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ALL I TOLD THE POLICE WAS “I DON’T KNOW.”

Massachusetts General Laws Chapter 268, section 13B criminalizes “witness intimidation.”  This exceptionally broad statute prohibits a panoply of conduct, and perhaps most often comes into play when an individual grabs a cellphone from another person who is alleged to have been trying to call the police.  I have represented many clients charged with “witness intimidation” for having allegedly grabbed their significant other’s cellphone during a heated argument.  In those cases, my client is often mystified at why they are being charged with “witness intimidation,” which sounds much more criminal than simply grabbing a phone.  “Witness Intimidation” is a felony, punishable by state prison time.

Another typical example of a “witness intimidation” charge, resulting from the law’s all-inclusive sweep, is when an individual makes a false statement to the police.  I have even watched videotaped interviews of suspects in which the police inform the interviewee that lying to them is likely a more serious offense than the offense that they are suspected of committing.  This warning is in fact usually true.

But the scope of the “witness intimidation” statute was recently reined in by the Massachusetts Supreme Judicial Court, in the case of Commonwealth v. Paquette.  In this 2016 case, the SJC vacated a defendant’s conviction, holding that, in a “witness intimidation” case based on alleged statements misleading the police, the jury should have been instructed that to “mislead” under the statute, the government must prove that the defendant’s statement reasonably could have lead the police to alter their investigation.

The facts of the Paquette case involved a house party that ended in a fight with injuries.  The host of the party was interviewed twice by the state police, and he told them that he did not witness the fight and did not know the identity of some of the partygoers or participants.  At least by the time of second interview, the investigators knew who had been involved in the fight, and in fact they had already arrested and charged the person they believed was the primary aggressor.  After the second interview, in which the defendant again failed to identify all of the persons present at the party, the state police apparently forwarded the interview recordings to the District Attorney for prosecution.  Ultimately, the matter was submitted to a grand jury, which indicted the defendant under the witness intimidation statute.  The defendant was convicted after a jury trial, and appealed.

On direct appellate review, the SJC first noted that “[w]itnesses ordinarily have no obligation to disclose information to police[,]” which is an important point to remember.  However, once one chooses to speak with the police, the witness intimidation statute prohibits intentionally misleading them in some circumstances.

The Court focused much of its analysis on the meaning of the word “mislead,” and held that, for the purposes of the witness intimidation statute, “whether a statement is ‘mislead[ing]’ . . . depends on whether it reasonably could lead investigators to pursue a course of investigation materially different from the course they otherwise would have pursued.  In short, ‘He went that way’ may well be misleading, but ‘I don’t know’ likely is not.”

The defendant’s conviction of misleading the police in violation of the witness intimidation statute was therefore vacated, as the police already knew who was involved, and therefore the defendant’s statement of “I don’t know who was involved” was not reasonably likely to send the police off on a wild goose chase, i.e., mislead them.

Attorney Kevin D. Quinlan

Uxbridge, MA

(508) 723-6384

attorneyquinlan@gmail.com

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