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

Massachusetts Witness Intimidation Charges Under G.L. c. 268, § 13B

Intimidation of a witness in Massachusetts is prohibited by General Laws c. 268, § 13B, Massachusetts’s obstruction-of-justice statute. 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; conveyed a gift, offer, or promise of value; 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, a judge, juror, lawyer, investigator, law enforcement or court official, a person attending or intending to attend a proceeding, or a family member of one of those people.
• 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 count first appears are collected in the Massachusetts witness intimidation FAQs.

A violation is a felony. It may be charged as a separate offense when the underlying case involves domestic violence, an alleged violation of a 209A 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. The words used, their context, the identity of the recipient, and the defendant’s purpose can determine whether the Commonwealth can prove the charge.

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. Those inquiries should not be collapsed into a general claim that the defendant behaved badly.

The Commonwealth does not necessarily have to prove that the effort succeeded. Depending on the theory, it may not have to prove that the intended target received the statement or was frightened. It 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 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. They 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. For that reason, a charge may 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. They 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 content and tone still matter, as do the setting, prior communications, and relationship between the parties.

Ambiguous or angry language is not automatically witness intimidation. The Commonwealth must prove more than an unpleasant encounter. It 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. It 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 valuable 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 is particularly important 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. It 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 that standard. 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. It applies to criminal investigations at any stage and to grand-jury proceedings. It also applies to dangerousness hearings, motions, trials, and probation or parole matters.

The statute also applies to administrative hearings and many civil matters. They 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 this 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.

Recorded calls from a jail or house of correction are a recurring source of evidence. The complete recording matters. A selected excerpt may sound different when the surrounding discussion is heard, and 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 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.

If forfeiture is found, statements such as a 911 call or an earlier report may become admissible 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.

Intent is often central. 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.

When the prosecution is 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. It 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.

If police seek a statement about a possible intimidation charge, speaking 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. The consequences should be evaluated according to the particular disposition rather than assuming 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. When a clerk-magistrate hearing is available, counsel may challenge probable cause and explain disputed communications before a formal complaint issues.

Early preservation of evidence can be decisive. 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 can be important as well.

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. Its coverage also includes Hingham, Framingham, Malden, Somerville, and Lowell.

Related Serpa Law Office Resources

• 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

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.