Mass. R. Evid. 511
Mass. Guid. Evid. 511
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 (1977). See also Commonwealth v. Brennan, 386 Mass. 772, 776 (1982). When the privilege is applicable, it may be overcome only by an adequate grant of immunity or a valid waiver. Blaisdell, 372 Mass. at 761. 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 (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: In General.
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 E.B. Cypher, Criminal Practice and Procedure § 7.13 et seq. (4th ed. 2014). "[E]vidence of a criminal defendant's postarrest, post-Miranda silence cannot be used for the substantive purpose of permitting an inference of guilt." Commonwealth v. Mahdi, 388 Mass. 679, 694 (1983). See Doyle v. Ohio, 426 U.S. 610, 619 (1976). The limited exceptions where evidence of a defendant's postarrest, post-Miranda silence may be admissible include to
"explain[] why a police interview of the defendant abruptly ended [when] the jury would be confused without the explanation; rebut[] the defendant's suggestion at trial that some impropriety on the part of the police prevented him from completing his statement to them; and rebut[] a claim by the defendant that he had given the police at the time of his arrest the same exculpatory explanation as he was presenting to the jury at trial" (citations omitted).
Commonwealth v. Letkowski, 469 Mass. 603, 611-612 (2014).
A waiver of the right against self-incrimination during a custodial interrogation is valid even if the warning does not precisely follow the language of the Miranda decision, so long as the warning, considered in its entirety, adequately conveys the substance of Miranda . See Commonwealth v. LaJoie, 95 Mass. App. Ct. 10, 15-17 (2019) (Warning the defendant "you have the right to an attorney" and if you cannot afford an attorney one will be appointed "prior to any questioning" adequately conveyed that the defendant had the right "to the presence" of an attorney during questioning. The court declined to extend the protections of the Massachusetts Declaration of Rights beyond the requirements of the Fifth Amendment.).
Preference for Recording Certain Custodial Interrogations. Where the prosecution presents evidence of an unrecorded confession or statement made during a custodial interrogation, a criminal defendant is entitled, upon request, to a jury instruction advising that the State's highest court has expressed a preference that a custodial interrogation in a place of detention be recorded "whenever practicable." Commonwealth v. DiGiambattista, 442 Mass. 423, 447 (2004). In such a case, the jury should be instructed to weigh the evidence of the defendant's statement "with great caution and care" and be advised that "the absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt." Id. at 447-448. The defendant has the right to refuse to have the interrogation recorded. Commonwealth v. Tavares, 81 Mass. App. Ct. 71, 73 (2011). The Commonwealth also has the right to introduce evidence that the defendant refused to have the interrogation recorded, even in circumstances where the defendant does not challenge the voluntariness of the statement or make an issue of the lack of a recording. Commonwealth v. DaSilva, 471 Mass. 71, 80 (2015). The defendant is entitled to a DiGiambattista instruction even where a recording was not made, was interrupted, or ceased at the defendant's request. Commonwealth v. Santana, 477 Mass. 610, 623-624 (2017). The DiGiambattista instruction may include reference to the defendant's decision not to have a custodial statement recorded. See Commonwealth v. Rousseau, 465 Mass. 372, 391-393 (2013). The Supreme Judicial Court has, however, stated that "the better practice is not to instruct juries that defendants have a 'right' to refuse recording." Commonwealth v. Alleyne, 474 Mass. 771, 785 (2016). The DiGiambattista rule does not apply when the police station interview of the defendant is noncustodial. See, e.g., Commonwealth v. Issa, 466 Mass. 1, 19-21 (2013).
Regarding situations where an interpreter is used to translate a defendant's custodial statements, in Commonwealth v. AdonSoto, 475 Mass. 497, 507 (2016), the Supreme Judicial Court stated, citing DiGiambattista, as follows: "We now announce a new protocol .... Going forward, and where practicable, we expect that all interviews and interrogations using interpreter services will be recorded."
Cross-Reference: Section 604, Interpreters.
Subsection (a)(2). This subsection is derived from Commonwealth v. Delaney, 442 Mass. 604, 609-611 (2004), and from Commonwealth v. Jones, 477 Mass. 307, 326-328 (2017). The privilege against self-incrimination, under both Federal and State law, protects only against the production of communications or testimony compelled by the government. See Bellin v. Kelley, 48 Mass. App. Ct. 573, 581 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 (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 (1997). On the other hand, testimonial evidence which reveals a person's knowledge or thoughts concerning some fact is protected. Brennan, 386 Mass. at 778. In some respects, Article 12 provides greater protections than the Fifth Amendment. See Attorney Gen. v. Colleton, 387 Mass. 790, 796 (1982); Commonwealth v. Hughes, 380 Mass. 583, 595 (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 (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).
Refusal Evidence. In Opinion of the Justices, 412 Mass. 1201, 1208 (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 (1999) ("evidence admitted to show consciousness of guilt is always testimonial because it tends to demonstrate that the defendant knew he was guilty"). If evidence of the defendant's refusal to take a breathalyzer, or other alcohol-related test, is erroneously introduced at trial, the defendant has the right to a jury instruction pursuant to Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198 (2001), that jurors are not to consider the lack of any alcohol-test evidence during deliberations. Id. It is the defendant's decision whether a Downs instruction is given; the instruction cannot be given over the defendant's objection, and the judge should not give the instruction sua sponte, see Commonwealth v. Wolfe, 478 Mass. 142, 149-150 (2017), except in rare circumstances, see Commonwealth v. Derosier, 103 Mass. App. Ct. 518, 524 (2023) (where jury asked question about breathalyzer machine shown in booking video).
The reasoning employed by the Supreme Judicial Court in Opinion of the Justices, 412 Mass. at 1208-1211, 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., Conkey, 430 Mass. at 141-143 (evidence of a defendant's failure to appear at a police station for fingerprinting); Commonwealth v. Hinckley, 422 Mass. 261, 264-265 (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 (1995) (evidence of refusal to submit to field sobriety tests is not admissible); Commonwealth v. Zevitas, 418 Mass. 677, 683 (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 (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 (1991) (a suspect may be compelled to provide a handwriting exemplar); Commonwealth v. Burke, 339 Mass. 521, 534-535 (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 (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); Commonwealth v. Brown, 83 Mass. App. Ct. 772, 778-779 (2013) (statements by defendant while performing field sobriety tests expressing difficulty with or inability to do the test are admissible).
Where a defendant consents to take a breathalyzer test, "the failure to produce a breath sample is not improper refusal evidence. Rather, in the proper circumstances, the failure to provide a breath sample may be introduced either to show that the defendant is too impaired to take the test or to show consciousness of guilt," provided that the statutory and regulatory requirements have been met. Commonwealth v. Daigle, 99 Mass. App. Ct. 107, 112 (2021) (insufficient breath sample introduced in error as Commonwealth did not meet foundational requirements for admission, including demonstrating that person administering test was certified and that methodology used was in fact reliable). See Commonwealth v. AdonSoto, 475 Mass. 497, 501-502 (2016).
Evidence of refusal may be admissible where the defendant "opens the door" by introducing evidence of cooperation. Commonwealth v. Jones, 477 Mass. 307, 326-328 (2017); Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 104 (2001) (where defense counsel elicited testimony that defendant was not subjected to field sobriety test, Commonwealth was entitled to elicit testimony that defendant refused); Commonwealth v. Johnson, 46 Mass. App. Ct. 398, 405-406 (1999) (where defendant testified that he "did not disguise his voice" during identification procedure, Commonwealth was entitled to elicit testimony that defendant twice failed to show up for voice identification).
Cross-Reference: Section 525(b)(1), Comment upon or Inference from Claim of Privilege: Criminal Case; Section 613(a)(2), Prior Statements of Witnesses, Limited Admissibility: Prior Inconsistent Statement: Examining Other Witness; Section 613(a)(3), Prior Statements of Witnesses, Limited Admissibility: Prior Inconsistent Statement: Disclosure of Extrinsic Evidence.
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 (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 intended to determine whether the defendant is able to confer intelligently with counsel and to competently participate in the trial, not the issue of guilt or innocence. See Seng v. Commonwealth, 445 Mass. 536, 545 (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, 445 Mass. at 548.
Use of Statements Made During Competency Examinations in Connection with Criminal Responsibility. Generally, a patient's communications to a psychotherapist in a court-ordered evaluation under G. L. c. 123, § 15, may not be disclosed against the patient's wishes absent a warning that the communications would not be privileged. See Commonwealth v. Lamb, 365 Mass. 265, 270 (1974).
Criminal Responsibility Examinations. Defendants who intend at trial to raise their mental condition at the time of the alleged crime, or who intend to introduce expert testimony on their mental condition at any stage of the proceeding, must give written notice to the Commonwealth. Mass. R. Crim. P. 14(b)(2)(A). Where a defendant's expert witness will rely on statements that the defendant made to the expert as the basis for the expert's opinion on the defendant's mental condition, the court, on its own motion or on motion of the Commonwealth, may order the defendant to submit to an examination by a court-appointed examiner in accordance with the terms and conditions set forth in Rule 14(b)(2)(B). This procedure adequately safeguards a defendant's privilege against selfincrimination. See Mass. R. Crim. P. 14(b)(2)(B); Blaisdell v. Commonwealth, 372 Mass. 753, 766-769 (1977). The results of a competency evaluation may be used against the defendant where the defendant offers evidence at trial in support of a defense of lack of criminal responsibility, thereby waiving the privilege; Lamb warnings given at the beginning of court-ordered competency evaluations should contain a warning to that effect. Commonwealth v. Harris, 468 Mass. 429, 452 (2014).
Rule 14(b)(2)(C) establishes a "reciprocal discovery process" to ensure that both the defendant's expert and the court-appointed examiner have "equal access to the information they collectively deem necessary to conduct an effective forensic examination and produce a competent report." Reporters' Notes to Mass. R. Crim. P. 14(b)(2)(C). See Commonwealth v. Hanright, 465 Mass. 639, 644 (2013) ("It is only fair that the Commonwealth have the opportunity to rebut the defendant's mental health evidence using the same resources that should be made available to defendant's medical expert."). Under the rule, within fourteen days of the court's designation of the court-appointed examiner, the defendant must make available to the examiner (1) all mental health records concerning the defendant in defense counsel's possession; (2) all medical records concerning the defendant in defense counsel's possession; and (3) all raw data from any tests or assessments administered or requested by the defendant's expert. Mass. R. Crim. P. 14(b)(2)(C)(i). This duty of production extends beyond the initial fourteen-day period. Mass. R. Crim. P. 14(b)(2)(C)(ii). The examiner also may request additional records under seal from "any person or entity" by following the procedure set forth in Rule 14(b)(2)(C)(iii); this same provision provides that if the court allows any part of an examiner's request, the defendant may make copies of the same records. At the conclusion of the court-ordered examination, the examiner must make available to the defendant all raw data from any tests or assessments administered to the defendant during the examination. Mass. R. Crim. P. 14(b)(2)(C)(iv). "By ensuring that the experts are working from a common, comprehensive set of records and objective, test-generated data, the rule advances the reliability and fairness of the examinations and the ensuing reports, and it promotes efficiency in the examination process." Reporters' Notes to Mass. R. Crim. P. 14(b)(2)(C).
Although Rule 14(b)(2)(C)(i) requires that the defendant produce only those mental health and medical records possessed by defense counsel, the rule "intends as wide a reach as is reasonably possible, covering every such record that the defense collected in the course of considering whether to assert this defense." Reporters' Notes to Mass. R. Crim. P. 14(b)(2)(C). Any concern that the defense "overlooked" or "chose not to collect" certain records is counterbalanced by the ability of the court-appointed examiner to request additional records. Id.
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: In General. This privilege is not self-executing. See Commonwealth v. Brennan, 386 Mass. 772, 780 (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 (1985) (civil proceeding); and Commonwealth v. Baker, 348 Mass. 60, 62-63 (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 (2004); Commonwealth v. Funches, 379 Mass. 283, 289 (1979). Also, under both Federal and State law, a public employee cannot be discharged or disciplined solely because the employee asserts the privilege against self-incrimination in response to questions by the public employer. Furtado v. Plymouth, 451 Mass. 529, 530 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. 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 (1994). This privilege is not self-executing. See Commonwealth v. Brennan, 386 Mass. 772, 780 (1982).
Validity of Claim of Privilege. 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 (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. The witness is only required to "open the door a crack." Id. at 504-505, quoting In re Brogna, 589 F.2d 24, 28 n.5 (1st Cir. 1978). See Commonwealth v. Johnson, 486 Mass. 51, 61-62 (2020) (witness may not invoke privilege "out of fear that [she] will be prosecuted for perjury for what [she] is about to say" or where prosecution would be barred by statute of limitations). "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." Martin, 423 Mass. at 502. 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 (2008).
Martin Hearing. In general, the judge's verification of the validity of the privilege should be based on information provided in open court. Commonwealth v. Alicea, 464 Mass. 837, 843 (2013). "Only in those rare circumstances where the information is inadequate to allow the judge to make an informed determination should the judge conduct an in camera Martin hearing." Commonwealth v. Jones, 472 Mass. 707, 728 (2015), quoting Pixley v. Commonwealth, 453 Mass. 827, 833 (2009). Neither the defendant nor counsel has a right to be present during a Martin hearing. Commonwealth v. Clemente, 452 Mass. 295, 318 (2008). If the judge rules that there is a valid basis for the witness to assert the privilege, the defendant has no right to call that witness. Pixley, 453 Mass. at 834. At the conclusion of a Martin hearing, the trial judge should seal the transcript or tape of the hearing, which may be reopened "only by an appellate court on appellate review." Id. at 836-837.
Grand Jury Witness. If there is a "substantial likelihood" that the witness will be indicted-that is, if the witness is a "target" of the grand jury investigation or likely to become one-the witness must be advised before testifying (1) of the right to refuse to answer any question if a truthful answer would tend to incriminate the witness, and (2) that any statements may be used against the witness in a subsequent legal proceeding. Commonwealth v. Woods, 466 Mass. 707, 720 (2014). See G. L. c. 277, § 14A (witness with counsel has the right to counsel's presence before the grand jury). See also Supreme Judicial Court Committee on Grand Jury Proceedings: Final Report (June 2018), at http://perma.cc/3CN6-8BZ6.
Noncriminal Proceedings. "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 (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 (1992) (in paternity case, court may draw adverse inference against party who asserts privilege and refuses to submit to blood and genetic marker testing); Wansong v. Wansong, 395 Mass. 154, 157-158 (1985) (dismissal of complaint for divorce without prejudice as discovery sanction); Adoption of Cecily, 83 Mass. App. Ct. 719, 727 (2013) (in termination of parental rights case, court may draw adverse inference against parent who invokes privilege, even though criminal charges are pending). 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 (1992); Kaye v. Newhall, 356 Mass. 300, 305-306 (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, 395 Mass. at 157.
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, 356 Mass. at 305. 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 the privilege against self-incrimination and a representation by the witness's attorney that the witness will invoke the privilege if called to testify. Commonwealth v. Sanders, 451 Mass. 290, 294- 295 (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 (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 (1996).
Subsection (c)(2). This subsection is derived from Taylor v. Commonwealth, 369 Mass. 183, 189-191 (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 (1979). In Commonwealth v. King, 436 Mass. 252, 258 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 (1996) (waiver of privilege before grand jury does not waive privilege at trial); Commonwealth v. Borans, 388 Mass. 453, 457-458 (1983) (same). See also Care & Protection of M.C., 479 Mass. 246, 261 (2018) (waiver of privilege at trial on termination of parental rights does not waive privilege in subsequent criminal trial). 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, 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 (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 (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, 369 Mass. at 192. 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 (2003). Ultimately, whether a voluntary waiver has occurred is a question of fact for the trial judge. See King, 436 Mass. at 258-259.
Subsection (c)(3). This subsection is derived from Taylor v. Commonwealth, 369 Mass. 183, 190-191 (1975). See also Commonwealth v. Martin, 423 Mass. 496, 500 (1996) (grand jury proceedings and the defendant's subsequent indictment are separate proceedings); Commonwealth v. Johnson, 175 Mass. 152, 153 (1900); Commonwealth v. Mandile, 17 Mass. App. Ct. 657, 662 (1984).
Subsection (c)(4). This subsection is derived from Stornanti v. Commonwealth, 389 Mass. 518, 521-522 (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 (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 (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 (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). A conviction cannot be based solely on immunized testimony. There must be some corroborating evidence of at least one element of proof essential to convict the defendant. Commonwealth v. Resende, 476 Mass. 141, 152 (2017). See also G. L. c. 233, § 20I. But see Commonwealth v. Duke, 489 Mass. 649, 665-666 (2022) (declining to extend corroboration requirement for immunized testimony under G. L. c. 233, § 20I, to cooperating witnesses, as special instruction pursuant to Commonwealth v. Thomas, 439 Mass. 362, 372 [2003], adequately protects defendant's right to due process).
Subsection (c)(6). This subsection is taken nearly verbatim from Commonwealth v. Gelfgatt, 468 Mass. 512, 522-523 (2014), quoting Fisher v. United States, 425 U.S. 391, 410-411 (1976) ("for the exception to apply, the government must establish its knowledge of [1] the existence of the evidence demanded; [2] the possession or control of that evidence by the defendant; and [3] the authenticity of the evidence"). See Commonwealth v. Jones, 481 Mass. 540, 542-543 (2019) (when Commonwealth has warrant to search cell phone and seeks Gelfgatt order compelling defendant to decrypt phone by entering the password, Article 12 of Declaration of Rights requires Commonwealth to prove defendant's knowledge of password beyond a reasonable doubt for "foregone conclusion" exception to apply).
Subsection (d). This subsection is derived from Commonwealth v. Harris, 364 Mass. 236, 241-242 (1973), which permits statements obtained without a valid waiver of Miranda rights to be used for impeachment of a defendant who testifies at trial if the statements are voluntary and trustworthy. See Commonwealth v. Mahnke, 368 Mass. 662, 694-696 (1975) (statement obtained in violation of defendant's right to counsel admissible for impeachment). See also Commonwealth v. Mulgrave, 472 Mass. 170, 181 (2015) (general subject matter of defendant's responses during questioning admissible to impeach defendant's position that he was noncommunicative during booking process and thus unable to comprehend his Miranda rights); Commonwealth v. Rivera, 425 Mass. 633, 637-638 (1997) (defendant's prior inconsistent statements made at suppression hearing admissible to impeach his testimony at trial). A coerced or involuntary statement may not be used for any purpose, including impeachment. Harris, 364 Mass. at 241. See Commonwealth v. Durand, 457 Mass. 574, 590-591 (2010) (defendant's statements previously suppressed as involuntary not admissible on prosecution's redirect of police officer, even where cross-examination arguably opened the door). Evidence obtained in violation of a defendant's substantive constitutional rights, as opposed to violations of "prophylactic" Miranda rules, is not admissible for any purpose. Commonwealth v. Fini, 403 Mass. 567, 571 (1988) (statement obtained by warrantless electronic eavesdropping in private home in violation of Article 14 of the Massachusetts Declaration of Rights inadmissible for any purpose). Cf. Commonwealth v. Domaingue, 397 Mass. 693, 702 (1986) (transcript of warrantless recording of defendant's conversation made in restaurant could be used to refresh defendant's recollection without disclosing substance of defendant's statement).