Witness Intimidation (268/13B)

A Serious Charge, Often Misused

The witness intimidation statute in the Commonwealth is serious, broadly written, and extraordinarily harsh.  They are also poorly understood by police, judges, prosecutors and attorneys alike.   Meanwhile, the offense is a felony, and as a general rule, you should always make the Commonwealth prove its case when you are charged with a felony.

True Witness Intimidation Cases

A true witness intimidation case is one where the defendant tells someone who knows something about a criminal offense that something bad is going to happen to them if they testify. 


In true witness intimidation cases the first issue is identity -- can the police prove who it was that was responsible for the allegedly intimidating acts?

There are two reasons that identity can be a legal issue even in cases where most people would consider it fairly easy to prove. 

Fist, the constitution and rules of evidence limit the kinds of procedures police can use to identify someone, and what can be said in court. 

Second, when people think about what the police can show, they usually are not thinking in terms of "reasonable doubt."  Even if the police are convinced about who was responsible, the Commonwealth still has to prove it, and if there is reasonable doubt, even convincing evidence is not enough.

Specific Intent to Interfere

The witness intimidation statute requires that the Commonwealth prove beyond a reasonable doubt that the intimidating actions, whatever they were, be done with the specific intent to impede obstruct delay harm punish or otherwise interfere with a criminal process or investigation.  Proving a person's intent is a particularly difficult to do, and often requires that the Commonwealth rely on "circumstantial" evidence which is often open to competing interpretations.  There might be dozens of reasons that someone says or does something, and the Commonwealth has to prove which one motivated the defendant.

Statements as Evidence of Intimidation

Moreover, where statements are involved there is often a question as to whether those statements were obtained lawfully, and whether those statements are admissible in court.  There are many very technical rules that govern what statements are admissible, and where "Miranda rights" are involved, you are entitled to a hearing on the question of whether the police scrupulously honored your constitutional rights.

False Witness Intimidation Cases (i.e. 'Obstruction of Justice' Cases)

Confused about how all this applies in your case?  That might be because police sometimes use the witness intimidation statute liberally to create leverage against a person they might otherwise only be able to charge with minor offenses. 

If the police want to get information out of that person, or if they think that person is deserving of more punishment than those minor charges carry, sometimes they charge that person with witness intimidation under an 'obstruction of justice' theory.  These cases should be fought vigorously, and I have successfully argued motions to dismiss cases where police attempts to use the broad language of the witness intimidation statute to snare people who did nothing more than tell the police they were not guilty.

No matter which of the above applies to your case, witness intimidation is a serious charge.  If you or someone you know is charged with this offense, contat me to arrange for a private consultation at no charge.

2017 Jurisdictional Limitation

On October 6, 2017, the Supreme Judicial Court issued its opinion in Commonwealth v. Muckle, holding that the witness intimidation statute can only be prosecuted in the District and Municipal Courts (as opposed to the Superior Court), in cases where the alleged victim is a "witness or juror."  The SJC in Muckle ruled that where the alleged victim falls into any of the numerous other categories of persons, the prosecutor can only proceed by indictment, which is a much more involved procedure.  The categories of alleged victims whose cases can now only be prosecuted by indictment include "police office," "judge," "grand juror," "defense attorney," "prosecutor," "clerk," "court officer," "probation officer," and the most ambiguous of all, any person "furthering," "attending" or who has "made known his intention to attend" a trial or an investgiation.

The immediate result of Muckle will likely be a wave of dismissals of witness intimidation cases, followed by a slight increase of the number of indictments agaisnt people for whom the witness intimidation charge is the only viable charge; but on balance the Muckle case will probably deter the worst abuses of the statute where it is used to overcharge otherwise fairly innocuous conduct.

Of course, the legislature could always change this result by changing the law, but one hopes that if that is in the offing, the legislature will also reconsider the impossibly vague language it used to define the fairly significant felony charge of witness intimidation in the future.


See: G.L. c. 268 s. 13B; Miranda; Reasonable Doubt