In a criminal case in which there is a written agreement between the Commonwealth and a witness in which the Commonwealth makes a promise to the witness in relation to the charges or the sentence in exchange for the testimony of the witness at trial, the use and admission of the agreement by the Commonwealth at trial is within the discretion of the trial judge subject to the following guidelines:
Mass. Guid. Evid. 1104
Subsections (a) and (b). These subsections are taken nearly verbatim from Commonwealth v. Ciampa, 406 Mass. 257, 264 (1989). See also Commonwealth v. Rivera, 430 Mass. 91, 96 (1999).
Subsection (c). This subsection is derived from Commonwealth v. Conkey, 430 Mass. 139, 147 (1999), and Commonwealth v. Ciampa, 406 Mass. 257, 261-262 (1989). Where defense counsel does not request redactions to the plea agreement, none are required. See Commonwealth v. Sun, 490 Mass. 196, 216-217 (2022).
Subsections (d) and (e). These subsections are derived from Commonwealth v. Rivera, 430 Mass. 91, 96-97 (1999), and Commonwealth v. Ciampa, 406 Mass. 257, 264-265 (1989). See also Commonwealth v. Webb, 468 Mass. 26, 32-34 (2014) (no error in permitting prosecutor to inquire on direct examination into witness's agreement to provide truthful testimony after defense counsel had attacked witness's credibility during opening statement).
Subsection (f). This subsection is derived from Commonwealth v. Ciampa, 406 Mass. 257, 266 (1989), and Commonwealth v. Asmeron, 70 Mass. App. Ct. 667, 675 (2007). See Commonwealth v. Meuse, 423 Mass. 831, 832 (1996) (reversible error where prosecutor vouched for witness testifying pursuant to plea agreement and judge failed to give Ciampa -type instruction); Commonwealth v. Daye, 411 Mass. 719, 739-740 (1992) (no special instruction necessary as it did not appear that evidence presented realistic possibility that jury would believe witness's testimony based on her agreement to tell truth); Commonwealth v. Colon, 408 Mass. 419, 445 (1990) (no special instructions necessary where plea agreement does not condition immunization on truthfulness). See also 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).
General Application. The above guidelines also apply to nonbinding pretrial "agreements." See Commonwealth v. Davis, 52 Mass. App. Ct. 75, 78-79 & n.7 (2001) (holding that Ciampa 's prophylactic measures are applicable in circumstances in which Commonwealth witness testified that, after he was charged with distribution of marijuana, he agreed to help police arrest others involved in illegal sale of drugs in exchange for nonspecific "consideration" from prosecution). A defendant has the right to bring to the attention of the jury any "quid pro quo" agreement between the prosecution and a testifying witness, whether formal or informal, written or unwritten. See Id. at 78 n.7; Commonwealth v. O'Neil, 51 Mass. App. Ct. 170, 179 (2001).
In Commonwealth v. Prater, 431 Mass. 86, 98 (2000), the Supreme Judicial Court indicated that the "better practice" is for the trial judge to include in the cautionary instruction a warning that the jury should not consider an accomplice's guilty plea as evidence against the defendant.
An agreement that obligates a witness to testify to some particular version of the facts in exchange for a charge or sentence concession would be grounds for a motion to preclude the testimony or to strike it. See Commonwealth v. Ciampa, 406 Mass. 257, 261 n.5 (1989) ("Testimony pursuant to a plea agreement made contingent on obtaining . . . a conviction, as a result of the witness's testimony, would presumably present too great an inducement to lie, [and] would not meet the test of fundamental fairness."). See also Commonwealth v. Colon-Cruz, 408 Mass. 533, 553 (1990) ("[W]e do not condone the use of agreements which do not require a witness to tell the truth. Such agreements are antithetical to the fair administration of justice.... [F]uture plea agreements [should] be drafted so as to make the obligation to testify truthfully clear to the witness[.]").
Section 611(b)(2), Mode and Order of Examining Witnesses and Presenting Evidence: Scope of Cross-Examination: Bias and Prejudice.