Massachusetts G.L. c. 268, § 13B: Intimidation of Persons Connected to Criminal Proceedings

Massachusetts General Laws Chapter 268, Section 13B makes it a crime to willfully or recklessly engage in certain acts in an attempt to persuade certain persons who are connected to criminal proceedings, including witnesses, jurors, judges, prosecutors, defense attorneys, and others. The attempted persuasion may occur through direct or indirect (1) threats or attempts to cause physical, emotional, or economic injury or property damage; (2) offering, promising, or conveying a gift or anything of value; or (3) misleading, intimidating, or harassing the protected person.

To convict a person under this statute, the government must prove the following three things, each beyond a reasonable doubt:

(1) The defendant, either directly or indirectly, did (or attempted to do) one of the following things to another person:

• Threatened
• Caused physical injury, emotional injury, or economic injury to
• Caused property damage to
• Conveyed a gift, offer, or promise of anything of value to
• Misled
• Intimidated
• Harassed

If the Commonwealth wants to prove that the defendant “harassed” another person, it must show that the defendant engaged in an act that was directed at a specific person or persons, and that (a) act seriously alarms or annoys that person or persons, and (b) would cause a reasonable person to suffer substantial emotional distress. The harassing “act” could occur through mail, e-mail, internet communications, fax communications, or telephone or other telecommunications devices. However, the statute is broad enough to include almost any means of communication.

(2) The other person was one of the following:

• A witness or potential witness in one of the following:
• A criminal investigation;
• A grand jury proceeding;
• A trial; or
• A criminal proceeding of any type;
• A person who was aware of information, records, documents, or objects related to one of the following:
• A violation of a criminal statute;
• A violation of conditions of probation;
• Parole; or
• Bail;
• Any one of the following persons:
• Judge
• Juror
• Grand juror
• Prosecutor
• Police officer
• Federal agent
• Investigator
• Defense attorney
• Clerk
• Court officer
• Probation officer
• Parole officer
• A person who is involved in any of the following types of proceedings:
• Civil
• Criminal
• Probate and family
• Juvenile
• Housing
• Land
• Clerk’s hearing
• Court-ordered mediation
• A person who is attending, was attending, or made it known that he or she was intending to attend, any of the types of proceedings listed above.

If the Commonwealth wants to prove that the other person was an “investigator,” then it must show that the “investigator” was a person or group of individuals who has lawful authorization to conduct or engage in an investigation of an alleged violation of law (including the prosecution or defense of any alleged violation) as part of his or her official duties. The “lawful authorization” must come from (a) the federal government, (b) the Commonwealth, or (c) a political subdivision of either the federal government or the Commonwealth (such as a city or town of the Commonwealth).

(3) The defendant acted either willfully, or with reckless disregard for the impact that his or her conduct would have in interfering with the applicable civil or criminal proceeding. To prove that the defendant acted willfully, the Commonwealth must show that the defendant’s specific purpose or objective was to impede, obstruct, delay, or otherwise interfere with the applicable proceeding. To prove that the defendants acted recklessly, the Commonwealth must show that the defendant knew, or should have known, that his or her actions were very likely to impede, obstruct, delay, or otherwise interfere with the proceeding, and that the defendant ran that risk and acted anyway.

A jury must find that each one of these three elements – that the defendant did one of the above acts, that the act affected one of the persons described above, and that the defendant acted either willfully or recklessly – has been proven beyond a reasonable doubt before a defendant can be convicted of criminal intimidation.

An obvious example of criminal intimidation is when a defendant tells a witness or victim that if he or she gives the police any information about the defendant relating to a crime the police are investigating, then he or she “will be sorry,” and the defendant’s clear intent is to use threats or intimidation to dissuade the witness or victim from participating in the police investigation. However, criminal intimidation does not need to involve a particularly threatening act. For example, if a defendant is seen photographing a witness who had testified against him at a hearing earlier the same day, the defendant’s intent to intimidate the witness may be inferred, and could result in a conviction under the statute.

Similar to the crime of witness intimidation or other criminal intimidation, the Massachusetts General Laws also criminalize bribing or attempting to bribe a juror (G.L. c. 268, § 13), picketing a court to obstruct or influence a proceeding (G.L. c. 268, § 13A), and disrupting court proceedings (G.L. c. 268, § 13C).

In defending a client charged with criminal intimidation, a defense lawyer may show that the Commonwealth has not met its burden of proof on any or all of the three elements it must prove to get a conviction. For example, if the defendant is charged with intimidating a witness, but the Commonwealth has no evidence that the defendant knew or should have known that the person was or might be a witness in a proceeding, then the Commonwealth cannot show that all three elements exist. It is also a defense if the defendant only acted negligently (that is, he or she acted in a way that a reasonable person would not). The specific facts of each case may give rise to additional defenses.

Criminal intimidation is a felony punishable by (i) up to 2 ½ years in jail or in a house of correction, (ii) up to 10 years in state prison, (iii) a fine of at least $1,000, and up to $5,000, or (iv) both a fine and imprisonment.

If you or someone you know has been charged with intimidation of a witness or other act of criminal intimidation, contact the Law Offices of Stephen Neyman, P.C. Attorney Neyman has experience in successfully defending clients against charges of intimidation. Contact us today for a free and confidential consultation at 617-263-6800 or online.