Testimony That Can’t Be Used Against a Defendant in a Massachusetts Criminal Case
Most of us have heard of Miranda rights, and the fact that statements made to police, or other witnesses, can be used against a defendant in a court of law. Certainly, then, a defendant’s prior testimony in a court hearing can be used against them, too. As is the case with many attorney responses: it depends. Massachusetts has recognized certain exceptions to this rule.
Exceptions: When the Defendant’s Testimony Cannot be Used at Trial
The basic rule is that a defendant’s prior testimony in a court hearing can be used against him at trial. It has to be relevant, based on first-hand observations, and cannot be “more prejudicial than probative,” and follow the other evidentiary rules. The rules of evidence are intricate and thus, an attorney’s advice can be invaluable.
There are two exceptions that I recently came across in researching clients’ cases. First is that a defendant can testify at a motion to suppress hearing, and such testimony generally cannot be used against him at trial. The second is at a care and protection proceeding.
Defendant’s Testimony at a Motion to Suppress Hearing
In some cases, a defendant’s testimony may be necessary in order for him to establish “standing” to make a Fourth Amendment claim against an unlawful search and seizure. Most criminal defense attorneys will advise their clients not to make statements in advance of trial, to avoid those statements being used against their client at trial. Most of the time, statements made to the police, or others, can be used against a defendant at trial, even if the defendant does not testify at the trial. Therefore, almost no defendant would testify at a motion to suppress hearing to challenge the introduction of evidence from an illegal search because doing so would risk a conviction at trial if the motion to suppress is denied. Thankfully, the courts have carved out an exception.
In Simmons v. United States, the United States Supreme Court held that “when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” Therefore, a defendant can generally testify at the motion to suppress hearing without necessarily conceding those same points at a trial, in case the motion to suppress is denied. Of course, if a defendant chooses to testify at the motion to suppress and then again at trial, he should tell the truth and avoid inconsistent testimony.
Parent / Defendant Testimony at a Care and Protection Trial
A care and protection case is typically filed by the Department of Children and Families (“DCF”) when a parent is accused of abusing or neglecting their child. The proceedings can take a long time, and the end result is to establish whether the parent will lose custody of their chid. It is a big deal, and in many cases, parents are better off testifying in support of their quest to keep their child. However, when the parent also faces a criminal case related to the same allegations, a common concern is whether they should remain silent (which is often the advice a criminal defense attorney gives, while the criminal case is pending).
The Massachusetts Supreme Judicial Court weighed in on the issue, and decided that “a parent’s testimony at a care and protection proceeding ordinarily is inadmissible at a subsequent criminal proceeding.” They reasoned that care and protection cases do not provide as many procedural protections as criminal trials, and also that it would be unfair to make a parent choose between doing everything they can to get their child back or remaining silent to protect their rights in criminal court. In a care and protection case, if the parent doesn’t testify, the court can draw an adverse inference, so it often benefits a parent to testify at these trials, but the opposite may be true in a criminal trial. Be mindful, though, that the prior testimony may still be used as impeachment in the criminal trial, if the parent testifies differently at the subsequent criminal trial.
Deciding to Testify
Whatever the proceeding, deciding whether to testify comes with many considerations. An experienced and knowledgeable defense attorney should assess your individual circumstances to give you advice on your specific situation. If you’re facing criminal charges and a care and protection (“C&P”) case, call Simons Law Office at 781-797-0555 for a free telephone consultation.
Sources:
Commonwealth v. Franklin, 376 Mass. 885, fn. 16.
Simmons v. United States, 390 U.S. 377, 394 (1968)
Care & Protection of M.C., 483 Mass. 444, 451 (2019)
