Commonwealth v. Leclair, 469 Mass. 777 (2014)
On May 2, 2012 the defendant was arraigned on charges of assault and battery, following an incident between him and his girlfriend that occurred earlier that day at Matthew Sheehan’s (“Sheehan”) apartment. The case went to trial on August 1, 2012, and it was on that day that the Commonwealth first disclosed its intent to call Sheehan as a witness. The judge appointed an attorney to represent Sheehan and to counsel him regarding the potential assertion of his Fifth Amendment privilege against self-incrimination. After consulting with Sheehan about the questions he could expect upon examination, his attorney informed the court that Sheehan intended to invoke his privilege. Sheehan sought to assert this privilege in order to refuse answering questions that might expose him to criminal charges for possession of a controlled substance and conspiracy to violate the drug laws. After an in camera hearing on this issue, the judge ruled that Sheehan would not be permitted to invoke this privilege. As grounds for this ruling, the judge stated that Sheehan failed to demonstrate that he faced an actual risk that his testimony would “tend to indicate involvement in illegal activity, as opposed to a mere imaginary, remote, or speculative possibility of prosecution.”
The case proceeded to trial and Sheehan took the stand as the first witness. During the cross-examination, defense counsel posed questions to Sheehan regarding his use of illegal drugs on the night of the incident. Sheehan responded by invoking his privilege against self-incrimination. The judge then instructed Sheehan to answer the question at which time Sheehan testified that he had used cocaine that night. Defense counsel then proceeded to ask Sheehan further questions regarding his cocaine use. Despite the judge’s prior instruction, Sheehan responded each time by invoking his Fifth Amendment privilege and refusing to answer, as instructed by his attorney.
The judge warned Sheehan that a refusal to respond on the improper assertion of the Fifth Amendment privilege could lead to criminal contempt or sanctions. At this time, Sheehan’s counsel informed the judge that she had advised her client not to testify and to continue to so refuse on self-incrimination grounds. Sheehan’s attorney also requested a stay of criminal sanction, arguing that if it was determined on appeal that Sheehan had no valid grounds to invoke this privilege, he would testify immediately and “purge the contempt.” However, the judge declined to grant such a stay, and renewed his warning of the possibility of an immediate sanction of incarceration if Sheehan continued to refuse to testify. Sheehan also sought immunity from the prosecution for his drug use, but was only offered an oral assurance and written statement that the Commonwealth had no present or future interest in prosecuting Sheehan for such use based upon his testimony. Despite this offer and the risks, Sheehan’s counsel informed the court that Sheehan would continue to assert his privilege. The judge then warned Sheehan directly of the possibility of facing incarceration and fines if he responded in the manner in which his attorney had stated.
Despite the warnings, on continuance of the examination, Sheehan again declined to answer questions regarding his drug use on Fifth Amendment grounds. The judge immediately held Sheehan in contempt for his “mistaken claim of the Fifth Amendment privilege” and ordered that he be incarcerated for ninety days, pending the resolution of the interlocutory appeal.
II. Procedural History
After Sheehan was held in contempt, he filed a motion for reconsideration of the order, which was denied. Sheehan then appealed the contempt ruling and sentence to the Massachusetts Appeals Court. The matter was then transferred to the Supreme Judicial Court (“SJC”) for consideration on their own motion.
III. Question Presented
The SJC considered two main questions: (1) whether Sheehan was justified in invoking his Fifth Amendment and Article 12 of the Massachusetts Declaration of Rights privilege against self-incrimination; and, if so (2) whether the contempt order was proper. An ancillary question considered by the court was whether Sheehan had waived his Fifth Amendment privilege by responding to the answers.
IV. Reasoning and Analysis
In considering questions regarding claims of privilege, the court applies the federal standard. The federal standard dictates that the Fifth Amendment privilege against self-incrimination should be liberally construed in favor of the person asserting the privilege in order to allow for broad protection under this fundamental principle. Specifically, the Court states that this privilege must be upheld whenever invoked, “unless it is perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency to incriminate.”
In determining whether the privilege was appropriately invoked, the court looks to the nature of the testimony called for in the questions and whether it has the potential to incriminate the witness. A witness’s invocation of the privilege is considered justified whenever the witness “reasonably believes that the testimony could be used in a criminal prosecution or could lead to other evidence that might so be used.” This is true whether or not the judge believes the witness’s motive for not testifying.
Applying this standard to Sheehan, the Court found that the questions posed to him regarding his use of illegal drugs provided more than sufficient grounds for him to invoke his Fifth Amendment privilege. The Court found that had Sheehan truthfully responded to this nature of questioning, he would have placed himself at risk of being linked to criminal activity for which he could be prosecuted, regardless of whether the testimony itself would be sufficient for an actual conviction. Further, the Court determined that the Commonwealth’s promise not to prosecute Sheehan did not render his invocation unjustified because whether an actual prosecution would result is not relevant to the consideration of the use of the privilege. As such, the Court held that Sheehan’s refusal to testify on Fifth Amendment grounds was justified and that the contempt order was improper.
The Court also rejected the argument that Sheehan waived the protection of the privilege by answering two of the questions during cross-examination. The Court held that there was no such waiver because Sheehan responded only after the judge instructed him to, and because Sheehan had invoked the privilege multiple times prior to his response.
The Court held that Sheehan validly invoked his right against self-incrimination, he should not have been compelled to testify, any response did not constitute a waiver, and the contempt order was improper.