What is witness identification?

Is it illegal to intimidate a witness?

Yes. A person who is threatens, attempts to physically harm, or harasses a witness can be charged with Witness Intimidation under M.G.L. c. 268, § 13B. Conviction could result in 10 years imprisonment or a fine between $1000 and $5000.

What does the government have to show to prove someone guilty of witness intimidation?

In order to prove a defendant guilty of the offense of intimidation, the Commonwealth must above all prove the following three elements of the offense beyond a reasonable doubt:

  1. That the defendant willfully, either directly or indirectly:
  • Threatened
  • Attempted or caused:
    • Physical injury to
    • Emotional injury to
    • Economic injury to
    • Property damage to
  • Conveyed a:
    • Gift
    • Offer
    • Promise

…of anything of value to:

  • Mislead
  • Intimidated
  • Harassed another person
  1. That the other person was:
  • A witness
  • A potential witness
  • A person who was aware of information related to a violation of:
    • A criminal statute
    • Conditions of probation
    • Parole terms
    • Conditions of bail
  • A person who was aware of records related to a violation of:
    • A criminal statute
    • Conditions of probation
    • Parole terms
    • Conditions of bail
  • A person who was aware of documents related to a violation of:
    • A criminal statute
    • Conditions of probation
    • Parole terms
    • Conditions of bail
  • A person who was aware of objects related to a violation of:
    • A criminal statute
    • Conditions of probation
    • Parole terms
    • Conditions of bail
  • A judge
  • A juror
  • A grand juror
  • An attorney
  • A police officer
  • A federal agent
  • An investigator
  • A clerk
  • A court officer
  • A probation officer
  • A parole officer
  • A person who is/was attending:
    • A criminal proceeding of any type
    • A civil proceeding of any type
    • A grand jury proceeding
    • A juvenile proceeding
  • A person who made known an intention to attend:
    • A criminal proceeding of any type
    • A civil proceeding of any type
    • A grand jury proceeding
    • A juvenile proceeding

Other Scenario

OR IF THE ALLEGED ACT WAS COMMITTED ON OR AFTER April 13, 2018 (ONE OR MORE):

  • A court interpreter
  • A victim witness advocate
  • A correction officer
  • A court reporter
  • A court interpreter
  • A person who is/was aware of:
    • Information
    • Records
    • Documents
  • Objects

…that relate to a violation of a court order

  • A family member of a person described in the above

OR IF THE ALLEGED ACT WAS COMMITTED BEFORE April 13, 2018:

  • A person who was furthering:
    • A criminal proceeding of any type
    • A civil proceeding of any type

…such as a grand jury proceeding or a juvenile proceeding

  1. That the defendant did so with the specific intent to:
  • Impede
  • Obstruct
  • Delay
  • Prevent
  • Otherwise interfere

…EITHER:

  • A criminal investigation at any stage
  • A criminal proceeding of any type
  • A civil proceeding of any type

…such as a grand jury proceeding or a juvenile proceeding

OR IF THE ALLEGED ACT WAS COMMITTED ON OR AFTER April 13, 2018:

That the defendant did so with the specific intent to:

  • Punish
  • Harm
  • Otherwise retaliate

…against ANY of the types of individuals previously defined, or such person’s family member, for participating in:

  • A criminal investigation at any stage
  • A criminal proceeding of any type
  • A civil proceeding of any type

…such as a grand jury proceeding or a juvenile proceeding

(THIRD PART OF THE OFFENSE WHEN RECKLESS CONDUCT IS ALLEGED)

Further, the defendant acted in reckless disregard that his or her conduct may:

  • Impede
  • Obstruct
  • Delay
  • Prevent
  • Otherwise interfere

…with a:

  • Criminal investigation at any stage
  • Criminal proceeding of any type
  • Civil proceeding of any type

…such as a grand jury proceeding or a juvenile proceeding

Note also that an attempt to intimidate does NOT need to be successful to satisfy the sub-element of the first element’s attempt requirement.

In one case, for example, the courts ruled it did NOT matter that the witness had already recanted (i.e. took back) her testimony against the defendant before receiving his threatening phone calls.

Also note, that with a criminal proceeding, a trial does NOT necessarily end when the verdict is announced. As an example, the courts ruled in one case that when a show cause hearing (i.e. a post-trial hearing in order to get a party involved not following a court order to do so) was held and the application was either allowed or no decision had yet been announced, the proceeding was still ongoing.

What other times during the legal process can witness intimidation occur?

Additionally, under the offense of intimidation, the following additional types of offenses—in addition to criminal proceedings of any type and civil proceedings of any type—are referenced in the statute:

  • Grand jury proceedings
  • Dangerousness hearing
  • Motion hearing
  • Trial
  • Any type of parole hearing
  • Parole violation proceeding
  • Probation violation proceeding
  • Administrative hearing
  • Probate or family court proceeding
  • Juvenile proceeding
  • Housing proceeding
  • Land proceeding
  • Clerk’s hearing
  • Court-ordered mediation

Did I need to specifically intend on causing intimidation?

Above all, to prove the third element of the offense of intimidation, the Commonwealth must prove that the defendant acted with specific intent.

In other words, the Commonwealth must prove the purpose or objective of any behavior of the defendant. Obviously, it is impossible to look directly into the defendant’s mind, but in our everyday affairs, people often decide from the actions of others what their state of mind is.

It is also the duty of jurors to examine the defendant’s actions and words, and all of the surrounding circumstances, to help determine what his or her intent was at the time of the incident in question.

If I am reckless, am I still intimidating a witness?

Moreover, to prove the third element of the offense of intimidation, the Commonwealth must probe that the defendant acted negligently—that is, acted in a way that a reasonably careful person would NOT.

It is also the burden of the Commonwealth to prove that the defendant’s actions went beyond mere negligence and amounted to recklessness.

Additionally, the defendant is legally considered to have acted recklessly if he or she knew, or should have known, that such actions were very likely to:

  • Impede
  • Obstruct
  • Delay
  • Prevent
  • Otherwise interfere

…with EITHER a:

  • Criminal investigation at any stage
  • Criminal proceeding of any type
  • Civil proceeding of any type

…such as a grand jury proceeding or juvenile proceeding, but he or she ran that risk and went ahead anyway.

Also note that it is NOT necessary that he or she intended to interfere with the proceeding in question. Moreover, if the defendant actually realized in advance that his or her conduct was very likely to interfere with the proceeding and decided to run that risk, such conduct would legally be considered reckless.

However, even if the defendant was NOT conscious of the result that was inherent in such conduct, it is still reckless conduct if a reasonable person, under the circumstances as they were known to the defendant, would have recognized that such actions were very likely to interfere with the proceeding.

What is an investigator?

Moreover, in legal language, an “investigator” is defined under Commonwealth law as an individual or group of individuals lawfully authorized by:

  • A department of:
    • The federal government
    • The Commonwealth
  • An agency of:
    • The federal government
    • The Commonwealth
  • Any political subdivision of:
    • The federal government
    • The Commonwealth (e.g. city, town)

…to:

  • Conduct
  • Engage in

…a(an):

  • Investigation of
  • Prosecution for
  • Defense of

…an alleged violation of the law in the course of his or her official duties

Is harassment intimidation?

Moreover, to means to engage in any act directed at:

  • A specific person
  • A group of persons

…which act seriously:

  • Alarms
  • Annoys

…such person or group of persons and would cause a reasonable person or group of persons to suffer substantial emotional distress.

Additionally photographing the victim’s family near the victim’s home on the day of a court hearing is sufficient for the jury to infer intent to intimidate.

Commonwealth v. Potter(1995)

Intent to intimidate is inferable from the defendant’s bizarre telephone call during a stalking trial, although its content was similar to earlier calls.

Note also, that it is NOT required that the defendant specifically articulated a warning against speaking to the police or another criminal investigator.

Also note that a fact finder may evaluate the circumstances in which a statement was made, including its timing, to determine whether the defendant in fact intended to intimidate the victim.

If a witness is not called to testify, can they still be intimidated?

YES, the intimidation statute is applicable to any potential witness, whether or not he or she is actually called to testify. It is also applicable to anyone who has any relevant and material information, whether or not it relates directly to an essential element of the crime.

Is evidence of threatened harm and punishment alone intimidation?

NO, the courts have further ruled that the terms “harm” and “punishment” are ambiguous and may not support a conviction for intimidation.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A INTIMIDATION AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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