Appeals Court, June 21, 2012

A defendant is entitled to a specific jury instruction that testimony from a paid police informant should be subjected to a higher degree of scrutiny than testimony from other witnesses.

It is error for a prosecutor, during closing argument, to criticize or to invite the jury to draw an adverse inference from the defendant’s decision to offer witness testimony at trial.

The defendant was convicted on two counts of cocaine distribution, both as subsequent offenses.  At trial, a paid police informant who made controlled drug purchases from the defendant testified as a witness for the Commonwealth.  The defendant presented two alibi witnesses in an effort to demonstrate that he was elsewhere during the time the drugs were sold to the informant. 

During closing argument, the defense counsel stated that the informant provided “the only evidence that it was [the defendant] who sol her cocaine.”  Defense counsel urged the jury not to credit the informant’s testimony because of “her possible bias in wanting to please the police so she could continue to work with them, so she could continue to receive money from them.”  During his closing argument, the prosecutor stated that the defendant did not have an obligation to present evidence.  He further commented on the defendant’s decision to call alibi witnesses, stating “If my case was so bad, he could have sat back . . . .But he went ahead and put on witnesses.” 

While the defendant did not object to the closing argument, he did request that the judge instruct the jury that they should us “greater care” in evaluating the testimony of a witness who was receiving “promises, rewards or inducements” in exchange for her testimony.  The judge declined to give the requested instruction and the defendant objected.

Jury Instruction

The Court acknowledged that paid informants play an important role in helping police and that receiving compensation does not mean that their testimony is unreliable.  “The narrow question before us is whether the defendant was entitled to a specific jury instruction that testimony from a witness who is paid by the government in return for her participation in the case should be subjected to a higher degree of scrutiny than testimony from other witnesses.”

The Court considered Commonwealth v. Luna, 410 Mass. 131 (1991), and Commonwealth v. Miranda, 458 Mass. 100 (2010), cert. denied, 132 S. Ct. 548 (2011).  In Luna, the informant wanted a “finder’s fee” from the sale of the defendant’s forfeited home.  The Court declared that “[i]n the future, a specific instruction that the jury weigh such a witness’s testimony with care should be given on request.”  In Miranda, the Court considered a testimony fee payment arrangement used by a reward program that paid money for information that helped lead to an indictment in an unsolved murder, with additional money to be paid if the information led to a conviction.  The SJC expressly noted that the judge “instruct[ed] the jury about the heightened scrutiny to be given testimony provided under a fee payment arrangement.”  In this case, the Court concluded that, absent further direction from the SJC, the defendant was entitled to his requested instruction that the jury must use particular care in weighing the informant’s testimony. 

Closing Argument

In his closing argument, the prosecutor suggested to the jury that he had a strong case because the defendant presented alibi witnesses even though he had no obligation to do so.  Noting that the defendant has a right to present a defense, the Court found that it was an error “to disparage, or to invite the jury to draw an adverse inference from, the mere exercise of such a fundamental right.”

The Court reversed the judgments, set aside the verdicts and ordered a new trial.