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MA SJC Leaves Open Judge’s Granting Immunity. One Day…

The Massachusetts Supreme Judicial Court recently considered a defendant’s challenge that his second degree murder conviction should be overturned because his constitutional rights were violated when the trial judge refused to grant immunity to potential defense witnesses. In the case of Commonwealth v. Brewer, although the SJC affirmed the defendant’s conviction, the court left open the issue of defendant’s, as opposed to only the government, having a means to offer immunity to potential witnesses.

In this case, the victim had been shot after leaving a party, though the evidence suggested that he was not the intended target of the shooting. The government called three witnesses who claimed the defendant was the shooter, one of whom was granted immunity in exchange for his testimony. The defense, however, attacked these witnesses’ credibility and asserted that one of these three witnesses was actually the shooter.

After the prosecutor rested, the defendant requested to call two defense witnesses, both of whom had asserted their privilege against self-incrimination. Any witness who is found to have a 5th Amendment Privilege against self-incrimination cannot be compelled to testify, unless the government grants that witness immunity and insulates him from prosecution against anything that may result from his compelled testify. Typically, where the government wants the witness to testify, they will grant the witness immunity, thereby nullifying the privilege. In other words, the government gets what they want – the witness to testify as they expect them to in order to help their case. On the flip side, however, the defendant has no such power to unilaterally grant immunity to witnesses, so there is an argument that the government has an ‘upper hand’ in situations where a necessary witness could offer helpful information and can overcome the privilege and compel the witness to testify.

Given the privilege, the defendant was not able to compel their testimony and therefore requested the judge that they be granted immunity and be forced to testify. The judge refused and the SJC unfortunately affirmed his decision.

The Massachusetts Supreme Judicial Court left open, however, that there could be instances where a judge could properly grant immunity to a defense witness, essentially acknowledging the defendant’s argument that a prosecutor’s selective grant of immunity could deprive a defendant the possibility of presenting exculpatory evidence from a witness who may likewise hold a privilege against self-incrimination.

The SJC conceded that a witness’ assertion of his right against self-incrimination could very likely affect a defendant’s ability to present an effective defense, but that a defendant’s constitutional rights to compel witness testimony do not necessarily override that right, nor do they mandate a judge to grant immunity ‘as a matter of course’.

The court did leave, however, “open the possibility” that unique circumstances could grant a limited form of immunity to a defense witness, they stated that this was not such a case. The decision also left unclear what, specifically, circumstances would warrant a trial judge to grant immunity to a defense witness who hold a 5th amendment privilege against self-incrimination.

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