Supreme Judicial Court (May 19, 2009)

In determining on appeal whether a judge erred in finding that a witness had a valid 5th Amendment privilege against self-incrimination, the sealed Martin hearing transcript may only be disclosed to an appellate court on appellate review. Further disclosure of the transcript to either defense counsel or the defendant is prohibited by the 5th Amendment and Article 12 of the Massachusetts Declaration of Rights.

The defendant, along with another (Gillum), was involved in an undercover drug sale. Gillum pled guilty to various charges and was sentenced. The defendant went to trial and attempted to summons Gillum to testify as a witness. Gillum's attorney informed the court that Gillum would invoke his privilege against self-incrimination, and an in camera Martin hearing was held. The judge determined that Gillum had a valid privilege and excused him as a witness over the defendant's objection.

The defendant was convicted after trial. Represented by new counsel, the defendant filed an appeal in the Appeals Court. The in camera Martin hearing was impounded and therefore, was omitted from the trial transcript given to the parties. The defendant filed a motion for access to the transcript of the Martin hearing. The Superior Court allowed the defendant's appellate counsel to read the impounded transcript but forbade her from taking notes or making copies. After reviewing the impounded transcript, defense counsel determined that there was an appellate issue regarding the judge's Fifth Amendment ruling and filed two motions. The first was to transfer the impounded transcript to the Appeals Court, which was allowed by the Superior Court. The second, for permission to copy the transcript and share its contents with the defendant, and disclose it in an appellate brief, was the subject of a hearing held by at Superior Court judge, which was denied. The defendant filed a c. 211, §3 on the second motion which was denied and the defendant appealed the single justice's denial of his petition seeking further access to the impounded transcript.

The SJC recognized that the defendant's petition presented a constitutional question of first impression. When a judge rules that a defense witness has a valid privilege against self-incrimination and excuses him from testifying, the defendant, after conviction, has standing to challenge the merits of the judge's ruling in his direct appeal. The defendant argued that his right to challenge the judge's ruling on appeal as clear error or an abuse of discretion is hollow without further allowing him to use the content of the impounded transcript in his impounded brief. The SJC disagreed, concluding that a witness's valid assertion of the 5th Amendment privilege against self-incrimination trumps a defendant's right to call the witness:

"A Martin hearing poses the unique situation of compelling
potentially incriminating testimony from a reluctant witness for the sole purpose of determining whether the witness has a valid privilege against self-incrimination. Having compelled such testimony, the court has an obligation to ensure that the compelled testimony not be used in any way, directly or indirectly, against the witness in any criminal case. . . . We
decide here that the more limited determination on appeal of whether the judge erred in finding a valid privilege can adequately be made by the appellate Justices alone, without further disclosure to the parties."