(1) Custodial Interrogation. A person has a right to refuse to answer any questions during a custodial interrogation.
(A) No Court Order or Warrant. In the absence of a court order or warrant, evidence of a person’s refusal to provide real or physical evidence, or to cooperate in an investigation ordered by State officials, is not admissible in any criminal proceeding.
(B) Court Order or Warrant. When State officials have obtained a court order or warrant for physical or real evidence, a person’s refusal to provide the real or physical evidence is admissible in any criminal proceeding.
(3) Compelled Examination. A defendant has a right to refuse to answer any questions during a court-ordered examination for criminal responsibility.
(4) At a Hearing or Trial. A defendant has a right to refuse to testify at any criminal proceeding.
(b) Privilege of a Witness. Every witness has a right, in any proceeding, civil or criminal, to refuse to answer a question unless it is perfectly clear, from a careful consideration of all the circumstances, that the testimony cannot possibly have a tendency to incriminate the witness.
(1) Waiver by Defendant’s Testimony. When a defendant voluntarily testifies in a criminal case, the defendant waives his or her privilege against self-incrimination to the extent that the defendant may be cross-examined on all relevant and material facts regarding that case.
(2) Waiver by Witness’s Testimony. When a witness voluntarily testifies regarding an incriminating fact, the witness may thereby waive the privilege against self-incrimination as to subsequent questions seeking related facts in the same proceeding.
(3) Limitation. A waiver by testimony under Subsection (1) or (2) is limited to the proceeding in which it is given and does not extend to subsequent proceedings.
(4) Required Records. A witness may be required to produce required records because the witness is deemed to have waived his or her privilege against self-incrimination in such records. Required records, as used in this subsection, are those records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.
(5) Immunity. In any investigation or proceeding, a witness shall not be excused from testifying or from producing books, papers, or other evidence on the ground that the testimony or evidence required may tend to incriminate the witness or subject him or her to a penalty or forfeiture if the witness has been granted immunity with respect to the transactions, matters, or things concerning which the witness is compelled, after having claimed his or her privilege against self-incrimination, to testify or produce evidence by a justice of the Supreme Judicial Court, Appeals Court, or Superior Court.
Subsection (a). The Fifth Amendment to the Constitution of the United States provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” Similarly, Article 12 of the Declaration of Rights of the Massachusetts Constitution provides that “[n]o subject shall . . . be compelled to accuse, or furnish evidence against himself.” These provisions protect a person from the compelled production of testimonial communications. See Blaisdell v. Commonwealth, 372 Mass. 753, 758–759, 364 N.E.2d 191, 196 (1977). See also Commonwealth v. Brennan, 386 Mass. 772, 776, 438 N.E.2d 60, 63 (1982). When the privilege is applicable, it may be overcome only by an adequate grant of immunity or a valid waiver. Blaisdell v. Commonwealth, 372 Mass. at 761, 364 N.E.2d at 198. Under both Article 12 and the Fifth Amendment, the privilege does not apply to a corporation. Hale v. Henkel, 201 U.S. 43, 74–75 (1906); Matter of a John Doe Grand Jury Investigation, 418 Mass. 549, 552, 637 N.E.2d 858, 860 (1994). Whether the privilege exists, its scope, and whether it has been waived are preliminary questions for the court to decide under Section 104(a), Preliminary Questions: Determinations Made by the Court.
Subsection (a)(1). This subsection is derived from the Fifth Amendment to the United States Constitution and Miranda v. Arizona, 384 U.S. 436, 444 (1966). The Miranda doctrine, including its accompanying exclusionary rule, has been developed and explained in numerous decisions of the United States Supreme Court and the appellate courts of Massachusetts. See K.B. Smith, Criminal Practice and Procedure § 6.12 et seq. (3d ed. 2007).
Subsection (a)(2). This subsection is derived from Commonwealth v. Delaney, 442 Mass. 604, 609–611, 814 N.E.2d 346, 351–353 (2004). The privilege against self-incrimination, under both Federal and State law, protects only against the compelled production of communications or testimony by the government. See Bellin v. Kelley, 48 Mass. App. Ct. 573, 581 n.13, 724 N.E.2d 319, 325 n.13 (2000), and cases cited. It does not prevent the government from forcing a person to produce real or physical evidence, such as fingerprints, photographs, lineups, blood samples, handwriting, and voice exemplars. Commonwealth v. Brennan, 386 Mass. 772, 776–777, 783, 438 N.E.2d 60, 63–64, 67 (1982) (standard field sobriety tests do not implicate the privilege). The privilege against self-incrimination does not forbid the compelled production of certain statements that are necessarily incidental to the production of real or physical evidence. See Commonwealth v. Burgess, 426 Mass. 206, 220, 688 N.E.2d 439, 449 (1997). On the other hand, testimonial evidence which reveals a person’s knowledge or thoughts concerning some fact is protected. Commonwealth v. Brennan, 386 Mass. at 778, 438 N.E.2d at 64–65. In some respects, Article 12 provides greater protections than the Fifth Amendment. See Attorney Gen. v. Colleton, 387 Mass. 790, 796, 444 N.E.2d 915, 919 (1982); Commonwealth v. Hughes, 380 Mass. 583, 595, 404 N.E.2d 1239, 1246 (1980). Compare Braswell v. United States, 487 U.S. 99, 109, 117–118 (1988) (Fifth Amendment privilege not applicable to order requiring custodian of corporate records to produce them even though the records would tend to incriminate the custodian because he is only acting as a representative of the corporation when he responds to the order), with Commonwealth v. Doe, 405 Mass. 676, 678–680, 544 N.E.2d 860, 861–862 (1989) (describing result in Braswell v. United States as a “fiction” and holding that the privilege under Article 12 is fully applicable to protect custodian of corporate records from duty to produce them in circumstances in which act of production would incriminate the custodian as well as the corporation).
In Opinion of the Justices, 412 Mass. 1201, 1208, 591 N.E.2d 1073, 1077 (1992), the Supreme Judicial Court opined that legislation permitting the Commonwealth to offer evidence of a person’s refusal to take a breathalyzer test would violate the privilege against self-incrimination under Article 12 because such evidence reveals the person’s thought processes, i.e., it indicates the person has doubts or concerns about the outcome of the test, and thus constitutes testimonial evidence, the admission of which into evidence would violate the privilege under Article 12 of the Massachusetts Declaration of Rights. Federal law and the law of most other States is to the contrary. See South Dakota v. Neville, 459 U.S. 553, 560–561 (1983). See also Commonwealth v. Conkey, 430 Mass. 139, 142, 714 N.E.2d 343, 348 (1999) (“evidence admitted to show consciousness of guilt is always testimonial because it tends to demonstrate that the defendant knew he was guilty”). The reasoning employed by the Supreme Judicial Court in Opinion of the Justices, 412 Mass. at 1208–1211, 591 N.E.2d at 1077–1078, has been extended to other circumstances in which a person refuses to take a test, or to supply the police with real or physical evidence in the absence of a court order or warrant. See, e.g., Commonwealth v. Conkey, 430 Mass. at 141–143, 714 N.E.2d at 347–348 (evidence of a defendant’s failure to appear at a police station for fingerprinting); Commonwealth v. Hinckley, 422 Mass. 261, 264–265, 661 N.E.2d 1317, 1319–1320 (1996) (evidence of a defendant’s refusal to turn over sneakers for comparison with prints at a crime scene is not admissible); Commonwealth v. McGrail, 419 Mass. 774, 779–780, 647 N.E.2d 712, 715 (1995) (evidence of refusal to submit to field sobriety tests is not admissible); Commonwealth v. Zevitas, 418 Mass. 677, 683, 639 N.E.2d 1076, 1079 (1994) (evidence of refusal to submit to a blood alcohol test under G. L. c. 90, § 24, is not admissible); Commonwealth v. Lydon, 413 Mass. 309, 313–315, 597 N.E.2d 36, 39–40 (1992) (evidence of a defendant’s refusal to let his hands be swabbed for the presence of gunpowder residue is not admissible). See also Commonwealth v. Buckley, 410 Mass. 209, 214–216, 571 N.E.2d 609, 612–613 (1991) (a suspect may be compelled to provide a handwriting exemplar); Commonwealth v. Burke, 339 Mass. 521, 534–535, 159 N.E.2d 856, 864 (1959) (defendant may be required to go to the courtroom floor and strike a pose for identification purposes). Contrast Commonwealth v. Delaney, 442 Mass. 604, 607–612 & n.8, 814 N.E.2d 346, 350–353 & n.8 (2004) (explaining that although a warrant involves an element of compulsion, it leaves the individual with no choice other than to comply unlike the compulsion that accompanies a police request for information or evidence during the investigative stage; therefore, the Commonwealth may offer evidence of a defendant’s resistance to a warrant or court order without violating Article 12).
Subsection (a)(3). This subsection is derived from the Fifth Amendment to the United States Constitution; Article 12 of the Massachusetts Declaration of Rights; G. L. c. 233, § 23B; and Blaisdell v. Commonwealth, 372 Mass. 753, 364 N.E.2d 191 (1977). At any stage of the proceeding, the trial judge may order a defendant to submit to an examination by one or more qualified physicians or psychologists under G. L. c. 123, § 15(a), on the issue of competency or criminal responsibility.
Competency Examinations. A competency examination does not generally implicate a person’s privilege against self-incrimination because it is concerned with whether the defendant is able to confer intelligently with counsel and to competently participate in the trial of his or her case, and not whether he or she is guilty or innocent. See Seng v. Commonwealth, 445 Mass. 536, 545, 839 N.E.2d 283, 290–291 (2005). If the competency examination ordered by the court under G. L. c. 123, § 15(a), results in an opinion by the qualified physician or psychologist that the defendant is not competent, the court may order an additional examination by an expert selected by the Commonwealth. G. L. c. 123, § 15(a). “In the circumstances of a competency examination, G. L. c. 233, § 23B, together with the judge-imposed strictures of [Mass. R. Crim. P.] 14(b)(2)(B), protects the defendant’s privilege against self-incrimination.” Seng v. Commonwealth, 445 Mass. at 548, 839 N.E.2d at 292.
Criminal Responsibility Examination. If a defendant voluntarily submits to an examination on the issue of criminal responsibility by a psychiatrist or a psychologist selected by the defense and decides to offer evidence at trial based on statements made during such an examination, the defendant must give advance notice to the Commonwealth and may be required to submit to an examination and answer questions by an expert selected by the Commonwealth under a special procedure devised by the Supreme Judicial Court in Blaisdell v. Commonwealth, 372 Mass. 753, 364 N.E.2d 191 (1977), and codified in Mass. R. Crim. P. 14(b)(2), whereby the defendant’s statements to the court-ordered examiner are not disclosed to the Commonwealth until the defendant offers evidence at trial based on those statements. In Blaisdell v. Commonwealth, 372 Mass. at 766–769, 364 N.E.2d at 200–202, the Supreme Judicial Court held that this procedure was adequate to safeguard the defendant’s privilege against self-incrimination.
Subsection (a)(4). This subsection is derived from the Fifth Amendment to the United States Constitution; Article 12 of the Massachusetts Declaration of Rights; and G. L. c. 233, § 20, Third. Generally, in determining the existence of the privilege, the judge is not permitted to pierce the privilege. See Section 104(a), Preliminary Questions: Determinations Made by the Court. This privilege is not self-executing. See Commonwealth v. Brennan, 386 Mass. 772, 780, 438 N.E.2d 60, 65 (1982).
Subsection (b). This subsection is derived from the Fifth Amendment to the United States Constitution; Article 12 of the Massachusetts Declaration of Rights; Wansong v. Wansong, 395 Mass. 154, 157–158, 478 N.E.2d 1270, 1272 (1985) (civil proceeding); and Commonwealth v. Baker, 348 Mass. 60, 62–63, 201 N.E.2d 829, 831–832 (1964) (criminal proceeding). See also Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) (“The [Fifth] Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”). The test used to determine whether an answer might incriminate the witness is the same under both Federal and State law. See Malloy v. Hogan, 378 U.S. 1, 11 (1964). See also Commonwealth v. Lucien, 440 Mass. 658, 665, 801 N.E.2d 247, 254 (2004); Commonwealth v. Funches, 379 Mass. 283, 289, 397 N.E.2d 1097, 1100 (1979). Also, under both Federal and State law, a public employee cannot be discharged or disciplined solely because the employee asserts his or her privilege against self-incrimination in response to questions by the public employer. Furtado v. Plymouth, 451 Mass. 529, 530 n.2, 888 N.E.2d 357, 358 n.2 (2008). In Furtado, the Supreme Judicial Court interpreted the “criminal investigations” exception to G. L. c. 149, § 19B, which forbids the use of lie detector tests in the employment context except in very limited circumstances, as permitting a police chief to require a police officer under departmental investigation to submit to a lie detector test as a condition of his continued employment on grounds that there was an investigation of possible criminal activity, even though the police officer had been granted transactional immunity and could not be prosecuted criminally for that conduct. Id. at 532–538, 888 N.E.2d at 359–364. Unlike other testimonial privileges, the privilege against self-incrimination should be liberally construed in favor of the person claiming it. Commonwealth v. Koonce, 418 Mass. 367, 378, 636 N.E.2d 1305, 1311 (1994). This privilege is not self-executing. See Commonwealth v. Brennan, 386 Mass. 772, 780, 438 N.E.2d 60, 65 (1982).
Martin Hearing. Whenever a witness or the attorney for a witness asserts the privilege against self-incrimination, the judge “has a duty to satisfy himself that invocation of the privilege is proper in the circumstances.” Commonwealth v. Martin, 423 Mass. 496, 503, 668 N.E.2d 825, 831 (1996). The mere assertion of the privilege is not sufficient. The witness or counsel must show “a real risk” that answers to the questions will tend to indicate “involvement in illegal activity,” as opposed to “a mere imaginary, remote or speculative possibility of prosecution.” Id. at 502, 668 N.E.2d at 830. If the court is unable to make the required finding that a basis exists for the assertion of the privilege, it may conduct an in camera hearing (hereafter “Martin hearing”) and require the witness to “open the door a crack.” Id. at 504–505, 668 N.E.2d at 832, quoting In re Brogna, 589 F.2d 24, 28 n.5 (1st Cir. 1978). “A witness also is not entitled to make a blanket assertion of the privilege. The privilege must be asserted with respect to particular questions, and the possible incriminatory potential of each proposed question, or area which the prosecution might wish to explore, must be considered.” Commonwealth v. Martin, 423 Mass. 496, 502, 668 N.E.2d 825, 830 (1996). If, however, it is apparent that most, if not all, of the questions will expose the witness to self-incrimination, and there is no objection, it is not necessary for the witness to assert the privilege as to each and every question. Commonwealth v. Sueiras, 72 Mass. App. Ct. 439, 445–446, 892 N.E.2d 768, 774–775 (2008).
Regarding the appropriate use of a Martin hearing, the Supreme Judicial Court has stated as follows:
“We emphasize that a Martin hearing should be conducted only as an exception to the general rule that the judge’s verification of the validity of the privilege be based on information provided in open court. Indeed, before a Martin hearing is conducted, the judge should invite the parties to provide the court with information that may shed light on whether the witness’s testimony, both on direct and cross-examination, could possibly tend to incriminate him. Only in those rare circumstances where this information is inadequate to allow the judge to make an informed determination should the judge conduct an in camera Martin hearing with the witness to verify the claim of privilege.” (Citation omitted.)
Pixley v. Commonwealth, 453 Mass. 827, 833, 906 N.E.2d 320, 326 (2009).
“A defendant has no right to be part of the process in which a witness’s claim of a Fifth Amendment privilege is considered. The hearing is held for reasons totally independent of the proceeding against the defendant, and the privilege is that of the witness.” Commonwealth v. Clemente, 452 Mass. 295, 318, 893 N.E.2d 19, 40 (2008). “[A] defendant has no constitutional right to the testimony of a defense witness who invokes his privilege against self-incrimination.” Pixley v. Commonwealth, 453 Mass. at 834, 906 N.E.2d at 326 (“[A] witness’s valid assertion of the Fifth Amendment privilege against self-incrimination trumps a defendant’s right to call the witness.”).
“A person may not seek to obtain a benefit or to turn the legal process to his advantage while claiming the privilege as a way of escaping from obligations and conditions that are normally incident to the claim he makes.” Mello v. Hingham Mut. Fire Ins. Co., 421 Mass. 333, 338, 656 N.E.2d 1247, 1250 (1995) (party seeking to recover insurance benefits as a result of a fire loss properly had summary judgment entered against him for refusing to submit to an examination required by his policy on grounds that his answers to questions would tend to incriminate him). See also Department of Revenue v. B.P., 412 Mass. 1015, 1016, 593 N.E.2d 1305, 1306 (1992) (in paternity case, court may draw adverse inference against party who asserts the privilege and refuses to submit to blood and genetic marker testing); Wansong v. Wansong, 395 Mass. at 157–158, 478 N.E.2d at 1272–1273 (discovery sanction). In addition, the court has discretion to reject claims by parties that they are entitled to continuances of administrative proceedings or civil trials until after a criminal trial because they will not testify for fear of self-incrimination. See Oznemoc, Inc. v. Alcoholic Beverages Control Comm’n, 412 Mass. 100, 105, 587 N.E.2d 751, 754–755 (1992); Kaye v. Newhall, 356 Mass. 300, 305–306, 249 N.E.2d 583, 586 (1969). Whenever a court faces a decision about the consequence of a party’s assertion of the privilege in a civil case, “the judge’s task is to balance any prejudice to the other civil litigants which might result . . . against the potential harm to the party claiming the privilege if he is compelled to choose between defending the civil action and protecting himself from criminal prosecution” (citations and quotations omitted). Wansong v. Wansong, 395 Mass. at 157, 478 N.E.2d at 1272.
The existence of the privilege against self-incrimination does not shield a witness, other than a defendant in a criminal case, from being called before the jury to give testimony. See Kaye v. Newhall, 356 Mass. at 305, 249 N.E.2d at 586. The trial judge has discretion to deny a defense request for process to bring an out-of-State witness back for trial based on evidence that there is a factual basis for the witness to assert his or her privilege against self-incrimination and a representation by the witness’s attorney that the witness will invoke his or her privilege if called to testify. Commonwealth v. Sanders, 451 Mass. 290, 294–295, 885 N.E.2d 105, 111–112 (2008). The assertion of the privilege by a party or a witness in a civil case may be the subject of comment by counsel, and the jury may be permitted to draw an adverse inference against a party as a result. See Section 525(a), Comment upon or Inference from Claim of Privilege: Civil Case.
Subsection (c)(1). This subsection is derived from Jones v. Commonwealth, 327 Mass. 491, 493, 99 N.E.2d 456, 457 (1951). In such a case, the cross-examination is not limited to the scope of direct examination and may include inquiry about any matters that may be made the subject of impeachment. See, e.g., G. L. c. 233, § 21; Commonwealth v. Seymour, 39 Mass. App. Ct. 672, 675, 660 N.E.2d 679, 681 (1996).
Subsection (c)(2). This subsection is derived from Taylor v. Commonwealth, 369 Mass. 183, 189–191, 338 N.E.2d 823, 827–828 (1975). Though a witness may waive the privilege against self-incrimination as to subsequent questions by voluntarily testifying regarding an “incriminating fact,” if a question put to the witness poses “a real danger of legal detriment,” i.e., the answer might provide another link in the chain of evidence leading to a conviction, the witness may still have a basis for asserting the privilege against self-incrimination. See Commonwealth v. Funches, 379 Mass. 283, 290–291 & nn.8–10, 397 N.E.2d 1097, 1101 & nn.8–10 (1979). In Commonwealth v. King, 436 Mass. 252, 258 n.6, 763 N.E.2d 1071, 1078 n.6 (2002), the Supreme Judicial Court explained the scope of this doctrine by stating that “[t]he waiver, once made, waives the privilege only with respect to the same proceeding; the witness may once again invoke the privilege in any subsequent proceeding.” See Commonwealth v. Martin, 423 Mass. 496, 500–501, 668 N.E.2d 825, 829–830 (1996) (waiver of privilege before grand jury does not waive privilege at trial); Commonwealth v. Borans, 388 Mass. 453, 457–458, 446 N.E.2d 703, 705–706 (1983) (same). A voir dire hearing, held on the day of trial, is the same proceeding as the trial for purposes of the doctrine of waiver by testimony. Luna v. Superior Court, 407 Mass. 747, 750–751, 533 N.E.2d 881, 883, cert. denied, 498 U.S. 939 (1990) (privilege could not be claimed at trial where witness had submitted incriminating affidavit in connection with pretrial motion and testified at pretrial hearing); Commonwealth v. Penta, 32 Mass. App. Ct. 36, 45–46, 586 N.E.2d 996, 1002 (1992) (witness who testified at motion to suppress, recanted that testimony in an affidavit, and testified at hearing on motion to reconsider could not invoke the privilege at trial). See also Commonwealth v. Judge, 420 Mass. 433, 445 n.8, 650 N.E.2d 1242, 1250 n.8 (1995) (hearing on motion to suppress is same proceeding as trial for purposes of waiver by testimony).
The trial judge may be required to caution a witness exhibiting “ignorance, confusion, or panic . . . or other peculiar circumstances” in order for a voluntary waiver to be established. Taylor v. Commonwealth, 369 Mass. at 192, 338 N.E.2d at 829. The proper exercise of this judicial discretion “involves making a circumstantially fair and reasonable choice within a range of permitted options.” Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746, 748–749, 785 N.E.2d 1285, 1288 (2003). Ultimately, whether a voluntary waiver has occurred is a question of fact for the trial judge. See Commonwealth v. King, 436 Mass. at 258–259, 763 N.E.2d at 1078.
Subsection (c)(3). This subsection is derived from Taylor v. Commonwealth, 369 Mass. 183, 190–191, 338 N.E.2d 823, 828 (1975). See also Commonwealth v. Martin, 423 Mass. 496, 500, 668 N.E.2d 825, 829 (1996) (grand jury proceedings and the defendant’s subsequent indictment are separate proceedings); Commonwealth v. Johnson, 175 Mass. 152, 153, 55 N.E. 804, 804 (1900); Commonwealth v. Mandile, 17 Mass. App. Ct. 657, 662, 461 N.E.2d 838, 841 (1984).
Subsection (c)(4). This subsection is derived from Stornanti v. Commonwealth, 389 Mass. 518, 521–522, 451 N.E.2d 707, 710 (1983) (“The required records exception applies when three requirements are met: First, the purposes of the State’s inquiry must be essentially regulatory; second, information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept; and third, the records themselves must have assumed ‘public aspects’ which render them at least analogous to public documents” [quotations and citation omitted].). See also Matter of Kenney, 399 Mass. 431, 438–441, 504 N.E.2d 652, 656–658 (1987) (court notes that if the records in question are required to be kept by lawyers there is nothing incriminating about the fact that they exist and are in the possession of the lawyer required to produce them).
Subsection (c)(5). This subsection is derived from Article 12 of the Massachusetts Declaration of Rights; G. L. c. 233, § 20C; and Attorney Gen. v. Colleton, 387 Mass. 790, 796–801, 444 N.E.2d 915, 919–921 (1982), quoting and citing Emery’s Case, 107 Mass. 172, 185 (1871) (Article 12 requires transactional and not merely use or derivative use immunity to overcome the privilege against self-incrimination). See also G. L. c. 233, §§ 20D–20I (statutes governing the granting of immunity); Commonwealth v. Austin A., 450 Mass. 665, 669–670, 881 N.E.2d 117, 121–122 (2008) (grant of immunity in Superior Court applicable to testimony in Juvenile Court). The Federal Constitution only requires use immunity to overcome the privilege against self-incrimination. See Kastigar v. United States, 406 U.S. 441 (1972).