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 added to a domestic violence case. The statute is broad. It prohibits threats and violence, an offer of money, a misleading statement to an investigator, 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, but it as a separate case with its own elements and its own evidence.

The statute was rewritten in 2006 and broadened again in 2018, and the current version protects five categories of people and punishes several distinct kinds of conduct. Much of the litigation turns on three questions: whether the defendant acted with the intent the statute requires, and how the conduct affected the alleged victim or whether a statement said to have misled an investigator in fact misled anyone. Attorney Serpa defends these cases across Greater Boston. This page explains the elements, the penalties, the leading cases, and effective defenses.

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 or even 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 is attending or has made known an intention to attend 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 reach of the statute now extends well beyond the trial witness that the older law protected. A victim need not actually testify. A victim of the statute includes anyone who may be called to testify. Commonwealth v. Burt, 40 Mass. App. Ct. 275 (1996).

The Conduct the Statute Adresses

The statute lists three kinds of prohibited conduct, done directly or indirectly and 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. The 2006 amendment added the misleading and harassing theories of guilt, and the 2018 amendment added threats to emotional and economic injury and the reckless disregard standard described below. 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 2018 amendment added the reckless disregard alternative, which crimiliazes conduct that falls short of a specific intent to obstruct. The date of the alleged conduct matters to what the Commonwealth has to prove. Fragata reversed a conviction because the Commonwealth’s theory, that the defendant took a phone to stop a 911 call before any crime had occurred, did not line up with the intent the statute requires.

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 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 actually 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, and the defense pairs it with the intent questions that follow.

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 Alamo asked 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 cornered 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 express threat. Commonwealth v. Gordon, 44 Mass. App. Ct. 233 (1998). These cases cut both ways for the defense, because if indirect words can support a conviction, then the precise words, the tone, and the setting matter, and an ambiguous remark that the Commonwealth reads as a threat can often have an innocent intent.

The Misleading Theory and Its Limits

The misleading theory is the one the appellate courts have reviewed most closely, and it is a frequent point of successful defense. 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 the responding officer that the shooter fired from far away made a statement that could 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 an officer. Commonwealth v. Tejeda, 89 Mass. App. Ct. 625 (2016). A witness ordinarily has no duty to speak to the police at all. An nonfactual but unhelpful or silent response is not a violation.

The Connection to a Real Investigation or Proceeding

The conduct must have a connection to a genuine criminal investigation or proceeding, or civil case. Where the only investigation was a controlled operation and the sole person who could be led astray was the defendant himself, the Appeals Court held that a nonexistent investigation into a nonexistent crime is not a criminal investigation under the statute, and it reversed the conviction. Commonwealth v. Occhiuto, 88 Mass. App. Ct. 489 (2015). At the same time, the statute does not require that a case already be pending. 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, rather than conceding that any unpleasant exchange related to a case satisfies the statute.

The Penalties

Intimidation of a witness is a felony. The penalty is 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 exposure rises to not more than 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 capped at two and one half years, but because it is a felony the Commonwealth may indict it to the Superior Court, where the full state prison range is available. Whether the case is indicted therefore is critical.

The Model Jury Instruction

The Criminal Model Jury Instructions for Use in the District Court set out the elements at Instruction 7.360, intimidating a witness, juror, court official, or law enforcement officer, revised September 2022. 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 tracks 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. 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. The framework for that fight, and 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 addressed the elements of the alleged crime. The first is the absence of the required intent, because an intent to avoid blame 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 theory, because a statement is not misleading unless it could reasonably send investigators down a materially incorrect path, and an equivocal 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: 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, clerk magistrate hearing is an opportunity for a persuasive presentation 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.

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.