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The Privilege Against Self-Incrimination After Testifying Under Oath: Commonwealth v. Martin, 423 Mass. 496 (1996)

There was once a time in Massachusetts when a witness who had already testified before a grand jury could simply invoke his privilege against self-incrimination and avoid having to testify in court. Then, in the mid 1990’s, when street gang violence was perhaps at its worst in Boston, things started to change. Prosecutors started to fight the trend of violent gang members who witnessed crimes refusing to testify. One way of doing this was to put the witness in the grand jury and lock him into his testimony. Many of these witnesses agreed to testify at this “closed” proceeding under the erroneous belief that they would never have to testify against the defendant in open court. I was often told that police officers and unscrupulous district attorneys would create this false sense of security. Then, when called to trial the witnesses would either feign memory loss or refuse to testify. This tactic was challenged in 1996 in the case of Commonwealth v. Martin, 423 Mass. 496 (1996).

The Facts

Luman Martin was charged with several violent Massachusetts felonies. One witness testified against him before the grand jury. This witness was also the primary victim in this case. He testified that Martin put a gun to his head and threatened him. At that time, another party came to the witnesses’ aid. Martin then fired at the parties, missing everyone. The witness knew Martin as the two had grown up together in the projects. At trial the witness told the judge that he needed to talk to a lawyer. One was appointed for him. The lawyer told the judge that the witness had a Fifth Amendment privilege due to the fact that he lied before the grand jury. The judge did not believe the witness and the issue was reported to the Massachusetts Supreme Judicial Court. The issues on appeal were: 1) can the witness invoke his Fifth Amendment privilege if it is determined that he lied before the grand jury and 2) how can a judge make that determination.

The Law When Someone Claims a Privilege Against Self-Incrimination After Having Testified Before a Grand Jury

As to issue number 1 the Court held that testifying before a grand jury does not constitute a waiver of one’s right against self-incrimination if the witness is called to testify at trial. In other words, if you lie before the grand jury you will not be obligated to testify at trial absent a grant of immunity. As to issue number 2 the Supreme Judicial Court held that a judge can make the decision as to whether or not the invocation of the privilege against self-incrimination at trial, after testifying before a grand jury, is valid. In other words, a judge does not have to accept the representation of the witness’ lawyer or the witness himself that the privilege exists. Rather, a judge can conduct an in camera hearing to determine whether or not the privilege exists. The in camera hearing is limited in its scope and is recorded for appellate challenges where appropriate.

How Do I Handle This Situation If I Am Representing A Witness

The answer to this is simple. If you believe that your client will testify at trial to something different than that to which he testified before the grand jury. Then, assert the Fifth Amendment privilege and ask for an in camera hearing. Make sure the judge’s inquiry does not exceed the purpose of the hearing.

The Law Offices of Stephen Neyman, PC handles matters like this one. Attorney Stephen Neyman represented the witness in this case and won the case before the Massachusetts Supreme Judicial Court. You can reach our office by calling 617-263-6800 or sending us an email.