responsible for the case, to
supplement the information obtained directly from the agency
employees involved in the case, may ask the office's requesting
official to obtain from the agency's designated official any
potential impeachment information regarding those agency
employees. Id. at Tit. 9-5.00(4). Potential impeachment
information may include, but is not limited to:
"i) any finding of misconduct that reflects upon the
truthfulness or possible bias of the employee,
including a finding of lack of candor during a
criminal, civil, or administrative inquiry or
proceeding;
"ii) any past or pending criminal charge brought
against the employee;
"iii) any allegation of misconduct bearing upon
truthfulness, bias, or integrity that is the subject
of a pending investigation;
"iv) prior findings by a judge that an agency employee
has testified untruthfully, made a knowing false
statement in writing, engaged in an unlawful search or
seizure, illegally obtained a confession, or engaged
in other misconduct;
"v) any misconduct finding or pending misconduct
allegation that either casts a substantial doubt upon
the accuracy of any evidence -- including witness
testimony -- that the prosecutor intends to rely on to
prove an element of any crime charged, or that might
have a significant bearing on the admissibility of
prosecution evidence . . . ;
"vi) information that may be used to suggest that the
agency employee is biased for or against a
defendant . . . ; and
33
"vii) information that reflects that the agency
employee's ability to perceive and recall truth is
impaired."
Id. at Tit. 9-5.100(c)(5).
This policy is not intended to grant any rights to
defendants and does not have the force of law. Id. at Tit. 9-
5.100 (preface). But it reflects the department's recognition
of the need for prosecutors to learn of potential impeachment
information regarding all the investigating agents and employees
participating in the cases they prosecute, so that they may
consider whether the information should be disclosed to defense
counsel under the Brady and Giglio line of cases. See id. We
do not possess the authority to require the Attorney General and
every district attorney in this Commonwealth to promulgate a
comparable policy, but we strongly recommend that they do.16
16WBUR radio recently reported that three of the eleven
district attorneys in Massachusetts maintain some form of a list
of police officers who were "flagged by prosecutors as either
having engaged in or been accused of misconduct that the
[district attorney's] office might legally need to disclose" to
defense counsel because the information is relevant to the
credibility of the officers. See WBUR News, "Few Mass. DAs Keep
Police Watch Lists. Constitutional Questions Exist For Those
Who Don't," Aug. 18, 2020, https://www.wbur.org/news
/2020/08/18/police-brady-lists-middlesex-district-attorney
[https://perma.cc/NE45-4444].
In addition, we note that prosecutive offices in a number
of other States have established policies or protocols governing
the discovery and disclosure of potential exculpatory
impeachment information regarding law enforcement witnesses.
See, e.g., Memorandum of the New Jersey Attorney General,
Disclosure of Exculpatory and Impeachment Evidence in Criminal
34
2. Disclosure of false statements to police department.
As earlier noted, the judge denied the district attorney's
motion for an order authorizing the disclosure of information
concerning the petitioners' grand jury testimony to the Fall
River police department. The judge concluded that the
department already had substantial information to commence
disciplinary proceedings and that the information the district
attorney sought to disclose would provide the department with
"no additional material information." Although the district
attorney does not challenge the judge's order, the single
justice asked the parties to address in their briefs, in
essence, whether disclosure to the police chief would have been
permissible if the police department did not already know of the
Cases, Brady and Giglio Practical Application, Investigative
Employees and Potential Giglio Material (June 18, 2019), at 5,
https://www.nj.gov/oag/dcj/policies.html [https://perma.cc/YP9W-
LY2R ] (noting that "[i]t is imperative that investigative
personnel assist with the prosecuting agency's legal duty to
review and, if necessary, disclose evidence that may impact the
credibility of potential investigative State witnesses," and
providing examples of Giglio material); Memorandum of the New
Hampshire Attorney General, The Exculpatory Evidence Protocol
and Schedule (March 21, 2017), https://www.doj.nh.gov/criminal
/documents/exculpatory-evidence-20170321.pdf [https://perma.cc
/GU6X-HUK9 ] (creating protocol for an exculpatory evidence
schedule); Washington Association of Prosecuting Attorneys,
Model Policy, Disclosure of Potential Impeachment Evidence for
Recurring Investigative or Professional Witnesses (June 19,
2013), http://waprosecutors.org/manuals/ [https://perma.cc/RHE2-
L3Q8] (model guidelines for creation and maintenance of
potential impeachment evidence lists for law enforcement
witnesses).
35
petitioners' false statements, and whether any such disclosure
would require prior judicial approval.
We generally are reluctant to address issues that are not
the subject of a live dispute, or orders that have not been
challenged by any of the parties, but we respect the single
justice's implicit recognition that guidance on these matters is
needed. We therefore will provide guidance, albeit limited to
the type of false statements at issue in this case. In
providing this guidance, we do not evaluate the merits of the
judge's decision in the case. Indeed, we address a factual
circumstance quite different from that addressed by the judge --
where the police chief, in the absence of the requested
disclosure by the district attorney, would not know that
immunized grand jury testimony revealed the misconduct of two
police officers in the department.
We have already declared, supra, that where a prosecutor
determines that a potential police witness lied to conceal a
police officer's unlawful use of excessive force, or lied about
a defendant's conduct and thereby allowed a false or inflated
criminal charge to be prosecuted, the prosecutor's obligation to
disclose exculpatory information requires that the information
be disclosed to defense counsel in any case where the officer is
a potential witness or prepared a report in the criminal
investigation. Where this disclosure must be made to defense
36
counsel, it must also be made to the police chief of the
department because the consequence of such disclosure is to
jeopardize or, at a minimum, complicate the successful
prosecution of any criminal case where the police officer played
a significant role. It would make no sense for the prosecutor
and defense counsel to possess this information, and for the
police chief to be deprived of the same information. The police
chief needs this information to determine whether to fire or
otherwise discipline the officer, place the officer on desk
duty, or take other steps to ensure the integrity of the
department and its criminal cases. Because the disclosure of
this information arises from the prosecutor's Brady obligation,
no prior judicial approval is required to make this disclosure,
even if it arises from immunized grand jury testimony.
If, however, other police misconduct is revealed through a
grand jury investigation that does not require the prosecutor
under his or her Brady obligation to disclose the misconduct to
defense counsel in any case where the officer is a potential
witness or prepared a report in the criminal investigation,
prior judicial approval should be obtained before this grand
jury information may be revealed to the officer's police chief.
See Mass. R. Crim. P. 6 (d). See also Petition of Craig v.
United States, 131 F.3d 99, 102-103 (2d Cir. 1997) (holding that
Fed. R. Crim. P. 6 [e] [3] contains permissive, not exhaustive,
37
list of reasons for release of grand jury materials, and
affirming nonexhaustive list of factors judges may consider when
evaluating "special circumstances" motions to release grand jury
materials). In the absence of a live dispute, and the facts
that would accompany such a dispute, we do not opine as to the
circumstances when, if at all, such approval should be granted.
Conclusion. The case is remanded to the county court for
entry of a judgment denying the petition under G. L. c. 211,
§ 3, thereby leaving intact the judge's order allowing the
district attorney's motion to make the Brady disclosure.
So ordered.