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Intimidation of a Witness (G.L. c. 268, § 13B)
Intimidation of a witness under G.L. c. 268, § 13B is a felony punishable by up to ten years in state prison. In a domestic violence case, the Commonwealth most often charges witness intimidation for calls, texts, or messages to the complainant after the arrest, including a request to drop the charges or to stay away from court. The statute requires the Commonwealth to prove three elements beyond a reasonable doubt.
- The defendant willfully, directly or indirectly, threatened, attempted to cause, or caused physical, emotional, or economic injury or property damage to another person. Alternatively, the defendant willfully, directly or indirectly, conveyed a gift, offer, or promise of value to another person, or misled, intimidated, or harassed another person.
- The other person was a witness or potential witness, a person with information or evidence concerning a crime or violation of a court order, or a judge, juror, lawyer, investigator, law enforcement or court official. Alternatively, the other person was attending or intending to attend a proceeding, or was a family member of a person in any of these categories.
- The defendant intended the conduct to, or acted with reckless disregard that it might, interfere with a covered criminal investigation or a criminal, civil, or administrative proceeding, or punish, harm, or retaliate against a protected person for participating in one.
Short answers to the questions that come up when the Commonwealth first brings the charge are collected in the Massachusetts witness intimidation FAQs.
A violation is a felony. The Commonwealth may charge witness intimidation as a separate offense when the underlying case involves domestic violence, an alleged violation of a 209A restraining order (abuse prevention order) or 258E harassment prevention order, or another pending investigation. The intimidation count has its own elements, evidence, and defenses.
Many cases arise from recorded jail calls, text messages, social-media posts, or contact through relatives. Other cases begin with an argument in which someone allegedly tried to prevent a call to the police. A teacher accused of pressuring a student who reported misconduct can also be charged under § 13B. The question whether the Commonwealth can prove the charge depends on the words used, their context, the identity of the recipient, and the defendant’s purpose.
Serpa Law Office defends witness-intimidation charges in the Boston Municipal Court, the District Court, and the Superior Court. The defense begins by identifying the precise statutory theory because a threat, an alleged bribe, and a misleading statement present different legal and factual questions.
What Must the Commonwealth Prove?
The first and third elements address different questions. The alleged act must be willful. Separately, the Commonwealth must prove the required purpose or reckless disregard. The Commonwealth cannot prove either element with a general claim that the defendant behaved badly.
The Commonwealth does not necessarily have to prove that the effort succeeded. Depending on the theory, the Commonwealth may not have to prove that the intended target received the statement or was frightened. The Commonwealth must still prove the charged conduct, the protected status of the target, and the required connection to an investigation or proceeding.
The Massachusetts Trial Court’s model jury instruction for G.L. c. 268, § 13B organizes these elements for a jury. The instruction must be tailored to the particular conduct and protected person alleged in the complaint or indictment.
Who Does the Statute Protect?
The current statute identifies five broad groups. One group consists of witnesses and potential witnesses. Another group includes people with information or materials related to a possible crime or an alleged violation of probation, parole, bail, or another court order.
The law also protects many participants in the justice system. The protected participants include judges and jurors, lawyers and court staff, law-enforcement officers, investigators, and probation or parole officers. A person attending, or known to intend to attend, a qualifying proceeding is protected as well.
A family member of a protected person is also covered. A charge may therefore be based on conduct directed at someone other than the anticipated witness. The Commonwealth must nevertheless prove how the person fits a statutory category and how the conduct was intended to interfere or retaliate.
What Conduct Can Violate § 13B?
Prosecutors may rely on several forms of conduct. The forms of conduct include a willful threat or an attempt to cause physical, emotional, or economic injury or property damage. The statute also applies to causing one of those injuries, conveying a gift or promise of value, and misleading, intimidating, or harassing a protected person.
The word “harass” has a specific statutory definition. The conduct must be directed at a particular person or group, seriously alarm or annoy that person or group, and be conduct that would cause a reasonable person or group to suffer substantial emotional distress. Electronic communications, messages, and other remote contact can qualify.
Indirect conduct can also be charged. A message sent through a relative, a social-media post directed at an identifiable person, or a statement made to an intermediary may become evidence. The defense must examine what was communicated, who received it, and whether the evidence proves the defendant was responsible for it.
Threats and Intimidating Conduct
An express threat is not always required. Massachusetts decisions have treated words or conduct as intimidation when, viewed in context, they would influence or instill fear in a reasonable person. Actual fear is not invariably an element. The judge or jury weighs the content and tone, the setting, the prior communications, and the relationship between the parties.
Ambiguous or angry language is not automatically witness intimidation. The Commonwealth must prove more than an unpleasant encounter. The Commonwealth must connect the conduct to the defendant’s intent, or reckless disregard, concerning a protected investigation or proceeding.
Offers, Gifts, and Promises of Value
A prosecution may allege that the defendant offered money or housing in exchange for silence or noncooperation. The prosecution may also rely on a claimed promise of personal assistance or a continuing relationship. The evidence must establish an actual offer or promise of something of value to the witness, not merely a discussion of what might happen if a case ends.
In Commonwealth v. Bellard, 494 Mass. 446 (2024), the Supreme Judicial Court reversed a witness-intimidation conviction arising from recorded calls between a detained defendant and his fiancée. The evidence did not prove a sufficiently concrete offer or promise of value conditioned on her noncooperation. Bellard applies directly when the prosecution treats assurances about a relationship or family life as an alleged bribe.
Misleading an Investigator
A separate theory applies when the defendant allegedly misled a police officer or investigator during a criminal investigation. A statement is not “misleading” merely because the Commonwealth considers it false. The statement must be capable of materially affecting the investigation, such as by causing investigators to pursue information they otherwise would not have pursued. Commonwealth v. Paquette, 475 Mass. 793 (2016).
A bare denial of guilt ordinarily does not satisfy the requirement of materiality. In Commonwealth v. Morse, 468 Mass. 360 (2014), the Supreme Judicial Court distinguished an exculpatory denial from an affirmative misrepresentation intended to divert an investigation. Silence, a refusal to answer questions, and an exercise of the right to remain silent require separate analysis from an allegedly false factual statement.
The Required Investigation or Proceeding
Section 13B is not limited to a trial that has already begun. Section 13B applies to criminal investigations at any stage and to grand-jury proceedings. The statute also applies to dangerousness hearings, motions, trials, and probation or parole matters.
The statute also applies to administrative hearings and many civil matters. The covered civil matters include proceedings in the Probate and Family Court, Juvenile Court, Housing Court, and Land Court. Clerk-magistrate hearings and court-ordered mediation are included as well. The law separately prohibits retaliation for a protected person’s participation in a qualifying proceeding.
Despite the statute’s breadth, the Commonwealth must identify a real qualifying matter and establish the alleged target’s connection to it. A vague claim that the defendant wanted to avoid trouble does not replace proof of the statutory nexus.
Witness Intimidation in Domestic Violence Cases
Witness intimidation is frequently added to a domestic violence complaint after an arrest. Common allegations include asking a complainant to change an account, offering something in exchange for not appearing, using a third party to make contact, or taking a telephone while someone is trying to call the police. A threat made during the incident itself is usually charged separately as threats to commit a crime, and a physical act during the same incident as assault and battery or strangulation.
Recorded calls from a jail or house of correction are a recurring source of evidence. Defense counsel should obtain and review the complete recording of each call, not only the excerpt the Commonwealth selected. A selected excerpt may sound different when the surrounding discussion is heard. Expressions of affection, regret, or a request to tell the truth do not by themselves establish every element of § 13B.
A complainant’s later decision to recant or avoid court does not prove that the defendant caused it. The Commonwealth must prove the defendant’s conduct and state of mind. The separate evidentiary questions raised by an unavailable or recanting witness are discussed in the firm’s page on recantation in a Massachusetts domestic violence case.
The underlying case may also include assault and battery on a family or household member or a civil 209A restraining order (abuse prevention order). A no-contact condition in a bail order or protective order remains enforceable unless a judge changes it. A private agreement between the parties does not authorize contact that the order prohibits.
Forfeiture by Wrongdoing Is a Separate Issue
An intimidation allegation can also affect whether the Commonwealth may use an absent witness’s prior statements. Under forfeiture by wrongdoing, a defendant may lose confrontation and hearsay objections if a judge finds that the defendant was involved in procuring the witness’s unavailability and acted with that purpose.
A forfeiture ruling is not automatic merely because § 13B has been charged. The Commonwealth must establish the required facts by a preponderance of the evidence at an evidentiary hearing. The current Massachusetts Guide to Evidence, § 804(b)(6), explains the doctrine and its requirements.
A judge who finds forfeiture may admit statements such as a 911 call or an earlier report even though the witness does not testify. The defense must therefore address both the criminal charge and the separate attempt to admit the witness’s out-of-court statements. Related issues are discussed in the firm’s pages on excited utterances and recanting witnesses and the Confrontation Clause and forfeiture by wrongdoing.
Defenses to a Massachusetts Witness-Intimidation Charge
The defense depends on the theory charged and the evidence. In a communication case, the first questions may be authorship, completeness, and context. Screenshots can omit earlier messages, recordings can be excerpted, and a statement delivered through another person may be misunderstood or attributed to the wrong speaker.
Many witness-intimidation cases depend on the defendant’s intent. A statement about the weakness of a case, an assertion of innocence, or a request that someone tell the truth is not necessarily an attempt to interfere with a proceeding. The surrounding circumstances must prove the purpose required by the statute.
Other defenses may challenge whether the target was within a protected category or whether a qualifying investigation or proceeding existed. The defense may also dispute whether an alleged promise was sufficiently definite or whether a statement could materially affect an investigation under Paquette. Protected speech does not become criminal solely because it criticizes a witness, investigator, or court official. The prosecution must prove the additional conduct and intent required by § 13B.
In a prosecution based on a call, message, or recording, the defense should obtain the complete source material and its metadata rather than rely on a summary in a police report. The defense should also examine how the evidence was obtained, preserved, authenticated, and presented.
The broader rules for admitting and objecting to digital evidence in Massachusetts criminal cases require separate analysis of screenshot authentication, message authorship, completeness, hearsay, and phone-extraction evidence.
A person who gives the police a statement about a possible intimidation charge without legal advice can create evidence for both the new charge and the underlying case. A person under investigation should ordinarily consult counsel before answering substantive questions.
Penalties and Criminal-Record Consequences
Witness intimidation is a Massachusetts felony. The ordinary maximum penalty is ten years in state prison or two and one-half years in a house of correction. The statute also authorizes a fine of $1,000 to $5,000, imprisonment, or both.
The state-prison maximum increases to twenty years when the alleged conduct concerns the investigation or prosecution of a crime punishable by life imprisonment. The same maximum applies when the proceeding concerns the parole of a person convicted of such a crime. In either situation, the statute authorizes a fine of up to $10,000.
The District Court and Boston Municipal Court have final jurisdiction over § 13B, but the Commonwealth may seek an indictment and prosecute the charge in the Superior Court.
A conviction under chapter 268 is ordinarily excluded from time-based administrative sealing under G.L. c. 276, § 100A, although the statute expressly excepts resisting arrest. Dismissals, acquittals, and expungement involve different rules. Counsel should evaluate the consequences of the particular disposition rather than assume that every record has the same result. See the firm’s overview of sealing and expunging Massachusetts criminal records.
A felony charge or conviction can also affect employment or a professional license. Education, immigration status, and firearms rights may present separate issues. The consequences depend on the person’s circumstances and the final disposition, so additional advice may be necessary.
Clerk-Magistrate Hearings and Early Defense
Some witness-intimidation allegations begin with an application for a criminal complaint rather than an arrest. At a clerk-magistrate hearing, if one is available, counsel may challenge probable cause and explain disputed communications before a formal complaint issues.
The outcome of the case can depend on evidence that defense counsel preserves early. Complete message threads and recordings may supply context that is missing from the application or police report. Call logs, social-media records, and communications with third parties may also be relevant.
Massachusetts Courts Where Attorney Serpa Handles These Cases
Attorney Serpa represents clients charged with witness intimidation in the Boston Municipal Court and in District and Superior Courts throughout Eastern and Central Massachusetts. The firm regularly appears in the courts serving Cambridge, Quincy, Dedham, Woburn, and Waltham. The firm’s coverage also includes the courts serving Hingham, Framingham, Malden, Somerville, and Lowell.
Frequently Asked Questions About Witness Intimidation Charges
Is asking the complainant to drop the charges witness intimidation?
Asking the complainant to drop the charges can be witness intimidation. A request to drop the charges is not intimidation by itself. The Commonwealth may charge § 13B when the request comes with a threat, an offer of money or something else of value, harassment, or misleading statements. The defendant must also have intended to interfere with the case or acted with reckless disregard of the risk of interference. Under Commonwealth v. Bellard, 494 Mass. 446 (2024), an offer must be concrete and conditioned on noncooperation. Any contact also violates a no-contact condition of release or a 209A restraining order. Violating a 209A restraining order is a crime under G.L. c. 209A, § 7. Violating a condition of release can result in revocation of release and detention under G.L. c. 276, § 58B.
Can a jail call be used against me in a witness intimidation case?
Yes. Calls from a jail or house of correction are recorded. A recorded announcement warns both parties that the call is recorded. The Commonwealth may offer the call at a dangerousness hearing and at trial. The defendant’s own statements are admissible against the defendant. The defense obtains the complete recording rather than the excerpt in the police report. The surrounding conversation often shows that a statement was an expression of affection, an assertion of innocence, or a request to tell the truth rather than an attempt to interfere with the case.
What if the complainant contacted me first?
The defendant may not reply to the complainant, even when the complainant made contact first. A no-contact condition of release and a 209A restraining order bind the defendant alone. A response to the complainant’s message or call is contact that violates the order. The question whether the reply is also witness intimidation depends on its content and purpose. The defendant should preserve the incoming message or call log, not respond, and give it to defense counsel. Who initiated the contact can bear on intent. The defense uses evidence of who initiated the contact, but a reply to contact that the complainant initiated still violates the order.
What is the penalty for intimidation of a witness in Massachusetts?
A defendant convicted of intimidation of a witness under G.L. c. 268, § 13B faces up to ten years in state prison or up to two and one-half years in a house of correction, a fine of $1,000 to $5,000, or both. The charge is a felony. The Commonwealth may move at arraignment to hold the defendant without bail after a dangerousness hearing under G.L. c. 276, § 58A. The Commonwealth often brings the charge alongside a domestic violence charge, and a conviction carries its own immigration, firearms, and licensing effects.
What does the Commonwealth have to prove for witness intimidation?
Three elements, each beyond a reasonable doubt. First, the defendant willfully, directly or indirectly, threatened, attempted to cause, or caused injury or property damage to another person, or conveyed a gift, offer, or promise of value, or misled, intimidated, or harassed another person. Second, the other person was a witness or potential witness, a person with information about a crime or a court order violation, a court official, a person attending a proceeding, or a family member of one of them. Third, the defendant intended to interfere with an investigation or proceeding, or acted with reckless disregard that the conduct might, or acted to retaliate.
Who counts as a witness under G.L. c. 268, § 13B?
Five groups. Witnesses and potential witnesses. People with information or evidence about a crime or an alleged violation of probation, parole, bail, or a court order. Judges, jurors, lawyers, court staff, police officers, investigators, and probation and parole officers. People attending, or known to intend to attend, a covered proceeding. Family members of anyone in those groups. A charge can rest on conduct toward someone other than the person expected to testify. The Commonwealth must still prove how the person fits a category and how the conduct was meant to interfere or retaliate.
Is a threat required for a witness intimidation charge?
No. The statute covers more than threats. It also covers misleading a witness or investigator, harassing a protected person, and conveying a gift, offer, or promise of value. Harass has a statutory definition: conduct directed at a particular person that seriously alarms or annoys that person and would cause a reasonable person substantial emotional distress. Words or conduct that would influence or instill fear in a reasonable person can be intimidation without an express threat. Angry or ambiguous language is not automatically intimidation. The Commonwealth must connect the conduct to an intent to interfere with a proceeding.
Can I be charged with witness intimidation for lying to the police?
Yes, under the misleading theory, but only for a statement that could materially affect the investigation, such as one that sends investigators after information they otherwise would not have pursued. Commonwealth v. Paquette, 475 Mass. 793. A bare denial of guilt is not misleading under the statute. Commonwealth v. Morse, 468 Mass. 360. Silence, a refusal to answer questions, and an exercise of the right to remain silent are not misleading statements. The Commonwealth must prove an affirmative misrepresentation and the intent to interfere with the investigation.
Is offering money or a place to live to a witness intimidation?
It can be, when the Commonwealth proves a concrete offer or promise of something of value conditioned on the witness not cooperating. A discussion of what might happen after the case ends is not an offer. In Commonwealth v. Bellard, 494 Mass. 446, the Supreme Judicial Court reversed a conviction based on recorded jail calls between a defendant and his fiancée, because assurances about their relationship and family life were not a sufficiently concrete offer of value in exchange for her silence. The defense reviews the complete recording, not only the excerpt the Commonwealth selected.
Can I be held without bail on a witness intimidation charge?
Yes, after a dangerousness hearing. Intimidation of a witness is a qualifying charge under G.L. c. 276, § 58A. On the Commonwealth’s motion, the judge can order the defendant held without bail for up to 120 days in the District Court, absent good cause, on clear and convincing evidence that no conditions of release will reasonably assure the safety of any other person or the community. When the intimidation charge arises from contact that violated a no-contact condition in a pending case, the Commonwealth may also move to revoke release in that case under G.L. c. 276, § 58B.
Does the witness have to be afraid for the Commonwealth to prove intimidation?
Not always. Depending on the theory, the Commonwealth does not have to prove that the effort succeeded, that the witness received the statement, or that the witness was frightened. The judge or jury asks whether the words or conduct, in context, would influence or instill fear in a reasonable person, considering the content, the tone, the setting, the earlier communications, and the relationship between the parties. The Commonwealth must still prove the charged conduct, the protected status of the target, and the required intent or reckless disregard.
Can taking a phone during an argument be witness intimidation?
Yes, when the Commonwealth proves that the defendant took or broke the phone to stop a call to the police or to interfere with an investigation, or acted with reckless disregard of that risk. The statute covers conduct toward a potential witness and a person with information about a crime. The Commonwealth must prove the purpose, not only the act. Taking a phone to end an argument or to stop a recording is different from taking it to prevent a 911 call. The same act can also be charged as malicious destruction of property if the phone was damaged.
Contact Serpa Law Office
A witness-intimidation charge should be evaluated separately from the underlying criminal case. Attorney Serpa examines the complete communications, the statutory theory, the alleged target’s status, and the evidence of intent. To discuss a charge or investigation confidentially, call 617.936.0201.
Related Serpa Law Office Resources
- When the Police Protect and Serve Only Themselves: Sandra Birchmore and the Federal Trial of Matthew Farwell
- Massachusetts Domestic Violence Defense
- Massachusetts Restraining Orders and Harassment Prevention Orders
- Recantation in a Massachusetts Domestic Violence Case
- Cross-Examination in Massachusetts Criminal Trials
- Massachusetts Clerk-Magistrate Hearings
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