Except as otherwise provided by constitution, statute, rules promulgated by the Supreme Judicial Court, or the common law, no person has a privilege to
(a) refuse to be a witness,
(b) refuse to disclose any matter,
(c) refuse to produce any object or writing, or
(d) prevent another from being a witness or disclosing any matter or producing any object or writing.
This section, which is taken nearly verbatim from Proposed Mass. R. Evid. 501, reflects Massachusetts practice. Subsections (a), (b), and (c) follow the “longstanding principle that the public . . . has a right to every man’s evidence” (quotations omitted). Matter of Roche, 381 Mass. 624, 633, 411 N.E.2d 466, 473 (1980). See also G. L. c. 233, § 20 (“[a]ny person of sufficient understanding, although a party, may testify in any proceeding, civil or criminal, in court or before a person who has authority to receive evidence”).
“A witness may not decline to respond to a proper question on the ground that his answer might embarrass him (or another). . . . Nor can fear of harm to the witness generally be offered as an excuse for declining testimony. Relief of witnesses on this ground would encourage intimidation of those in possession of information and proclaim a sorry confession of weakness of the rule of law” (citation omitted).
Commonwealth v. Johnson, 365 Mass. 534, 543–544, 313 N.E.2d 571, 577 (1974). Subsection (d) is derived from Commonwealth v. Edwards, 444 Mass. 526, 536, 830 N.E.2d 158, 168 (2005) (“forfeiture by wrongdoing” doctrine adopted).
The Supreme Judicial Court has the power to create privileges under the common law. Babets v. Secretary of Human Servs., 403 Mass. 230, 234, 526 N.E.2d 1261, 1264 (1988). However, the creation of a new privilege or the expansion of an existing privilege is usually left to the Legislature, which is better equipped to weigh competing social policies or interests. Matter of a Grand Jury Subpoena, 430 Mass. 590, 597–598, 722 N.E.2d 450, 455–456 (2000).
Address of Witness. A party seeking to elicit information about the home or employment address of a witness must demonstrate that the information is relevant in accordance with Section 402, Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible. However, “the very starting point in exposing falsehood and bringing out the truth through cross-examination must necessarily be to ask the witness who he is and where he lives” (quotations and citation omitted). Smith v. Illinois, 390 U.S. 129, 131 (1968). Nonetheless, such evidence may be excluded if the trial judge makes a preliminary finding that any relevance is outweighed by the risks to the safety of the witness. See Commonwealth v. McGrath, 364 Mass. 243, 250–252, 303 N.E.2d 108, 113–114 (1973). In a criminal case, the trial judge must weigh the safety concerns of the witness against the defendant’s right to confrontation. See McGrath v. Vinzant, 528 F.2d 681, 685 (1st Cir. 1976). A witness’s general concerns for privacy or personal safety, without more, are not sufficient to overcome the defendant’s right to confrontation under Article 12 of the Massachusetts Declaration of Rights and the Sixth Amendment. See Commonwealth v. Johnson, 365 Mass. 534, 544–547, 313 N.E.2d 571, 577–579 (1974). See also Commonwealth v. Francis, 432 Mass. 353, 357, 734 N.E.2d 315, 321 (2000) (In a murder case, Supreme Judicial Court relied on McGrath and upheld trial judge’s ruling that “defense counsel could ask Rodriguez whether he was engaged in an occupation other than selling drugs, but not his specific employment or his employment address, and whether he now lived in western Massachusetts or in Connecticut, but not his city of residence or residential address. He also prohibited defense counsel from investigating these matters.”); Commonwealth v. Righini, 64 Mass. App. Ct. 19, 25–26 n.5, 831 N.E.2d 332, 337 n.5 (2005) (relying on reasoning of McGrath to explain why criminal defendants are ordinarily not entitled to obtain dates of birth of police witnesses). The existence of valid safety concerns on the part of a witness may be inherent in the nature of the criminal charges. Commonwealth v. Francis, 432 Mass. at 358 n.3, 734 N.E.2d at 322 n.3.