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SUPREME JUDICIAL COURT

IN THE MATTER OF A GRAND JURY INVESTIGATION
Docket:

SJC-12869

Dates:

April 7, 2020 - September 8, 2020

Present:

Gants, C.J., Lenk, Gaziano, Lowy, Budd,
Cypher, & Kafker, JJ.

County:

Suffolk

Keywords:

Grand Jury. District Attorney. Police
Officer. Evidence, Grand jury proceedings,
Testimony before grand jury, Immunized
witness, Exculpatory, Disclosure of
evidence, Impeachment of credibility.
Practice, Criminal, Grand jury proceedings,
Immunity from prosecution, Disclosure of
evidence. Witness, Immunity,
Impeachment, Police officer.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 2,
2019.
The case was reported by Cypher, J.
William T. Harrington (Edward P. Harrington also present) for the petitioners.
Shoshana E. Stern, Assistant District Attorney, for the Commonwealth.
Scott P. Lewis, Samuel B. Dinning, Matthew R. Segal, Jessica J. Lewis, & Daniel L. McFadden,
for American Civil Liberties Union of Massachusetts, Inc., & another, amici curiae, submitted a
brief.
GANTS, C.J.

In 2019, the district attorney learned through immunized grand jury testimony that

two police officers, the petitioners in this case, knowingly made false statements in their police
reports that concealed the unlawful use of force by a fellow officer against an arrestee and
supported a bogus criminal charge of resisting arrest against the arrestee. The district attorney,
to his credit, prepared a discovery letter describing the petitioners' misconduct and asked a
Superior Court judge to authorize its disclosure to defense counsel as potentially exculpatory
information in unrelated criminal cases where the petitioners might be witnesses. The judge
authorized the disclosure. The petitioners appealed, claiming that the information should not be
disclosed to defense counsel in unrelated cases because disclosure is not constitutionally required
and would reveal information obtained from immunized testimony before a grand jury. We affirm the
judge's order of disclosure.[1]
Background. We recite the facts of this case based upon the information contained in the G. L.
c. 211, § 3, petition and the parties' agreed upon statement of facts. The petitioners are Fall
River police officers who were present when fellow police officer, Michael Pessoa, used force while
arresting an individual (arrestee) on February 12, 2019. Pessoa submitted an arrest report
concerning the arrest; the petitioners did not. A few hours after the arrest, the petitioners were
ordered by their superiors to each complete the police department's Use of Defensive Tactics Report
(use-of-force report) because the arrestee was observed to have a bloody lip while being booked at
the police station. The petitioners are not themselves alleged to have used force during this
incident.

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The use-of-force report is a preprinted two-page form that a police officer must complete after
using force on a suspect or arrestee. The kinds of use-of-force range from the use of a firearm or
pepper spray, to the use of certain hands-on force, such as an "arm bar take down". A use-of-force
report is not an incident report or an arrest report; rather, it is an internal police department
report generated to memorialize an officer's use of force during an encounter with an individual.
Each of the petitioners executed a use-of-force report that, in essence, adopted Pessoa's version of
events as set forth in his incident report -- namely, that the arrestee was noncompliant, threatened
to punch the officers, and was then taken to the ground by Pessoa in making the arrest.[2]
After the arrestee was charged with various offenses, including resisting arrest, his defense
attorney provided the district attorney for the Bristol district with a videotape of surveillance
footage that showed the arrest and Pessoa's use of force on the arrestee.[3] The footage of the
incident was inconsistent with the descriptions the petitioners provided in their use-of-force
reports.[4] Specifically, the footage showed that the arrestee was physically compliant when one of
the petitioners removed his handcuffs, and that Pessoa then struck the arrestee on the left side of
his head-shoulder area, causing the arrestee, according to the agreed upon statement of facts, "to be
taken to the ground in a violent manner."[5]
Prompted by the videotape, the district attorney initiated a criminal investigation into
Pessoa's conduct. This investigation resulted in a grand jury returning fifteen indictments against
Pessoa for crimes involving four separate arrestees, including charges for assault and battery by
means of a dangerous weapon causing serious bodily injury, assault and battery, civil rights
violations, witness intimidation, filing false police reports, and malicious destruction of property.
[6]
During the criminal investigation of Pessoa, the district attorney subpoenaed the petitioners
to testify before the grand jury.

In light of the apparent inconsistencies between their use-of-

force reports and the videotape, the petitioners each asserted his privilege against selfincrimination under the Fifth Amendment to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights.

The district attorney then sought and obtained orders of

immunity pursuant to G. L. c. 233, §§ 20C-20G, from a Superior Court judge.

The judge found that

each petitioner "did validly refuse to answer questions or produce evidence on the grounds that such
testimony or such evidence might tend to incriminate him." The immunity orders provided that the
petitioners
"be granted immunity from prosecution, and not be subjected to any penalty or forfeiture with respect
to the transaction, matter or thing concerning which he is compelled to testify or produce evidence,
and no testimony concerning said crimes shall be used as evidence against the witness in any Court of
the Commonwealth, except in a prosecution for perjury or contempt committed while giving testimony or
producing evidence under compulsion of this order."
The grant of immunity compelled the petitioners to "give testimony and produce evidence" before a
"jury in these proceedings." During interviews prior to their grand jury testimony and during their
grand jury testimony, the petitioners admitted that their use-of-force reports were false.
On August 13, 2019, the district attorney's office filed two motions in the Superior Court. A
Superior Court judge ordered both motions impounded, and they were not served on the petitioners. In
the first motion, the district attorney sought authority to disclose information from a petitioner's
grand jury testimony to defense counsel for criminal defendants in cases unrelated to the prosecution
of Pessoa where the petitioner was "a potential witness," asserting that it was obligated to make
such disclosures under Brady v. Maryland, 373 U.S. 83, 87-88 (1963) and Giglio v. United States, 405
U.S. 150, 155 (1972) (Brady disclosure motion). Attached to the motion was a proposed discovery
letter that identified the relevant petitioners and stated that each is a police officer with the
Fall River police department who "has been given a grant of immunity as part of the Pessoa grand jury
investigation," and who "admitted to filing a false police report" as part of that case.[7]
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In the second motion, the district attorney sought an order authorizing the disclosure of
information concerning the petitioners' grand jury testimony to their municipal employer, the Fall
River police department (employer disclosure motion).

Attached to the employer disclosure motion was

a proposed letter to the Fall River police chief, setting forth the same statements in the proposed
Brady disclosure letter.
On or about August 16, 2019, counsel for the petitioners learned that the district attorney's
office had filed an internal affairs complaint against the petitioners with the Fall River police
department, and learned of the employer disclosure motion.

Shortly thereafter, the petitioners filed

a motion in the Superior Court seeking standing to oppose the employer disclosure motion.
Petitioners subsequently learned of, and sought to object to, the Brady disclosure motion.
The Superior Court judge allowed the petitioners to oppose both motions.[8]

After oral

argument, the judge allowed the district attorney's motion to make the Brady disclosure but denied
the employer disclosure motion.

In allowing the Brady disclosure motion, the judge concluded that

the proposed discovery letter "is potentially exculpatory evidence as it may tend to negate the guilt
of criminal defendants against whom the officers may be witnesses at trial." The judge ordered the
Commonwealth to "notify by means of the proposed discovery letter, all defendants of cases not yet
tried and cases now disposed that were tried after the date of the filing of the false police
reports, for which the identified officer either prepared a report or is expected to be a witness at
trial."
In denying the employer disclosure motion, the judge concluded that the Commonwealth had not
"shown that the need for disclosure outweigh[ed] the need for continued secrecy."

The judge noted:

"It is apparent from the public nature of the indictments against Michael Pessoa, the public
statements of the Fall River [p]olice [c]hief, and the media coverage on the topic, that the
department has substantial information on which to commence disciplinary proceedings, and that the
proposed statement the Commonwealth seeks to disclose to the department will provide no additional
material information."
The petitioners sought and were granted a stay with respect to the allowance of the Brady
disclosure motion, enabling them to seek relief from a single justice of this court pursuant to
G. L. c. 211, § 3.

The Commonwealth did not petition for relief from the denial of the employer

disclosure motion.

After a hearing, the single justice reserved and reported the case to the full

court.

The single justice directed the parties to address the following questions:

(1) whether

there is a Brady obligation in these circumstances to disclose information to unrelated defendants;
(2) whether, if there is a Brady obligation, the Commonwealth may disclose the information even if it
was obtained as a result of a judicial order of immunity or in the course of the petitioners' grand
jury testimony; (3) whether, if there is a Brady obligation, the Commonwealth must seek prior
judicial approval for disclosure; (4) whether the process by which the Commonwealth obtained the
petitioners' testimony precludes disclosing information to the petitioners' municipal employer -- the
police department -- concerning the petitioners' invocation of the right against self-incrimination,
grant of immunity, and admitted conduct, for purposes of administrative disciplinary proceedings,
employee training, or otherwise; and (5) whether, if disclosure to the police department is
permissible, the Commonwealth must seek prior judicial approval.
Discussion.

1.

Disclosure of Brady information to other defendants.

Under the due process

clause of the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts
Declaration of Rights, a prosecutor must disclose exculpatory information to a defendant that is
material either to guilt or punishment. See Brady, 373 U.S. at 87; Committee for Pub. Counsel Servs.
v. Attorney Gen., 480 Mass. 700, 731 (2018) (CPCS). "When the 'reliability of a given witness may
well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls
within this general rule." Giglio, 405 U.S. at 154, quoting Napue v. Illinois, 360 U.S. 264, 269
(1959). See Commonwealth v. Hill, 432 Mass. 704, 715 (2000), quoting Commonwealth v. Collins, 386
Mass. 1, 8 (1982) ("Evidence tending to impeach the credibility of a key prosecution witness is
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clearly exculpatory").

Therefore, in the parlance of the criminal justice bar, Giglio information is

Brady information: "[t]he Brady obligation comprehends evidence which provides some significant aid
to the defendant's case, whether it furnishes corroboration of the defendant's story, calls into
question a material, although not indispensable, element of the prosecution's version of the events,
or challenges the credibility of a key prosecution witness." Commonwealth v. Ellison, 376 Mass. 1,
22 (1978).
Apart from the constitutional obligations of disclosure, our rules of criminal procedure
require a prosecutor, as part of automatic discovery, to disclose to a defendant "[a]ny facts of an
exculpatory nature."[9] Mass. R. Crim. P. 14 (a) (1) (A) (iii), as amended, 444 Mass. 1501 (2005).
And our rules of professional conduct require prosecutors to "make timely disclosure to the defense
of all evidence or information known to the prosecutor that tends to negate the guilt of the accused
or mitigates the offense." Mass. R. Prof. C. 3.8 (d), as appearing in 473 Mass. 1301 (2016). See
also Mass. R. Prof. C. 3.4 (a), as appearing in 471 Mass. 1425 (2015) (lawyer prohibited from
concealing evidence or unlawfully obstructing another party's access to evidence); Mass. R. Prof. C.
3.8 (g) (prosecutor may not avoid pursuit of evidence that may aid accused); Mass. R. Prof. C.
3.8 (i) (prosecutor's obligation to disclose postconviction exculpatory evidence).
The petitioners, in essence, make four arguments in support of their position that the district
attorney should be barred from making the requested disclosure to criminal defendants in cases where
a petitioner either prepared a report or is expected to be a witness at trial: (1) that the
information falls outside the scope of a prosecutor's Brady obligation; (2) that the information
would not be admissible at trial and therefore is not exculpatory; (3) that disclosure would violate
each petitioner's immunity order; and (4) that disclosure is barred by the rules governing grand jury
secrecy. We address each argument in turn.
a.

Scope of a prosecutor's Brady obligation.

The petitioners contend that the information the

district attorney seeks to disclose is not Brady information because the failure to disclose this
information would not require a new trial if the defendant were to be convicted. This argument
incorrectly equates a prosecutor's duty to disclose exculpatory evidence with the standard applied in
determining whether the prosecutor's failure to disclose exculpatory evidence is so prejudicial that
it requires a new trial.
Under Federal constitutional law, a prosecutor's failure to disclose exculpatory information is
not a breach of a prosecutor's constitutional duty to disclose unless the "omission is of sufficient
significance to result in the denial of the defendant's right to a fair trial." United States v.
Bagley, 473 U.S. 667, 676 (1985), quoting United States v. Agurs, 427 U.S. 97, 108 (1976). Under the
standard of materiality applied by the Supreme Court, "[t]he evidence is material only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different." Bagley, supra at 682. "A 'reasonable probability' is a
probability sufficient to undermine confidence in the outcome." Id. This materiality standard
applies regardless of whether the undisclosed information was requested by the defendant, either
generally or specifically.

See id. at 682-83.

This court declined to adopt the Bagley "one size fits all" test as a matter of State
constitutional law and instead "adhered to the Agurs test for determining the consequences of a
prosecution's failure to comply with a specific request for exculpatory evidence," which was the test
the Supreme Court had supplanted in Bagley. Commonwealth v. Tucceri, 412 Mass. 401, 406 (1992),
citing Commonwealth v. Gallarelli, 399 Mass. 17, 21 n.5 (1987). Consequently, under our Declaration
of Rights, where the defendant had made a specific request for the information, "a new trial would be
required if the undisclosed evidence 'might have affected the outcome of the trial.'" Tucceri, supra
at 405, quoting Agurs, 427 U.S. at 104. Where there was no request for the information, or only a
general request was made, "a new trial would be required only if the undisclosed evidence 'create[d]
a reasonable doubt which did not otherwise exist.'" Tucceri, supra, quoting Agurs, supra at 112.

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The petitioners contend that a prosecutor should not disclose exculpatory information unless
the prosecutor has a constitutional duty to disclose, and that duty is triggered only where the
information would create a reasonable doubt which would not otherwise exist. See Tucceri, 412 Mass.
at 405.

This argument fails for two reasons.

First, prosecutors have more than a constitutional duty to disclose exculpatory information;
they also have a broad duty under Mass. R. Crim. P. 14 (a)(1)(iii) to disclose "[a]ny facts of an
exculpatory nature." This duty is not limited to information so important that its disclosure would
create a reasonable doubt that otherwise would not exist; it includes all information that would
"tend to" indicate that the defendant might not be guilty or "tend to" show that a lesser conviction
or sentence would be appropriate. See CPCS, 480 Mass. at 731, quoting Brady, 373 U.S. at 87
(prosecutor may not withhold evidence that "would tend to exculpate [a defendant] or reduce the
penalty"); Collins, 470 Mass. at 267 ("The Commonwealth is required to disclose exculpatory evidence
to the defendant, including, as is relevant here, evidence that would tend to impeach the credibility
of a key prosecution witness"). Therefore, in Massachusetts, when we speak of a prosecutor's Brady
obligation, we mean not only the constitutional obligation to disclose exculpatory information but
also the broad obligation under our rules to disclose any facts that would tend to exculpate the
defendant or tend to diminish his or her culpability.
Second, even if prosecutors had only their constitutional obligation to disclose, and not the
broad duty under our rules, we would not want prosecutors to withhold exculpatory information if they
thought they could do so without crossing the line into a violation of the defendant's right to a
fair trial. It is true that the constitutional duty of a prosecutor to disclose derives from the
defendant's due process right to a fair trial. See Agurs, 427 U.S. at 108 ("unless the omission
deprived the defendant of a fair trial, there was no constitutional violation requiring that the
verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor's
constitutional duty to disclose"). Therefore, a finding regarding a breach of that obligation looks
backward in time, at whether the failure to disclose deprived the defendant of a fair trial. But a
prosecutor who is deciding whether to disclose exculpatory information must look forward in time, to
a trial that has yet to occur, where even an experienced prosecutor may be unsure about the defenses
that the defendant will offer or that will emerge from the evidence. As the Supreme Court declared
in Agurs, supra:
"[T]here is a significant practical difference between the pretrial decision of the prosecutor and
the post-trial decision of the judge. Because we are dealing with an inevitably imprecise standard,
and because the significance of an item of evidence can seldom be predicted accurately until the
entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of
disclosure."
See Kyles v. Whitley, 514 U.S. 419, 439 (1995) ("a prosecutor anxious about tacking too close to the
wind will disclose a favorable piece of evidence. . . . This is as it should be" [citation omitted]).
A prosecutor should not attempt to determine how much exculpatory information can be withheld
without violating a defendant's right to a fair trial. Rather, once the information is determined to
be exculpatory, it should be disclosed -- period. And where a prosecutor is uncertain whether
information is exculpatory, the prosecutor should err on the side of caution and disclose it. See
Commonwealth v. St. Germain, 381 Mass. 256, 262 n.10 (1980), quoting Commentary to A.B.A. Standards
for Criminal Justice, Standards Relating to Discovery and Procedure Before Trial 2.1(d) (Approved
Draft 1970) ("We reiterate[] that 'prosecuting attorneys [should] become accustomed to disclosing all
material which is even possibly exculpatory, as a prophylactic against reversible error and in order
to save court time arguing about it'").[10]
b. Consequence of admissibility of impeachment information on Brady obligation. The
petitioners also argue that prosecutors have no obligation to disclose the petitioners' false
statements because their prior misconduct would not be admissible in evidence at trial in any
unrelated criminal case. We disagree.
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The petitioners are correct that, in the absence of a conviction, "[i]n general, specific
instances of misconduct showing the witness to be untruthful are not admissible for the purpose of
attacking or supporting the witness's credibility." Mass. G. Evid. § 608(b) (2020), citing
Commonwealth v. Bregoli, 431 Mass. 265, 275 (2000), and Commonwealth v. LaVelle, 414 Mass. 146, 151
(1993). See Mass. G. Evid. § 609(a) (2020) ("A party may seek to impeach the credibility of a
witness by means of the court record of the witness's prior conviction or a certified copy"). But we
have "chiseled a narrow exception" to this general rule, "recognizing that in special circumstances
the interest of justice forbids strict application of the rule." LaVelle, supra, citing Commonwealth
v. Bohannon, 376 Mass. 90, 94 (1978), S.C., 385 Mass. 733 (1982).[11]
In Bohannon, 376 Mass. at 94, we declared, "[w]hen evidence concerning a critical issue is
excluded and when that evidence might have had a significant impact on the result of the trial, the
right to present a full defense has been denied." In that case, a critical issue at trial was the
credibility of the complainant, who testified that she did not consent to sexual intercourse with the
defendant, and the evidence that might have had a significant impact on the result of the trial were
hospital records that revealed that "the complainant had made a number of unsubstantiated, and
apparently false, accusations of rape." Id. at 93. We concluded that it was reversible error for
the judge to have prevented the defendant from impeaching the victim-witness with this evidence of
prior false accusations. See id. at 95.
A judge has the discretion to decide whether the credibility of a police officer is a critical
issue at trial and whether the officer's prior false statements in a separate matter might have a
significant impact on the result of the trial, such that the prior misconduct should be admitted in
the interest of justice. See Commonwealth v. Lopes, 478 Mass. 593, 606 (2018). In Lopes, we
concluded that the judge did not abuse his discretion by preventing the defendant from impeaching a
police officer who was one of the Commonwealth's key eyewitnesses in a homicide case "with
information that the Boston police department had suspended [the police officer] five years earlier
for, among other things, lying in an internal affairs investigation on a personal matter." Id. We
noted that the alleged conduct was "not material" to the homicide investigation where it took place
five years before the murder, "did not result in a criminal conviction or even a criminal charge,"
and was "not related to how [the officer] conducted police investigations." Id.
Our delineation of these factors suggests that a judge, in deciding whether to allow a police
officer witness in the interest of justice to be impeached with prior misconduct, may consider the
age of the prior misconduct, the strength of the evidence of the prior misconduct and the simplicity
of establishing it, and whether the prior misconduct is probative of how the officer conducts police
investigations.[12] As to the age of the misconduct, if it happened so long ago that it would not be
admissible for impeachment had it resulted in a criminal conviction, see Mass. G. Evid. § 609, it
would not likely be admissible in the absence of a conviction.

As to the strength of the evidence of

the prior misconduct and the simplicity of establishing it, a judge may consider whether admitting
evidence of the misconduct will result in a trial within a trial to resolve whether it happened or
how it happened.

As to whether the prior misconduct is probative of how the officer conducts police

investigations, a judge may consider whether the misconduct reflects a willingness to lie to win a
conviction or instead involves matters that, although serious, do not bear on the integrity of police
investigations, such as taking unauthorized sick time or inflating overtime hours.

Concealing police

brutality against an arrestee, whether by the officer or a fellow officer, or making false statements
that might lead to an unjust conviction are for law enforcement officers the equivalent of high
crimes and misdemeanors in this regard. All of these factors suggest that the petitioners' prior
false statements might be admissible in a case where the credibility of their testimony is a critical
issue.
We do not conclude that the exculpatory information at issue will always be or could never be
admissible as impeachment evidence in an unrelated criminal case where one of the petitioners is a
witness.

All we conclude is that the information should be disclosed to unrelated defendants so that

the trial judge may rule on its admissibility if the defendant were to seek its admission.
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Moreover, the ultimate admissibility of the information is not determinative of the
prosecutor's Brady obligation to disclose it. Where the information, as here, demonstrates that a
potential police witness lied to conceal a fellow officer's unlawful use of excessive force or lied
about a defendant's conduct and thereby allowed a false or inflated criminal charge to be prosecuted,
disclosing such information may cause defense counsel, or his or her investigator, to probe more
deeply into the prior statements and conduct of the officer to determine whether the officer might
again have lied to conceal the misconduct of a fellow police officer or to fabricate or exaggerate
the criminal conduct of the accused.
c.

Consequence of order of immunity on Brady obligation.

The petitioners contend that, where

exculpatory information is obtained from a witness's immunized testimony, prosecutors should not
disclose the information to defendants in unrelated cases because the orders of immunity protect
immunized witnesses from the adverse consequences that might result from such disclosure.

This

argument misreads the scope of immunity provided by the immunity order.
The Fifth Amendment states in relevant part: "No person . . . shall be compelled in any
criminal case to be a witness against himself." Article 12 states in part: "No subject shall be
held to answer for any crimes or offense, until the same is fully and plainly, substantially and
formally, described to him; or be compelled to accuse, or furnish evidence against himself." As is
apparent from the language of the Fifth Amendment and art. 12, a witness's right to refuse to testify
before a tribunal by invoking the privilege against self-incrimination is available only where the
witness's testimony might incriminate the witness with respect to a crime, either by the testimony
itself or by evidence derived from that testimony. See Commonwealth v. Martin, 423 Mass. 496, 502
(1996), quoting Commonwealth v. Funches, 379 Mass. 283, 289 (1979) ("The privilege afforded not only
extends to answers that would in themselves support a conviction . . . but likewise embraces those
which would furnish a link in the chain of evidence needed to prosecute"). A witness may not invoke
the privilege simply because the testimony, when it becomes known, will cause the witness to be fired
from a job or injure the witness's reputation in the community.

See Pixley v. Commonwealth, 453

Mass. 827, 832 (2009), citing Martin, supra at 502-503 (circumstances for invoking privilege "must
clearly indicate a possibility of self-incrimination").
An immunity order is sometimes referred to as a compulsion order because it grants immunity to
the witness that is "coextensive with the scope of the privilege against self-incrimination, and
therefore is sufficient to compel testimony over a claim of the privilege."

Kastigar v. United

States, 406 U.S. 441, 453 (1972). Under the Fifth Amendment, testimony may be compelled through an
order granting use immunity that prohibits only the use, in any criminal case, of compelled testimony
and the use of any evidence directly or indirectly derived from that compelled testimony.

See id. at

453. However, under the Massachusetts Constitution and the governing statutes, G. L. c. 233, §§ 20C20G, testimony may be compelled only through an order granting transactional immunity that provides
"absolute immunity from subsequent prosecution based upon any transaction, matter, or occurrence
about which an immunized witness testified or produced evidence."

Attorney Gen. v. Colleton, 387

Mass. 790, 795 (1982). See Commonwealth v. Austin A., 450 Mass. 665, 668 (2008).
transactional immunity is set forth in G. L. c. 233, § 20G:

The scope of

"A witness who has been granted immunity as provided in section 20E shall not be prosecuted or
subjected to any penalty or forfeiture for or on account of any transaction matter, or thing
concerning which he is so compelled, after having claimed his privilege against self-incrimination,
to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal
or civil proceeding against him in any court of the commonwealth, except in a prosecution for perjury
or contempt committed while giving testimony or producing evidence under compulsion, pursuant to
section 20C or 20E" (emphasis added).[13]
"[I]t would be difficult to imagine an immunity more complete."

Matter of a John Doe Grand Jury

Investigation, 405 Mass. 125, 130 (1989), quoting Cabot v. Corcoran, 332 Mass. 44, 51 (1954).

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Under § 20G, a witness with immunity may not be criminally prosecuted for any transaction about
which the witness is compelled to testify. Nor may the Commonwealth seek any civil penalty or
forfeiture regarding such a transaction.

And apart from the prohibition against criminal and civil

prosecution regarding matters raised during compelled testimony, the testimony itself may not be
"used as evidence in any criminal or civil proceeding against" the witness in a court of law, except
where the immunized testimony itself is the subject of a prosecution against the witness for perjury
or contempt of court.

See G. L. c. 233, § 20G.

If an immunized witness testifies at trial, however, the testimony is as public as the trial
itself, and nothing in the order of immunity protects the witness from other adverse consequences
that may arise from the content of the witness's testimony.

If the witness, in the course of

providing immunized testimony, admits that he lied, cheated, or killed, the witness may not be
prosecuted for that illegal conduct, criminally or civilly; but nothing in the immunity statute or
order protects the witness from being fired by his employer or shunned by his community because of
the misconduct he revealed.

And with respect to all persons other than the witness, immunized

testimony is no different from any other testimony, except that it was compelled.
The petitioners argue that the disclosure of their testimony would "penalize them for invoking
their privilege against self-incrimination" in violation of their orders of immunity and the
statute.

But disclosure is not the penalty from which they are protected by the immunity orders; the

petitioners were granted immunity from prosecution, not from publication or disclosure. Therefore,
the fact that testimony was compelled is irrelevant to the prosecutor's Brady obligation to provide
exculpatory information.

An immunized witness, like others who are not immunized, may prefer that

the testimony not be disseminated by the prosecutor, especially if it would reveal the witness's
dirty deeds, but that preference does not affect whether the information is exculpatory or whether it
should be furnished to other defendants. Once disclosed, the immunized testimony may be used to
impeach the immunized witness, provided that the testimony is not being used against the witness in a
criminal or civil prosecution other than for perjury. In sum, a prosecutor's obligation to disclose
exculpatory information is the same for immunized testimony as for all other testimony. There is no
higher Brady standard applied for a prosecutor to disclose immunized testimony.
d.

Consequence of grand jury secrecy on Brady obligation.

Finally, the petitioners argue

that, "[g]iven that Brady does not compel the disclosure of the information, the Commonwealth should
not be permitted to disclose it in light of the rule that grand jury proceedings are to remain
secret."

As discussed supra, the premise of this argument is incorrect -- a prosecutor is required

to disclose the information at issue to unrelated defendants pursuant to the obligation to disclose
exculpatory information. The petitioners, however, present an alternative argument -- that the
Commonwealth should be required to obtain judicial approval before making such a disclosure. We
address the alternative argument.[14]
It is certainly true that "[t]he requirement that grand jury proceedings remain secret is
deeply rooted in the common law of the Commonwealth." Globe Newspaper Co. v. Police Comm'r of
Boston, 419 Mass. 852, 865 (1995), quoting WBZ-TV4 v. District Attorney for the Suffolk Dist., 408
Mass. 595, 599 (1990).
proceedings."

It is also true that "[s]ecrecy is of fundamental importance to grand jury

Commonwealth v. Holley, 476 Mass. 114, 118 (2016).

"[S]everal interests are served by maintaining strict confidentiality, 'such as protection of the
grand jury from outside influence, including influence by the news media; protection of individuals
from notoriety and disgrace; encouragement of free disclosure of information to the grand jury;
protection of witnesses from intimidation; and enhancement of free grand jury deliberations.'"
Globe Newspaper Co., supra at 865-866, quoting Matter of a John Doe Grand Jury Investigation, 415
Mass. 727, 729 (1993).
Under Mass. R. Crim. P. 5 (d), as appearing in 442 Mass. 1505 (2004), "[a] person performing an
official function in relation to the grand jury may not disclose matters occurring before the grand
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jury except in the performance of his or her official duties or when specifically directed to do so
by the court."

A prosecutor presenting evidence at a grand jury is certainly "performing an official

function in relation to the grand jury," so the issue presented is whether the disclosure of
exculpatory evidence to defense counsel is within the scope of the "the performance of his or her
official duties."
There can be no doubt that the use of inculpatory grand jury testimony to prosecute a defendant
in a criminal case is within the scope of the performance of a prosecutor's official duties. The
disclosure of exculpatory grand jury testimony to defense counsel is equally within the scope of the
performance of a prosecutor's official duties.

For a prosecutor, disclosure of information that may

permit a defendant to prove his or her innocence should be equally as important as securing the
conviction of a guilty party:
"The [prosecutor] is the representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at
all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but
that justice shall be done. As such, he [or she] is in a peculiar and very definite sense the
servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer."
Berger v. United States, 295 U.S. 78, 88 (1935).

See Jackson, The Federal Prosecutor, reprinted in

24 J. Am. Jud. Soc'y 18, 20 (1940) ("A sensitiveness to fair play and sportsmanship is perhaps the
best protection against the abuse of power, and the citizen's safety lies in the prosecutor who
tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not
factional purposes, and who approaches his [or her] task with humility").[15]
We therefore conclude that the disclosure to defense counsel of exculpatory information arising
from a grand jury proceeding is as much a part of a prosecutor's official duty as the presentation of
inculpatory evidence at trial.

Because the disclosure of exculpatory grand jury information is

within the performance of a prosecutor's official duties under rule 5 (d), it may be disclosed
without an order of a court. A judge would have to review the disclosure to defense counsel only if
the prosecutor sought a protective order limiting further dissemination of the information.
Consequently, as to the first three issues identified by the single justice, we conclude, as
did the district attorney, that the prosecutors here have a Brady obligation to disclose the
exculpatory information at issue to unrelated criminal defendants in cases where a petitioner is a
potential witness or prepared a report in the criminal investigation. That obligation remains even
though that information was obtained in grand jury testimony compelled by an immunity order.

And the

district attorney may fulfill that obligation without prior judicial approval; a judge's order is
needed only for issuance of a protective order limiting the dissemination of grand jury information.
More broadly, we conclude that where a prosecutor determines from information in his or her
possession that a police officer lied to conceal the unlawful use of excessive force, whether by himor herself or another officer, or lied about a defendant's conduct and thereby allowed a false or
inflated criminal charge to be prosecuted, the prosecutor's obligation to disclose exculpatory
information requires that the information be disclosed to defense counsel in any criminal case where
the officer is a potential witness or prepared a report in the criminal investigation.
We note that the United States Department of Justice, through its "Policy Regarding the
Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency
Witnesses," known as its "Giglio Policy," has established a procedure whereby Federal prosecutors
obtain potential impeachment information from Federal investigative agencies, such as the Federal
Bureau of Investigation, regarding law enforcement agents and employees who may be witnesses in the
cases they prosecute. United States Department of Justice, Justice Manual, Tit. 9-5.100 (updated
Jan. 2020) (Manual), https://www.justice.gov/jm/jm-9-5000-issues-related-trials-and-other-courtproceedings [https://perma.cc/NKL2-YZ2J].

According to the policy:

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"Prosecutors should have a candid conversation with each potential investigative agency witness
and/or affiant with whom they work regarding any on-duty or off-duty potential impeachment
information, including information that may be known to the public but that should not in fact be the
basis for impeachment in a federal criminal court proceeding, so that prosecuting attorneys can take
appropriate action, be it producing the material or taking steps to preclude its improper
introduction into evidence."
Id. at Tit. 9-5.100(1).

In addition, each United States Attorney's office designates a "requesting

official" who may ask an investigative agency's official to provide potential impeachment information
regarding an agency employee associated with the case or matter being prosecuted. Id. at Tit. 95.100(2)-(4). When a case is initiated within the United States Attorney's office, the prosecutor
responsible for the case, to supplement the information obtained directly from the agency employees
involved in the case, may ask the office's requesting official to obtain from the agency's designated
official any potential impeachment information regarding those agency employees.
5.00(4). Potential impeachment information may include, but is not limited to:

Id. at Tit. 9-

"i) any finding of misconduct that reflects upon the truthfulness or possible bias of the employee,
including a finding of lack of candor during a criminal, civil, or administrative inquiry or
proceeding;
"ii) any past or pending criminal charge brought against the employee;
"iii) any allegation of misconduct bearing upon truthfulness, bias, or integrity that is the subject
of a pending investigation;
"iv) prior findings by a judge that an agency employee has testified untruthfully, made a knowing
false statement in writing, engaged in an unlawful search or seizure, illegally obtained a
confession, or engaged in other misconduct;
"v) any misconduct finding or pending misconduct allegation that either casts a substantial doubt
upon the accuracy of any evidence -- including witness testimony -- that the prosecutor intends to
rely on to prove an element of any crime charged, or that might have a significant bearing on the
admissibility of prosecution evidence . . . ;
"vi) information that may be used to suggest that the agency employee is biased for or against a
defendant . . . ; and
"vii) information that reflects that the agency employee's ability to perceive and recall truth is
impaired."
Id. at Tit. 9-5.100(c)(5).
This policy is not intended to grant any rights to defendants and does not have the force of
law.

Id. at Tit. 9-5.100 (preface).

But it reflects the department's recognition of the need for

prosecutors to learn of potential impeachment information regarding all the investigating agents and
employees participating in the cases they prosecute, so that they may consider whether the
information should be disclosed to defense counsel under the Brady and Giglio line of cases.

See

id. We do not possess the authority to require the Attorney General and every district attorney in
this Commonwealth to promulgate a comparable policy, but we strongly recommend that they do.[16]
2.

Disclosure of false statements to police department.

As earlier noted, the judge denied

the district attorney's motion for an order authorizing the disclosure of information concerning the
petitioners' grand jury testimony to the Fall River police department. The judge concluded that the
department already had substantial information to commence disciplinary proceedings and that the
information the district attorney sought to disclose would provide the department with "no additional
material information." Although the district attorney does not challenge the judge's order, the
single justice asked the parties to address in their briefs, in essence, whether disclosure to the
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police chief would have been permissible if the police department did not already know of the
petitioners' false statements, and whether any such disclosure would require prior judicial approval.
We generally are reluctant to address issues that are not the subject of a live dispute, or
orders that have not been challenged by any of the parties, but we respect the single justice's
implicit recognition that guidance on these matters is needed. We therefore will provide guidance,
albeit limited to the type of false statements at issue in this case.
do not evaluate the merits of the judge's decision in the case.

In providing this guidance, we

Indeed, we address a factual

circumstance quite different from that addressed by the judge -- where the police chief, in the
absence of the requested disclosure by the district attorney, would not know that immunized grand
jury testimony revealed the misconduct of two police officers in the department.
We have already declared, supra, that where a prosecutor determines that a potential police
witness lied to conceal a police officer's unlawful use of excessive force, or lied about a
defendant's conduct and thereby allowed a false or inflated criminal charge to be prosecuted, the
prosecutor's obligation to disclose exculpatory information requires that the information be
disclosed to defense counsel in any case where the officer is a potential witness or prepared a
report in the criminal investigation. Where this disclosure must be made to defense counsel, it must
also be made to the police chief of the department because the consequence of such disclosure is to
jeopardize or, at a minimum, complicate the successful prosecution of any criminal case where the
police officer played a significant role. It would make no sense for the prosecutor and defense
counsel to possess this information, and for the police chief to be deprived of the same
information.

The police chief needs this information to determine whether to fire or otherwise

discipline the officer, place the officer on desk duty, or take other steps to ensure the integrity
of the department and its criminal cases. Because the disclosure of this information arises from the
prosecutor's Brady obligation, no prior judicial approval is required to make this disclosure, even
if it arises from immunized grand jury testimony.
If, however, other police misconduct is revealed through a grand jury investigation that does
not require the prosecutor under his or her Brady obligation to disclose the misconduct to defense
counsel in any case where the officer is a potential witness or prepared a report in the criminal
investigation, prior judicial approval should be obtained before this grand jury information may be
revealed to the officer's police chief. See Mass. R. Crim. P. 6 (d). See also Petition of Craig v.
United States, 131 F.3d 99, 102-103 (2d Cir. 1997) (holding that Fed. R. Crim. P. 6 [e] [3] contains
permissive, not exhaustive, list of reasons for release of grand jury materials, and affirming
nonexhaustive list of factors judges may consider when evaluating "special circumstances" motions to
release grand jury materials). In the absence of a live dispute, and the facts that would accompany
such a dispute, we do not opine as to the circumstances when, if at all, such approval should be
granted.
Conclusion. The case is remanded to the county court for entry of a judgment denying the
petition under G. L. c. 211, § 3, thereby leaving intact the judge's order allowing the district
attorney's motion to make the Brady disclosure.
So ordered.
footnotes
[1] We acknowledge the amicus brief submitted by the American Civil Liberties Union of
Massachusetts, Inc., and the Massachusetts Association of Criminal Defense Lawyers, Inc.
[2] One of the petitioners wrote:
Officers.

"Subject was non-compliant, and threatened to punch

He then refused to comply with verbal commands and was taken to the ground in an effort to

effect an arrest." The other petitioner wrote: "Subject was disorderly, non-compliant, and
threatened to punch officers in the face. Subject was subsequently taken to the ground via an arm
bar take down."

Officer Michael Pessoa's incident report is not part of the record on appeal.

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[3] The arrestee was charged with assault and battery by means of a dangerous weapon (a shod
foot), disorderly conduct (subsequent offense), disturbing the peace, threat to commit a crime,
assault, and resisting arrest.
[4] The videotape is not part of the record on appeal.
[5] The force used by Pessoa was inconsistent with an arm bar take down.
[6] Following the return of indictments against Pessoa, the district attorney entered a nolle
prosequi on the charges against the February 2019 arrestee.
[7] The proposed discovery letter stated in relevant part:
"Please be advised of the following potentially exculpatory discovery from an unrelated
criminal proceeding:
"1. Michael Pessoa, a Fall River police officer, was indicted on June 27, 2019 with a 15-count
indictment, numbered 1973CR00182. The indictment includes allegations that he beat arrestees and
that he filed false police reports.
"2. [PETITIONER 1], a Fall River police officer, has been given a grant of immunity as part of
the Pessoa grand jury investigation. [PETITIONER 1] admitted to filing a false police report.
"3. [PETITIONER 2], a Fall River police officer, has been given a grant of immunity as part of
the Pessoa grand jury investigation. [PETITIONER 2] admitted to filing a false police report.
". . .
"This disclosure is not for public dissemination."
[8] The judge also ordered impounded all filings related to the two motions, as well as the
recording of the argument on the motions.
[9] In Committee for Pub. Counsel Servs. v. Attorney Gen. (CPCS), we noted that while Mass. R.
Crim. P. 14 "envisions a broad disclosure requirement for exculpatory facts, the rule explicitly
identifies only a few specific categories of potentially exculpatory information that a prosecutor
must disclose." CPCS, 480 Mass. 700, 732 (2018), citing Mass. R. Crim. P. 14 (a) (1) (A) (i),
(viii), (ix) ("Commonwealth must disclose defendant's statements, 'promises, rewards or inducements'
given to prosecution witnesses, and statements made during and about identification procedures"). To
provide more detailed guidance to prosecutors, we asked the Supreme Judicial Court's standing
advisory committee on the rules of criminal procedure "to draft a proposed Brady checklist to clarify
the definition of exculpatory evidence" and establish "a more thorough baseline of the most likely
sources and types of exculpatory information for prosecutors to consider."
been amended to include a Brady checklist.

Id.

Rule 14 has not yet

[10] Where a prosecutor recognizes information to be exculpatory, but is unsure whether it
should be disclosed, "due to a concern regarding privilege or work product, or for any other reason,
the prosecutor must file a motion for a protective order and must present the information for a judge
to review in camera." CPCS, 480 Mass. at 733, citing Mass. R. Crim. P. 14 (a) (6).
[11] In Commonwealth v. Almonte, 465 Mass. 224, 241 (2013), we noted that "under the Fed. R.
Evid. 608(b), a party on cross-examination of a witness may inquire into the details of prior
instances of misconduct if probative of the witness's character for veracity." Because the benefit
to the defendant in that case "of an expanded evidentiary rule concerning impeachment on the issue of
veracity would be marginal at best," we left "to another day the question whether we should follow
the guide of the Fed. R. Evid. 608(b), and adopt such a rule more generally."
not the day, or the case, where we need to address that question.

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Id. at 242.

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[12] We also note that our conclusion in Commonwealth v. Lopes, 478 Mass. 593, 606 (2018), that
the judge did not abuse his discretion in barring such impeachment, does not mean that it would have
been an abuse of discretion for the judge to have admitted such evidence.
[13] The immunity orders in this case similarly stated that the petitioners "be granted
immunity from prosecution, and not be subjected to any penalty or forfeiture with respect to the
transaction, matter or thing concerning which he is compelled to testify or produce evidence against
the witness in any Court of the Commonwealth, except in a prosecution for perjury or contempt
committed while giving testimony or producing evidence under compulsion of this order."
[14] After the immunity order issued, the petitioners agreed to be interviewed by the
prosecutor prior to their grand jury appearance. In view of the conclusions we draw, we need not
address whether these interviews are protected by the rules governing grand jury secrecy.
[15] United States Attorney General Robert H. Jackson delivered this address at the Second
Annual Conference of United States Attorneys in Washington, D.C., on April 1, 1940. See Jackson, The
Federal Prosecutor, reprinted in 24 J. Am. Jud. Soc'y 18, 18 (1940).
[16] WBUR radio recently reported that three of the eleven district attorneys in Massachusetts
maintain some form of a list of police officers who were "flagged by prosecutors as either having
engaged in or been accused of misconduct that the [district attorney's] office might legally need to
disclose" to defense counsel because the information is relevant to the credibility of the officers.
See WBUR News, "Few Mass. DAs Keep Police Watch Lists. Constitutional Questions Exist For Those Who
Don't," Aug. 18, 2020, https://www.wbur.org/news
/2020/08/18/police-brady-lists-middlesex-district-attorney [https://perma.cc/NE45-4444].
In addition, we note that prosecutive offices in a number of other States have established
policies or protocols governing the discovery and disclosure of potential exculpatory impeachment
information regarding law enforcement witnesses. See, e.g., Memorandum of the New Jersey Attorney
General, Disclosure of Exculpatory and Impeachment Evidence in Criminal Cases, Brady and Giglio
Practical Application, Investigative Employees and Potential Giglio Material (June 18, 2019), at 5,
https://www.nj.gov/oag/dcj/policies.html [https://perma.cc/YP9W-LY2R ] (noting that "[i]t is
imperative that investigative personnel assist with the prosecuting agency's legal duty to review
and, if necessary, disclose evidence that may impact the credibility of potential investigative State
witnesses," and providing examples of Giglio material); Memorandum of the New Hampshire Attorney
General, The Exculpatory Evidence Protocol and Schedule (March 21, 2017),
https://www.doj.nh.gov/criminal
/documents/exculpatory-evidence-20170321.pdf [https://perma.cc
/GU6X-HUK9 ] (creating protocol for an exculpatory evidence schedule); Washington Association of
Prosecuting Attorneys, Model Policy, Disclosure of Potential Impeachment Evidence for Recurring
Investigative or Professional Witnesses (June 19, 2013), http://waprosecutors.org/manuals/
[https://perma.cc/RHE2-L3Q8] (model guidelines for creation and maintenance of potential impeachment
evidence lists for law enforcement witnesses).

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