Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

ATTORNEY SAM’S TAKE ON MASSACHUSETTS INVOLUNTARY GOVERNMENT TESTIMONY (PART TWO)

The Boston Criminal Lawyer Blog has been discussing the plight of witnesses in the Massachusetts criminal justice system. When we left off, the question came up about why, after simply being a witness, you may have to wait a long time and spend thousands of dollars before the “truth” came out.

The reason is that if you are not forthcoming as a witness the way the government wants you to…even if it involves matters in which you have no responsibility (unlike the cases of child sexual assault), you could end up a criminal defendant in need of experienced legal counsel.

We have discussed many times the overly-general definition of the Massachusetts crime of Intimidating a Witness. It includes lying to a police officer in the course of an investigation.

Clearly, the definition of “intimidation” differs here from one’s ordinary experience and so many people are not only unaware of it, but would never suspect it to exist. yet, it is not only a crime, it is a felony.

“But, Sam, why should someone be able to lie to the police?”

Well, let’s not “should” all over ourselves here for a minute and look at the facts. The fact is that police officers, during the course of a criminal investigation are not only allowed to lie to whomever they question…it is often encouraged and referred to as “good police work”. Officers are trained in this area. Typical citizens are not.

So, we are dealing with a situation in which, if a person is forced to give a statement to a police officer (whether or not that person is a suspect), and that person has some reason to not want to cooperate, they may have the “right” not to talk, but they will likely be punished for it. In the eyes of the Commonwealth, they not only must tell the complete truth or risk being charged with a felony.

“But, they should not lie.”

How do we know that they are? It is assumed they are lying simply because of the “truth” the detective on the case has decided must be the case. Clearly, if the original theory of the officer is wrong…what they consider to be the truth is wrong. This means that if they are wrong, and the witness gives truthful statements, the statement is likely to be considered a lie.

The bottom line is that the witness in such a case faces the choice of choosing between felony charges or changing the testimony to fit the conclusion of law enforcement.

Yes, that may well include committing perjury

“Are there any particular reasons, other than that that a person might not want to give the police a truthful statement?”

Sure there are. One that comes to mind quickly is fear. Perhaps the potential witness fears the suspect and/or the suspect’s friends. Perhaps retribution is a real threat.

“Well, don’t officers tell them that their name will be kept out of it?”

Often. But perhaps these potentential witnesses know the reality of the situation. The police cannot and do not always protect witnesses. Further, the promise that their name will never be released is usually an absolute lie. If the witness is needed for trial, you may be sure, except in very unusual circumstances, the prosecution will compell that witness to testify at trial. Further, the names are likely to appear in police reports, Grand Jury minutes etc. After all, unless the defense is able to know who these witnesses are, how can they fully investigate the matter and prepare for trial?

Now, some prosecutors will tell you that that would be fine. After all, why should you give the defendant all this information to use to screw up the prosecution witness and thwart the truth from coming out?

I saw this point of view, and experienced it, first-hand when I was a prosecutor in New York! In fact…I was trained to think that way and I thought that way.

But, then, I left the office of the district attorney and learned something very startling. Not everybody charged with a crime is guilty! Therefore, by not allowing the defense to fully investigate its case is not protecting the goal of seeking the truth…it tends to work against it.

So, hiding the witness’ identity is not always possible. The point is that the reluctant witness has reason to fear and knows it. Still, the witness sits between that fear and the fear that, if his/her statement is not to the government’s liking, criminal charges may be coming…whether that statement is true or untrue.

“Would a prosecutor really bring charges against a witness because the police thought the statement given was not true?”

Now, that is a funny question. If a complainant brings a charge against someone and the result is not only a “not guilty” but it is apparent from the trial testimony that said complainant is lying, you might expect there could be some prosecution against said complainant.

Not on your life.

Why? Well, clearly, the complainant’s original statment was the “truth” upon which the Commonwealth’s case was founded. So, regardless of what later happens…it has to be “true”.

However, if the perceived liar is not giving a statement law enforcement believes to be the truth at the start of the case…such charges become quite likely.

To be fair, some people will lie for less than honorable reasons. However, not everybody. Further, common sense should tell you that the first theory of the police is not always correct. Think of our hapless witness, though. He/she is telling the truth, yet is being told by the interrogator that he will be charged with a felony because he is lying.

What would you do in that situation? You know you are telling the truth. It never occurred to you to bring a lawyer with you because you were only a witness. Besides, the police told you that you did not need a lawyer.

It is not an accident that you have found yourself blindsided. It is call intimidation. It is one of the tools of law enforcement everywhere.

” ‘Intimidation’? Isn’t it what they call it if I lie to an officer during the course of an investigation?”

Yes. Funny how that works out, isn’t it?

The bottom line remains the same. The criminal justice system is a swamp with strange creatures and an undertow in it about which the typical citizen, guilty or innocent, can unknowingly find themselves in trouble. Only one piece of advice fits pretty much all situations, from a witness to a Massachusetts murder to a suspect in a sexual assault case to a defendant charged with drunk driving…consult an experienced criminal lawyer at the first possible opportunity.

In the meantime, have a great, safe and law-abiding weekend!

Next: NEXT;ITS NOT MASSACHUSETTS BULLYING, IT’S MA HAZING !`

Maybe we will even hit daily again next week…! Speaking of which, you see, Mary? You did not have to beg to get Part Two this week !

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