where “judge’s factual findings [after a hearing] do not support the defendant’s claim of ‘unique circumstances’ which would warrant [the witness’s] immunization, the judge properly declined to order immunity outside the prescribed statutory scheme”
How later courts described this case
- where “judge’s factual findings [after a hearing] do not support the defendant’s claim of ‘unique circumstances’ which would warrant [the witness’s] immunization, the judge properly declined to order immunity outside the prescribed statutory scheme”
- permissible to deny immunity if proffered statement not clearly exculpatory
- “Judicial immunity is not available if the prospective witness is an actual or potential target of prosecution” or if the testimony “is found to be ambiguous, not clearly exculpatory, cumulative or . . . relate[s] only to the credibility of the government’s witnesses”
Written by the judges who cited it.
The opinion
*354 Liacos, J.
(concurring). I agree with the result reached by the majority but concur to express my dissatisfaction with the rule requiring corroboration of declarations against penal interest offered to exculpate the accused. See Commonwealth v. Carr, 373 Mass. 617, 623 (1977). I did not participate in the Carr decision, but welcomed it as a step toward rationality in contrast to the previous common law doctrine followed by this court; that doctrine totally barred the admission of declarations against penal interest.
It is unnecessary for me to set forth the history of our prior opinions, since Justice Kaplan’s excellent and thoughtful opinion sets it out in adequate detail. See Commonwealth v. Carr, supra at 620-623 . The exception to the hearsay rule in the case of declarations against interest was at one time limited to statements against the declarant’s own pecuniary or proprietary interests. 5 J. Wigmore, Evidence § 1476 (Chadbourn rev. 1974). Wigmore described the refusal of the courts to allow declarations against penal interest to qualify as an exception to the hearsay rule as a “barbarous doctrine.” Id. § 1477, at 360.
In recent years, this and other courts have modified the rule to allow admission of declarations against penal interest, with the limitation that when offered to exculpate the accused, the statement must be accompanied by corroborating circumstances which clearly indicate its trustworthiness. Carr, supra at 621-622 . Cf. Fed. R. Evid. 804(b)(3); Proposed Mass. R. Evid. 804 (b) (3).
Such a limitation cannot be justified on grounds of policy. “The only plausible reason of policy that has ever been advanced for [the old rule of exclusion of statements against penal interest] is the possibility of procuring fabricated testimony . . . .” Wigmore, supra § 1477, at 358. This policy cannot justify the corroboration requirement, for fear of fabrication “would be a good argument against admitting any witnesses at all.” Id. at 359. I believe that the corroboration requirement is particularly unnecessary in the hearing on a motion for a new trial where, as here, a judge, presumably astute at discerning perjury, hears the evidence rather than a jury.