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.