Massachusetts Witness Intimidation FAQs

Section 13B covers three kinds of conduct, done directly or through another person. The first is threatening, attempting, or causing physical, emotional, or economic injury or property damage. The second is conveying a gift, offer, or promise of anything of value. The third is misleading, intimidating, or harassing. The people protected include witnesses and potential witnesses, anyone with relevant information, judges, jurors, police, court staff, and family members of those people. The Commonwealth must also prove that the defendant intended to interfere with an investigation or proceeding, acted in reckless disregard of that effect, or intended to retaliate.

Witness intimidation is always a felony, with no misdemeanor version. Witness intimidation is ordinarily punishable by up to ten years in state prison or up to two and one half years in a house of correction, by a fine of $1,000 to $5,000, or by both a fine and imprisonment. Intimidation in a matter that concerns a crime punishable by life imprisonment is punishable by up to twenty years in state prison or up to two and one half years in a house of correction. The same penalties apply to intimidation concerning the parole of a person convicted of a crime punishable by life imprisonment. The judge may instead impose a fine of up to $10,000, or may impose both the fine and imprisonment. The District Court and the Boston Municipal Court have final jurisdiction, but the Commonwealth may indict and prosecute the charge in the Superior Court.

Possibly. A complaining witness does not control whether a prosecution continues. The prosecutor decides whether to continue the prosecution, so a request directed at the witness cannot end the case. A bare request to drop the charges or not to testify is not automatically intimidation. The Appeals Court reversed an intimidation conviction where a defendant asked a witness to recant and offered favors, because the evidence did not prove that the defendant’s words conveyed a threat. The Appeals Court stated that the Commonwealth’s evidence was more than sufficient to support a conviction under the clause covering a gift, offer, or promise of anything of value, but the jury did not convict on that clause. Commonwealth v. Ruano, 87 Mass. App. Ct. 98 (2015). A request made in a different context can be intimidation. Offering anything of value to shape testimony violates the statute on its own.

No, not without speaking to counsel first. Three separate prohibitions can apply at the same time. A person can violate one prohibition while complying with another. A bail order or a condition of release may forbid contact. A 209A restraining order or 258E harassment prevention order may forbid contact independently. A violation of either order is a separate crime. Section 13B applies to the content and purpose of the communication whether or not a court order forbids contact. Not every communication with a witness is intimidation, but a person under investigation is rarely in a position to judge whether a particular message is intimidation.

The Commonwealth does not have to prove that the witness was afraid or that the attempt succeeded. The legal standard for intimidation is objective. A judge or jury measures the conduct by the effect it would have on a reasonable person rather than by what the particular witness felt. The statute also covers attempts and offers that fail. Conduct does not have to be overtly threatening. Pointing a cell phone camera at a waiting witness supported a conviction. Commonwealth v. Casiano, 70 Mass. App. Ct. 705 (2007).

Taking someone’s phone during an argument can be witness intimidation. The Supreme Judicial Court has held that depriving a potential witness of a phone when that person seeks to report a possible crime can qualify as witness intimidation. No investigation needs to exist yet. Commonwealth v. Fragata, 480 Mass. 121 (2018). In Fragata, however, the Supreme Judicial Court reversed the conviction, because no possible criminal violation had yet occurred at the moment the phone was taken. The question whether taking a phone is witness intimidation depends on the sequence of events.

Yes. The statute says “whoever” and contains no exception for a complaining witness, so § 13B applies to a complainant who threatens or pressures another witness. A judge addresses a complainant’s own refusal to testify through the contempt power, not under § 13B. The evidentiary questions raised by a witness who changes an account are discussed in the article on recantation in a Massachusetts domestic violence case.

Deleting texts, photos, or videos is ordinarily a different felony. Destroying or concealing evidence with intent to impair its availability in a proceeding is tampering under G.L. c. 268, § 13E. Section 13B addresses conduct directed at people. The Supreme Judicial Court has held that destroying evidence in plain view is not “misleading” within the meaning of § 13B. Commonwealth v. Tejeda, 476 Mass. 817 (2017).

Jail calls and messages often become the central evidence in the case. Calls from a house of correction are recorded and routinely produced in discovery. Message threads are obtained by summons or by extraction from a device. A selected screenshot or a clipped excerpt frequently reads differently once the surrounding exchange is included, so counsel should obtain the complete source material and its metadata rather than rely on the summary in a police report. The rules governing authorship, authentication, completeness, and hearsay are set out at admitting and objecting to digital evidence and in the text message and phone evidence FAQs.

Yes. Section 13B is an enumerated predicate under G.L. c. 276, § 58A, so the Commonwealth may move for a dangerousness hearing and pretrial detention based on the charge alone. A motion for pretrial detention is frequently the first consequence that a defendant faces when the Commonwealth adds an intimidation count to a domestic violence case.

Yes. The protected proceedings are listed expressly and include criminal investigations at any stage, grand jury proceedings, dangerousness and motion hearings, trials, probation and parole matters, administrative hearings, Probate and Family Court matters, clerk-magistrate hearings, and other civil proceedings. Conduct around a clerk-magistrate hearing has supported convictions. The separate charge for violating a protective order is covered in the 209A restraining order and 258E harassment prevention order violation FAQs.

Yes. A potential witness at any stage of a criminal investigation includes a person likely to participate in an investigation that has not yet begun. Preventing someone from calling police about a possible crime can support the charge even though nothing has been filed.

No. Intimidation of a witness under § 13B is a separate offense. The Commonwealth frequently continues to prosecute the intimidation count after the underlying case is dismissed. The grounds on which a Massachusetts criminal case can be dismissed or stopped before trial apply to the intimidation count separately. Each count must be evaluated on its own evidence.

A person who secretly records a conversation and uses the recording to pressure a witness can face a second felony charge in addition to the § 13B count. Massachusetts prohibits secret recording of oral communications. The rules, including those for telephone calls and home cameras, are set out at Massachusetts wiretap law and secret recordings.

Forfeiture by wrongdoing is a separate evidentiary doctrine, not an element of the charge. A judge who finds by a preponderance at an evidentiary hearing that a defendant helped procure a witness’s unavailability and acted with that purpose may admit the witness’s out-of-court statements. The defendant’s confrontation objection is then treated as waived. A judge does not make a forfeiture finding automatically because the Commonwealth has charged a violation of § 13B. The forfeiture question and the § 13B charge must be litigated separately. The requirements for forfeiture are set out on the practice page.