Intimidation of a Witness (Mass. Gen. Laws ch. 268, §13B)

Massachusetts prosecutes intimidation of a witness under M.G.L. c. 268, § 13B. It is the Commonwealth’s obstruction of justice law and is one of the most common charges in a domestic violence case. The statute is broad. It prohibits threats and violence, offers of money, misleading statements to investigators, and conduct that would objectively make a reasonable person afraid, whether or not the actual person was in fact afraid. A conviction is a felony that carries up to ten years in state prison. The charge most often accompanies an assault and battery on a family or household member or a restraining order matter. It is a separate count with its own elements and its own evidence.

In domestic violence cases, a victim reporting either recantation or an unwillingness to participate can sometimes make the case impossible to try. While the decision to prosecute is the Commonwealth’s trial can occur only with a live witness or an exception to the hearsay rule, most often spontaneous utterances. Without these exceptions, cases can end with a dismissal on a trial date whether the witness doesn’t appear or asserts a spousal privilege against testifying.

However, defendants must be cautious. A finding that the accused coerced or offered something of value to achieve a recantation or absence of a witnesses can face not only a witness intimidation charge, but may also lead to a ruling the they have forfeited their right to confront the witness, allowing trial to proceed using their out-of-court statements in their absence.

The statute protects five categories of people and punishes several distinct kinds of conduct. Much of the litigation turns on three questions: first, whether the defendant acted with the intent the statute requires, and second and third, how the conduct affected the alleged victim or whether a misleading statement in fact misled an investigator in a true criminal investigation. Attorney Serpa defends these cases across Greater Boston. This page explains the elements, the penalties, the leading cases, and effective defenses.

Sealing and Expungement of a Conviction

First, a grave advisement. A conviction for intimidation of a witness creates a permanent criminal record, and that permanence is one of the most serious consequences of the charge. The conviction cannot be sealed. The statute that seals adult convictions, M.G.L. c. 276, § 100A, does not apply to convictions under chapter 268’s crimes against public trust offenses. Intimidation of a witness is a chapter 268 offense. The separate process under M.G.L. c. 276, § 100C seals only dismissals and other cases that did not end in a conviction, so it does not reach a person who was convicted. Expungement is available only in rare circumstances. The reason based expungement of M.G.L. c. 276, § 100K covers a record that resulted from identity theft or false identification, conduct that is no longer a crime, or a demonstrable error by law enforcement, a witness, or the court. Time-based expungement is also unavailable. Expungement for cause (fraud on the court) is a possibility but is very difficult to prove. For an adult convicted under § 13B, neither route is realistically available, and the conviction stays on the record for life.

That permanence is especially dangerous for the people this charge most often reaches. Many of them have no prior record, hold a professional or occupational license, are students or are not citizens. A conviction that cannot be sealed is disclosed on every background check, and it is weighed in licensing and immigration decisions long after any sentence is served. For these clients, avoiding a conviction in the first place, at a clerk magistrate hearing or at trial, matters far more than the sentence alone.

The Statute and the People It Protects

M.G.L. c. 268, § 13B protects five categories of people. The first is a witness or a potential witness. The second is a person who is or was aware of information, records, or objects that relate to a case or investigation, whether a civil case, a criminal case, including a claimed violation of probation, parole, or bail. The third is a long list of officials, including a judge, a juror, a grand juror, an attorney, a victim witness advocate, a police officer, a correction officer, an investigator, a clerk, a court officer, a probation officer, or a parole officer. The fourth is a person who may or will testify or provide evidence in a court proceeding. The fifth is a family member of any of these people. The 2018 amendment added family members and several of the protected officials, so the scope of the statute now extends well beyond the trial witness that the older law protected. A victim need not testify, but can be anyone who may be called to testify. Commonwealth v. Burt, 40 Mass. App. Ct. 275 (1996).

The Conduct the Statute Addresses

The statute lists three kinds of prohibited conduct, done directly or indirectly, and either recklessly or willfully. The first is to threaten, attempt, or cause physical, emotional, or economic injury or property damage. The second is to convey a gift, an offer, or a promise of anything of value. The third is to mislead, intimidate, or harass, including threats to emotional and economic injury. An accused’s intent to commit the act or their reckless disregard for the outcome of the conduct are the required mental states. Each theory is a separate route to a conviction, and each has its own case law. A strong defense must first identify which theory the Commonwealth is in fact pursuing.

The Intent the Commonwealth Must Prove

Intent is where many of these cases are decided. Under the current statute the Commonwealth must prove that the defendant acted with the intent to, or with reckless disregard for the fact that the conduct may, impede, obstruct, delay, or otherwise interfere with a criminal investigation or a proceeding, or to retaliate for participation in one. Commonwealth v. Fragata, 480 Mass. 121 (2018). The timing of the alleged conduct matters. In Fragata the defendant took the spouse’s phone during an argument but before the subsequent alleged assault and battery. The Massachusetts Supreme Judicial Court found that no crime had occurred yet, and the statute was not violated.

What Counts as Intimidation

Intimidation is measured by an objective standard. The question is whether the defendant’s acts or words would instill fear in or influence a reasonable person, not whether the particular witness was in fact frightened. Commonwealth v. Rivera, 76 Mass. App. Ct. 530 (2010). The conduct does not have to be an overt threat. Pointing a cellphone camera at an undercover officer who was waiting to testify was intimidation, because an action does not need to be openly threatening to fall within the meaning of the word. Commonwealth v. Casiano, 70 Mass. App. Ct. 705 (2007). To intimidate is to put a person in fear for the purpose of compelling or deterring participation or testimony, but the victim need not experience fear. Commonwealth v. Gordon, 44 Mass. App. Ct. 233 (1998). Because the standard is objective and broad, an argument that the conduct was not frightening rarely succeeds on its own. However, the nature and quality of the alleged intimidation can be relevant to the accused’s intent.

Veiled and Implicit Threats

The statute prohibits indirect and veiled threats, not only explicit ones. A man under investigation who confronted an informant outside the courthouse and asked whether her son would live to be thirty six, and whether she was afraid of him, had made a sufficient threat even though he never stated an explicit intent to do harm. Commonwealth v. Burt, 40 Mass. App. Ct. 275 (1996). The father of a defendant who approached a young juror, stood inches away, and made oblique references to a violent film and to his son’s case committed intimidation although he said nothing that could be read as an explicit threat. Commonwealth v. Gordon, 44 Mass. App. Ct. 233 (1998). These cases cut both ways for the defense. Vague or indirect words can support a conviction. However, precise words, and their tone and the surrounding circumstances, just like ambiguous remarks, can be innocent.

The Misleading Theory and Its Limits

Our appellate courts have interpreted the misleading element closely. A statement misleads only if it reasonably could lead investigators to pursue a course of investigation materially different from the one they otherwise would have followed. Commonwealth v. Paquette, 475 Mass. 793, 801-802 (2016). The Supreme Judicial Court gave a concrete illustration: incorrectly telling an officer that a suspect fled the wrong way was misleading. Incorrectly answering that one does not know a material fact likely does not violate the statute. A bare denial of guilt, without an affirmative misrepresentation or an attempt to shift the blame onto someone else, is exculpatory rather than misleading. Commonwealth v. Morse, 468 Mass. 360 (2014).

By contrast, a gunshot victim who falsely told the responding officer that the shooter fired from far away could and did mislead a reasonable officer. Commonwealth v. Fortuna, 80 Mass. App. Ct. 45 (2011). Misleading conduct is not limited to spoken words. Concealing or destroying evidence can also mislead. Commonwealth v. Tejeda, 89 Mass. App. Ct. 625 (2016). A witness ordinarily has no duty to speak to the police at all. A nonfactual but unhelpful or silent response is not a violation and is protected by the right to remain silent.

The Connection to a Real Investigation or Proceeding

The conduct must be connected to a genuine criminal investigation or proceeding, or an administrative or civil case. In an unusual case, the Appeals Court held that a nonexistent “sham” drug investigation in which the defendant was in fact a target but believed he was an informant was not a true investigation under the statute. The defendant misled the police about the sham, nonexistent drug investigation. The court reversed his conviction. Commonwealth v. Occhiuto, 88 Mass. App. Ct. 489 (2015).

At the same time, the statute does not require that a case is already filed in court. The victim of intimidation or obstruction can be a person who may be called to testify or who is aware of information about a possible crime. Commonwealth v. Burt, 40 Mass. App. Ct. 275 (1996); Commonwealth v. Fragata, 480 Mass. 121 (2018). The defense examines whether a true investigation existed, whether the target was connected to it, and whether the conduct could have affected it.

The Penalties

Intimidation of a witness is a felony. The penalty can be imprisonment in the state prison for not more than ten years, or in a house of correction for not more than two and one half years, or a fine of not less than $1,000 and not more than $5,000, or both a fine and imprisonment. Where the underlying matter involves a crime punishable by imprisonment for life, the penalty can be up to twenty years in the state prison and a fine of not more than $10,000. The charge is frequently brought and tried in the District Court or the Boston Municipal Court, where the sentence on a single count is a maximum of two and one half years. Because witness intimidation is a felony the Commonwealth may elect to indict it to the Superior Court, where a state prison sentence is available. Whether the case is indicted therefore is critical.

The Model Jury Instruction for Intimidation of a Witness

The Criminal Model Jury Instructions for Use in the District Court set out the elements of witness intimidation at Instruction 7.360: “Intimidating a witness, juror, court official, or law enforcement officer.” The instruction requires the Commonwealth to prove that the defendant willfully committed one of the listed acts, that the target fell within a protected category, and that the defendant acted with the specific intent to impede or retaliate, or with reckless disregard that the conduct might have that effect. The instruction notes that intimidation does not require that the victim be placed in fear, which is consistent with the objective standard of the case law.

Intimidation of a Witness in Domestic Violence Cases

Section 13B is one of the most common charges added to a domestic violence case. It typically arises when, after an arrest, the defendant contacts the complainant, directly or through family or friends or through recorded calls from a pretrial detention in a jail or house of correction, and asks that the charges be dropped, that the complainant recant, or that the complainant not appear. It occurs just as frequently when the defendant grabs the victim’s cellphone as they attempt to call police after an assault and battery. Fragata was itself a domestic violence case. The recorded jail call is a routine source of evidence, and the Commonwealth will use it to prove both the contact and its purpose. The defense listens to the entire call rather than the excerpt quoted in the report, because a request that a family member tell the truth, or an ordinary expression of affection or regret, is not the crime of intimidation, and the meaning of a call depends on its whole content and tone. The same incident often produces a parallel charge of assault and battery on a family or household member and a 209A abuse prevention order.

The Overlap With Forfeiture by Wrongdoing

The evidence that supports an intimidation charge can carry a second consequence. Under the doctrine of forfeiture by wrongdoing, a defendant who procures a witness’s unavailability by his own wrongdoing loses the right to confront that witness, and the absent witness’s out of court statements, including a 911 call or a statement to the police, can be used in court. Commonwealth v. Edwards, 444 Mass. 526 (2005); Commonwealth v. Szerlong, 457 Mass. 858 (2010). The same jail calls and third party contacts that the Commonwealth offers to prove intimidation or obstruction under a § 13B charge are often offered to argue forfeiture, so that the complainant’s earlier statements reach the jury even if the complainant never testifies.

A non-testifying witness is subject to impeachment just as a testifying witness is. The rules that open the absent accuser to impeachment once the statements come in, are the subject of the firm’s page on excited utterances and spontaneous utterances when an accuser recants or refuses to testify and its post on the Confrontation Clause and forfeiture by wrongdoing.

Defenses in an Intimidation of a Witness Case

An effective defense addresses the elements of the alleged crime. The first is the absence of the required intent, because an intent to avoid criminal trouble is not always an intent to obstruct an investigation, and a bare denial of guilt is not a crime. Commonwealth v. Morse, 468 Mass. 360 (2014). A second defense attacks the misleading element, because a statement is not misleading unless it could reasonably send investigators down a materially incorrect path. A vague or unhelpful answer, or a refusal to speak, is not covered. Commonwealth v. Paquette, 475 Mass. 793 (2016). The third is the absence of a connection to a real investigation or proceeding. Commonwealth v. Occhiuto, 88 Mass. App. Ct. 489 (2015). The fourth interprets ambiguous words as innocent. A request that a witness tell the truth, or a defendant’s own account of events, is protected speech rather than intimidation. In a case with more than one person present, the defense also tests whether this defendant themself made the statement or shared the intent, rather than tacitly agreeing or acquiescing. Commonwealth v. Perez, 47 Mass. App. Ct. 605 (1999). Beyond the elements, the defense examines how any recording was obtained and whether it is complete. For a person who is summonsed rather than arrested, the clerk magistrate hearing is an opportunity to avoid a criminal case and a criminal record, and a persuasive presentation there can keep a complaint from issuing.

Who Attorney Serpa Represents

Attorney Serpa defends people charged with intimidation of a witness, most often as one count in a larger domestic violence or assault case, and sometimes as a separate charge arising from a phone call, a message, or an encounter near a courthouse. Many of these clients have no record, and many are alleged to have done nothing more than speak with a family member about a pending case. The firm treats the charge as a serious felony that requires its own defense, and it examines the intent element, the misleading theory, and the recordings with care. If you are facing an intimidation of a witness charge in Massachusetts, contact Attorney Serpa at 617.936.0201 for a confidential consultation.

Massachusetts Courts Where Attorney Serpa Tries These Cases

Attorney Serpa handles intimidation of a witness cases in the Boston Municipal Court and in the district courts of Eastern and Central Massachusetts. These include the Quincy, Cambridge, Dedham, Woburn, Waltham, Hingham, Framingham, Malden, Somerville, and Lowell District Courts, and in the Superior Court where the charge is indicted. Each courthouse has its own judges, prosecutors, and practices. Attorney Serpa has tried cases in these buildings for thirty years, and that experience informs the defense in every case.

Related Serpa Law Office resources

Intimidation of a witness rarely stands alone, and it usually arrives as part of a domestic violence case. The same event often includes a charge of assault and battery on a family or household member and a 209A abuse prevention order. When the accuser recants or will not testify, whether the case is tried is governed by the rules on excited utterances and spontaneous utterances and on the Confrontation Clause and forfeiture by wrongdoing, and the discipline of testing the Commonwealth’s proof at trial is the subject of the firm’s page on cross-examination in Massachusetts criminal trials. For a charge that begins with a summons, the clerk magistrate hearing is the first place to keep a complaint from issuing.