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.
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 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]
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 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 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 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
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
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' 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 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 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 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 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 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 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 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." 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 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 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 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 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 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 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).
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.
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 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 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 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
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.
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.
9-5.100(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
"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]
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 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 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, 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.
footnotes
[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.
[2] One of the petitioners wrote: "Subject was non-compliant, and
threatened to punch Officers. He then
refused to comply 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.
[6] Following the return of indictments
against Pessoa, the district attorney entered a nolle prosequi on the charges
against the February 2019 arrestee.
[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] The judge also ordered impounded all
filings related to the two motions, as well as the recording of the argument on
the motions.
[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.
[10] Where 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).
[11] In 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.
[12] We 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.
[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."
[14] After 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.
[15] United 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).
[16] WBUR 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 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).