Section 1104. Witness Cooperation Agreements

In a criminal case in which there is a written agreement between the Commonwealth and a witness in which the Commonwealth makes a promise to the witness in relation to the charges or the sentence in exchange for the testimony of the witness at trial, the use and admission of the agreement by the Commonwealth at trial is within the discretion of the trial judge subject to the following guidelines:

(a) On direct examination, the prosecution may properly bring out the fact that the witness has entered into a plea agreement and that the witness generally understands his or her obligations under it.

(b) The agreement itself is admissible. The timing of the admission of the agreement is within the judge’s discretion. The judge may defer admission of the agreement until redirect examination, after the defendant has undertaken to impeach the witness’s credibility by showing that the witness had struck a deal with the prosecution in order to obtain favorable treatment.

(c) References to a witness’s obligation to tell the truth, any certification or acknowledgment by his or her attorney, and any provision that suggest that the Commonwealth has special knowledge as to the veracity of the witness’s testimony should be redacted from the agreement, on request.

(d) Questions by the prosecutor about the duty of the witness to tell the truth and the reading of the agreement are not permitted until redirect examination and after the witness has been cross-examined on the matter.

(e) Care must be taken by the Commonwealth not to suggest, by questions or argument, that it has knowledge of the credibility of the witness independent of the evidence.

(f) The trial judge must instruct the jury by focusing their attention on the particular care they should give in evaluating testimony given pursuant to a plea agreement that is contingent on the witness’s telling the truth.

NOTE

Subsections (a) and (b). These subsections are taken nearly verbatim from Commonwealth v. Ciampa, 406 Mass. 257, 264, 547 N.E.2d 314, 319 (1989). See also Commonwealth v. Rivera, 430 Mass. 91, 96, 712 N.E.2d 1127, 1132 (1999).

Subsection (c). This subsection is derived from Commonwealth v. Conkey, 430 Mass. 139, 147, 714 N.E.2d 343, 351 (1999), and Commonwealth v. Ciampa, 406 Mass. 257, 261–262, 547 N.E.2d 314, 318 (1989).

Subsections (d) and (e). These subsections are derived from Commonwealth v. Rivera, 430 Mass. 91, 96–97, 712 N.E.2d 1127, 1132 (1999), and Commonwealth v. Ciampa, 406 Mass. 257, 264–265, 547 N.E.2d 314, 319–320 (1989).

Subsection (f). This subsection is derived from Commonwealth v. Ciampa, 406 Mass. 257, 266, 547 N.E.2d 314, 321 (1989), and Commonwealth v. Asmeron, 70 Mass. App. Ct. 667, 675, 875 N.E.2d 870, 876 (2007). See Commonwealth v. Meuse, 423 Mass. 831, 832, 673 N.E.2d 546, 546–547 (1996) (reversible error where prosecutor vouched for witness testifying pursuant to plea agreement and judge failed to give Ciampa-type instruction); Commonwealth v. Daye, 411 Mass. 719, 739–740, 587 N.E.2d 194, 206 (1992) (no special instruction necessary as it did not appear that evidence presented realistic possibility that jury would believe witness’s testimony based on her agreement to tell truth); Commonwealth v. Colon, 408 Mass. 419, 445, 558 N.E.2d 974, 990 (1990) (no special instructions necessary where plea agreement does not condition immunization on truthfulness).

General Application. The above guidelines also apply to nonbinding pretrial “agreements.” See Commonwealth v. Davis, 52 Mass. App. Ct. 75, 78–79 & n.7, 751 N.E.2d 420, 423 & n.7 (2001) (holding that Ciampa’s prophylactic measures are applicable in circumstances in which Commonwealth witness testified that, after he was charged with distribution of marijuana, he agreed to help police arrest others involved in illegal sale of drugs in exchange for nonspecific “consideration” from prosecution). A defendant has the right to bring to the attention of the jury any “quid pro quo” agreement between the prosecution and a testifying witness, whether formal or informal, written or unwritten. See id. at 78 n.7, 751 N.E.2d at 423 n.7; Commonwealth v. O’Neil, 51 Mass. App. Ct. 170, 179, 744 N.E.2d 86, 92 (2001).

In Commonwealth v. Prater, 431 Mass. 86, 98, 725 N.E.2d 233, 244 (2000), the Supreme Judicial Court indicated that the “better practice” is for the trial judge to include in the cautionary instruction a warning that the jury should not consider an accomplice’s guilty plea as evidence against the defendant.

An agreement that obligates a witness to testify to some particular version of the facts in exchange for a charge or sentence concession would be grounds for a motion to preclude the testimony or to strike it. See Commonwealth v. Ciampa, 406 Mass. 257, 261 n.5, 547 N.E.2d 314, 318 n.5 (1989) (“Testimony pursuant to a plea agreement made contingent on obtaining . . . a conviction, as a result of the witness’s testimony, would presumably present too great an inducement to lie, [and] would not meet the test of fundamental fairness.”). See also Commonwealth v. Colon-Cruz, 408 Mass. 533, 553, 562 N.E.2d 797, 811 (1990) (“[W]e do not condone the use of agreements which do not require a witness to tell the truth. Such agreements are antithetical to the fair administration of justice. . . . [F]uture plea agreements [should] be drafted so as to make the obligation to testify truthfully clear to the witness[.]”).

Cross-Reference: Section 611(b)(2), Manner and Order of Interrogation and Presentation: Scope of Cross-Examination: Bias and Prejudice.