Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1649 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	1 of 1
2	2	HOUSE DOCKET, NO. 2638 FILED ON: 1/19/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1649
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Jay D. Livingstone
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to the reliability of testifying informants “testifying informant legislation”.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Jay D. Livingstone8th Suffolk1/19/2023 1 of 4
16	16	HOUSE DOCKET, NO. 2638 FILED ON: 1/19/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 1649
18	18	By Representative Livingstone of Boston, a petition (accompanied by bill, House, No. 1649) of
19	19	Jay D. Livingstone relative to the reliability of testifying informants. The Judiciary.
20	20	The Commonwealth of Massachusetts
21	21	_______________
22	22	In the One Hundred and Ninety-Third General Court
23	23	(2023-2024)
24	24	_______________
25	25	An Act relative to the reliability of testifying informants “testifying informant legislation”.
26	26	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
27	27	of the same, as follows:
28	28	1 SECTION 1. Chapter 233 of the General Laws, as appearing in the 2016 Official Edition,
29	29	2is hereby amended by inserting after Section 21B the following: -
30	30	3 Section. 21C: Reliability of Testifying Informants
31	31	4 (a) Definitions.
32	32	5 (1) For purposes of this Chapter, “testifying informant” means someone who is
33	33	6purporting to testify about admissions made to them by the accused and who has requested or
34	34	7received or may in the future receive a benefit in connection with such testimony.
35	35	8 (2) This Chapter applies to any criminal proceeding in which the Commonwealth
36	36	9attempts to introduce evidence of incriminating statements made by the accused to, or overheard
37	37	10by, a testifying informant. 2 of 4
38	38	11 (3) For the purposes of this Chapter, “benefit” means any plea bargain, bail consideration,
39	39	12reduction or modification of sentence, or any other leniency, immunity, financial payment,
40	40	13reward, or amelioration of current or future conditions of incarceration that has been requested
41	41	14by the testifying informant or that has been offered or may be offered in the future to the
42	42	15testifying informant in connection with his or her testimony in the criminal proceeding in which
43	43	16the prosecutor intends to call him or her as a witness.
44	44	17 (b) Mandatory Documentation and Discovery of Evidence Bearing on Testifying
45	45	18Informant Reliability.
46	46	19 (1) In all cases in which a statement from a testifying informant is sought out, given, or
47	47	20otherwise procured at any stage, each district attorney’s office and the Attorney General’s Office
48	48	21shall create and maintain a centralized record documenting: (1) the complete criminal history of
49	49	22any testifying informant, including any alleged criminal conduct that has not yet resulted in
50	50	23criminal charges; (2) any deals, promises, inducements, or benefits that the Commonwealth has
51	51	24made or will make in the future to the testifying informant or their agent(s); and (3) any and all
52	52	25communications with the testifying informant including but not limited to requested or possible
53	53	26deals, promises, inducements or benefits. The record shall be collected from each district
54	54	27attorney’s office and the Attorney General’s Office by the Executive Office of Public Safety and
55	55	28Security and shall be made available to prosecutors statewide. Such records shall not be subject
56	56	29to the public records act.
57	57	30 (2) In accordance with the pre-trial discovery provisions of the Massachusetts Rules of
58	58	31Criminal Procedure, the Commonwealth shall timely disclose: (1) any alleged criminal conduct
59	59	32by the testifying informant that has not yet resulted in criminal charges; (2) any and all 3 of 4
60	60	33communications between the Commonwealth and the testifying informant or agent of the
61	61	34testifying informant regarding any deal, promise, inducement, or benefit that the offering party
62	62	35has made or will make in the future to the testifying informant, including but not limited any
63	63	36requests made by the testifying informant for a deal, promise, inducement, or benefit; (3) the
64	64	37time and place of any and all incriminating statements purportedly made by the accused to the
65	65	38testifying informant, the time and place of their disclosure by the testifying informant to law
66	66	39enforcement officials, and the names of all persons present when the accused’s statements were
67	67	40made; (4) whether at any time the testifying informant gave inconsistent statements regarding the
68	68	41purported incriminating statements by the accused, and if so, the time and place of the
69	69	42inconsistent statements, the nature of the inconsistencies, and the names of the persons who were
70	70	43present for the inconsistent statement; (5) all other cases or investigations in which the testifying
71	71	44informant testified, provided information, or otherwise assisted with a police investigation or
72	72	45prosecution, including cases or investigations in other Massachusetts counties, and whether in
73	73	46those other cases or investigations the testifying informant received any promise, inducement, or
74	74	47benefit in exchange for or subsequent to that testimony or assistance; (6) any other information
75	75	48relevant to the testifying informant’s credibility.
76	76	49 (3) In accordance with the Massachusetts Rules of Criminal Procedure, the judge may at
77	77	50any time order that the discovery or inspection described herein be denied, restricted, or deferred,
78	78	51or make such other order as is appropriate. The judge may, for cause shown grant discovery to a
79	79	52defendant on the condition that the material to be discovered be available only to counsel for the
80	80	53defendant. This provision does not alter the allocation of the burden of proof with regard to the
81	81	54matter at issue, including privilege.
82	82	55 (c) Reliability hearing. 4 of 4
83	83	56 (1) In accordance with the pre-trial discovery provisions of the Massachusetts Rules of
84	84	57Criminal Procedure, the Commonwealth shall timely disclose its intent to introduce the
85	85	58testimony of a testifying informant.
86	86	59 (2) Where such notice is given, the trial court shall conduct a hearing to determine
87	87	60whether the testimony of the informant is reliable, unless the defendant waives such a hearing.
88	88	61 (3) At the hearing, the Commonwealth shall bear the burden of establishing by a
89	89	62preponderance of the evidence that the proposed informant’s testimony reliable. The court shall
90	90	63consider the factors enumerated in subsection 2(b), as well as any other factors relating to
91	91	64reliability.
92	92	65 (4) If the Commonwealth fails to satisfy its burden of establishing the reliability of the
93	93	66proposed informant testimony by a preponderance of the evidence, the court shall not allow the
94	94	67testimony to be heard at trial.
95	95	68 (5) If a testifying informant receives leniency related to a pending charge, conviction, or a
96	96	69sentence for a crime against a victim in connection with offering or providing testimony against
97	97	70a suspect or defendant, the prosecutor shall notify such victim.