G.L. c. 268 sec. 13D(d) was passed by the Massachusetts Legislature in March of 2006. The law was passed in part as a response to claims that criminal defendants were disseminating grand jury testimony as a means of intimidating witnesses, particularly in murder cases. The law permits prosecutors to request a hearing for a court ordered protective order prohibiting defense lawyers from distributing grand jury transcripts to their clients. The law requires the prosecution to demonstrate that 1) the defendant is accused of a violent crime and 2) based on “specific and articulable facts” the defendant presents a threat to the witness. In assessing the viability of these motions judges are to consider the defendant’s history of violence, the nature of the charges against him and the existence of the threat to the witness. A prerequisite to the order is that the defendant be permitted to cross-examine the witness.
Recently, lawyers in Massachusetts have been confronted with prosecutor’s motions for protective orders under this law as a matter of course, especially in murder cases. Rather than order an evidentiary hearing that permits cross-examination of the concerned witness, judges are often times endorsing the motions.
There are challenges that can be made in opposition to these motions that stem directly from basic constitutional guarantees in both the Massachusetts and United States Constitutions. Our office has been engaged in a challenge to this law for several months now. It stems from a prosecutor’s blanket request that our client not receive certain grand jury testimony transcripts except in redacted form. The judge allowed the motion never requiring the prosecutor to demonstrate the “specific and articulable facts” required under the statute. The order was also issued without regard to our client’s right to cross-examine the witnesses to ascertain whether or not the client did in fact pose a threat to these witnesses.
We are prepared to fight this issue as well as any others that arise for all of our clients. If you are looking to hire a criminal lawyer in Massachusetts we encourage you to view our website and learn about the types of criminal cases we defend. We are available twenty four hours a day, seven days a week.
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G.L. ch. 268 sec. 13D(d)