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SJC-11761

COMMONWEALTH vs. ERICK COTTO, JR.

Hampden. December 4, 2014. - April , 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, 

& Hines, JJ.

Controlled Substances. Constitutional Law, Plea, Conduct of 

government agents, Subpoena, Self-incrimination. Due 

Process of Law, Plea, Disclosure of evidence, Presumption.

Practice, Criminal, Plea, Conduct of government agents, 

Disclosure of evidence, Presumptions and burden of proof, 

Subpoena. Evidence, Guilty plea, Certificate of drug 

analysis, Exculpatory, Disclosure of evidence, Presumptions 

and burden of proof, Testimonial privilege. Witness, 

Subpoena, Self-incrimination, Privilege. Privileged 

Communication.

Indictments found and returned in the Superior Court 

Department on June 14, 2007.

A motion to withdraw guilty pleas, filed on April 25, 2013, 

was heard by C. Jeffrey Kinder, J.

The Supreme Judicial Court granted an application for 

direct appellate review. 

Rebecca A. Jacobstein, Committee for Public Counsel 

Services, for the defendant.

Katherine A. Robertson, Assistant District Attorney, for 

the Commonwealth.
2

Luke Ryan, for Rafael Rodriguez, amicus curiae, submitted a 

brief.

Glynis MacVeety, for Deon Charles, amicus curiae, submitted 

a brief.

SPINA, J. On June 14, 2007, a Hampden County grand jury 

indicted the defendant, Erick Cotto, Jr., on charges of 

trafficking in cocaine (twenty-eight to one hundred grams), 

G. L. c. 94C, § 32E (b) (2); unlawful possession of ammunition 

without a firearm identification card, G. L. c. 269, § 10 (h); 

and being an armed career criminal, G. L. c. 269, § 10G (b). 

Sonja Farak, then a chemist at the Department of Public Health's 

State Laboratory Institute in Amherst (Amherst drug lab), tested 

the substances in the defendant's case on June 8, 2007, and 

signed the certificates of drug analysis (drug certificates).1 

Pursuant to a plea agreement, the defendant pleaded guilty on 

April 13, 2009, to trafficking in cocaine (fourteen to twentyeight grams), and unlawful possession of ammunition.2

 

1 Sonja Farak was a chemist for the Department of Public 

Health from July, 2003, until January 19, 2013. During the 

first year of her employment, she worked at the William A. 

Hinton State Laboratory Institute in the Jamaica Plain section 

of Boston. After that, Farak worked at the Department of Public 

Health's State Laboratory Institute in Amherst (Amherst drug 

lab). 

2 With respect to the trafficking charge, the defendant was 

sentenced to from five years to five years and one day in State 

prison. With respect to the ammunition charge, he was sentenced 

to one year in a house of correction, to be served concurrently 

with the sentence on the trafficking charge. 
3

On April 1, 2013, a State grand jury indicted Farak on four 

counts of tampering with evidence, G. L. c. 268, § 13E; four 

counts of theft of a controlled substance (cocaine) from a 

dispensary, G. L. c. 94C, § 37; and two counts of unlawful 

possession of a class B substance (cocaine), G. L. c. 94C, § 34. 

Approximately three weeks later, the defendant filed a motion to 

withdraw his guilty pleas pursuant to Mass. R. Crim. P. 30 (b), 

as appearing in 435 Mass. 1501 (2001). He claimed that Farak 

was a government agent by virtue of her role at the Amherst drug 

lab, that her misconduct was widespread and egregious, and that 

such misconduct antedated his guilty pleas. As a consequence, 

the defendant asserted that because his guilty pleas were based, 

in part, on an assumption that the drug certificates were 

truthful and accurate, his decision to plead guilty was not 

knowing, voluntary, and intelligent. The defendant further 

claimed that Farak's misconduct constituted newly discovered 

evidence that would have had a significant impact on his 

decision to plead guilty and cast serious doubt on the justice 

of his convictions.3 On October 30, 2013, a Superior Court judge 

 

3 In an affidavit dated April 19, 2013, the defendant's 

trial counsel stated that, at the time she advised her client to 

plead guilty, she was not aware of Farak's misconduct. If she 

had been aware of such misconduct prior to the defendant's 

pleas, she would not have advised him to plead guilty. Instead, 

she would have advised the defendant to either negotiate for a 

better plea offer or go to trial. 
4

denied the defendant's motion. Farak pleaded guilty to all ten 

charges on January 6, 2014. 

The defendant appealed, and we granted his application for 

direct appellate review. The defendant now contends that the 

judge abused his discretion by (1) failing to afford the 

defendant the benefit of the conclusive presumption articulated 

in Commonwealth v. Scott, 467 Mass. 336, 352-353 (2014), that 

egregious misconduct by Farak occurred in the defendant's case; 

(2) ignoring direct and circumstantial evidence of misconduct by 

Farak that antedated the entry of the defendant's guilty pleas; 

and (3) finding that the defendant would have pleaded guilty 

notwithstanding Farak's misconduct. The defendant also claims 

that the judge erred by quashing a subpoena that had been issued 

to Farak's spouse, Nikki Lee, where she was a necessary witness 

for the defense. For the reasons set forth below, we vacate the 

order denying the defendant's motion to withdraw his guilty 

pleas, and we conclude that, given the Commonwealth's failure to 

thoroughly investigate the matter of Farak's misconduct at the 

Amherst drug lab, the defendant is entitled to a measure of 

relief, as will be described in detail.4 We remand the case for 

further proceedings in accordance with this opinion.

 

4 We acknowledge the amicus briefs submitted by Rafael 

Rodriguez and Deon Charles, defendants in two other Amherst drug 

lab cases whose motions to withdraw their respective guilty 

pleas were denied. See note 5, infra. Their appeals have been 
5

1. Background on the Amherst drug lab.

5 The Amherst drug 

lab began operation in 1987 with the primary function of 

analyzing suspected controlled substances for law enforcement 

agencies involved in the prosecution of criminal cases in 

western Massachusetts.6 As of January, 2013, there were four 

employees at the facility, and each one could access the 

evidence safe by means of an electronic card or a key. On 

January 17, 2013, the evidence officer at the Amherst drug lab, 

Sharon Salem, was attempting to match drug certificates with the 

corresponding samples when she realized that she was missing the 

samples in two cases. Records reflected that Farak had 

completed testing on those samples earlier in the month and had 

confirmed that the substances were cocaine. On January 18, 

 

stayed by the Appeals Court pending our decision in the present 

case. 

5 In the fall of 2013, the judge in the present case 

conducted an evidentiary hearing on postconviction motions filed 

by fifteen defendants who claimed that alleged criminal conduct 

by Farak rendered their guilty pleas to various drug charges 

unknowing, unintelligent, and involuntary, and that this newly 

discovered evidence cast doubt on the justice of their 

convictions. The evidence presented at the hearing was limited 

to (1) the timing and scope of Farak's alleged criminal conduct; 

(2) the timing and scope of conduct underlying negative findings 

in an October 10, 2012, quality assurance audit of the Amherst 

drug lab by the State police (see note 11, infra); and (3) the 

extent to which Farak's alleged criminal conduct and the audit 

findings might relate to the testing of drug evidence in the 

fifteen defendants' cases. 

6 On July 1, 2012, the responsibility for oversight of the 

Amherst drug lab was transferred from the Department of Public 

Health to the State police. 
6

Salem reported the missing evidence to her supervisor, James 

Hanchett, who searched Farak's work station and discovered, 

among other items, a manila envelope containing the packaging 

for the two missing samples, which had been cut open. Testing 

of the substances in the packaging was negative for cocaine, 

contrary to Farak's earlier analysis. 

Hanchett immediately contacted the State police, who shut 

down the Amherst drug lab and began an investigation. They 

discovered two additional case envelopes in a temporary storage 

locker used by Farak, a location where evidence was not allowed 

to be stored overnight. Although each envelope was supposed to 

contain suspected cocaine, neither did, and a search for those 

substances was unsuccessful. Investigators also interviewed 

Farak's colleagues who said that, beginning in September, 2012, 

they observed a change in Farak's behavior, including frequent 

unexplained absences from her work station and a decrease in 

productivity. 

On January 19, 2013, the State police forensic services 

conducted an inventory of all drug evidence at the Amherst drug 

lab. Only the four above-described samples were missing. A 

similar inventory conducted approximately four months earlier 

had not uncovered any missing samples. Also on January 19, the 

State police searched Farak's vehicle pursuant to a warrant and 

seized, among other items, manila envelopes bearing case 
7

numbers, paperwork relating to the Amherst drug lab, a plastic 

bag containing a white powdery substance and a brown tar-like 

substance, a plastic bag containing assorted pills, and 

photocopies of three newspaper articles about individuals who 

had been investigated, charged, or sentenced for the illegal 

possession or theft of controlled substances.7 Attached to one 

of the articles was a handwritten note stating, "Thank [G]od I'm

not a law enforcement officer" (emphasis in original). 

Farak was arrested at her home that same day. She was 

charged by criminal complaint in the District Court with 

unlawful possession of a class A substance (heroin), unlawful 

possession of a class B substance (cocaine), and two counts of 

tampering with evidence. On January 25, 2013, the State police 

searched a tote bag that had been seized from Farak's work 

station pursuant to a warrant. The bag contained a variety of 

substances that could be used to dilute or replace cocaine 

(soap, baking soda, soy candle flakes, and oven-baked clay), 

 

7 One of the newspaper articles, dated March 29, 2011, had 

been printed from a computer on September 20, 2011, and was a 

story about the illegal possession of steroids by law 

enforcement officers. A second newspaper article, dated 

October 25, 2011, had been printed from a computer on 

October 28, 2011, and was a story about a Pittsfield pharmacist 

being sentenced to three years in prison for stealing OxyContin 

from her workplace. The article mentioned that the pharmacist 

had replaced the OxyContin with other medications. A third 

newspaper article, dated December 2, 2011, had been printed from 

a computer on December 6, 2011, and was a story about a former 

San Francisco police department drug laboratory technician who 

stole cocaine from her workplace. 
8

other items commonly used in the drug trade (plastic laboratory 

dishes, waxed paper, and fragments of copper wire), and several 

evidence bags that had been cut open. The evidence bags bore 

diverse dates from December 16, 2012, to January 6, 2013. 

On April 1, 2013, a State grand jury indicted Farak on four 

counts of tampering with evidence at the Amherst drug lab, four 

counts of stealing cocaine from that facility, and two counts of 

unlawful possession of cocaine. While proceedings were ongoing 

in the Superior Court with respect to these charges, four 

additional cases surfaced in which it seemed, based on 

retesting, that Farak may have removed cocaine from samples that 

were submitted to the Amherst drug lab for analysis between June 

15 and October 10, 2012, and replaced at least some of the 

cocaine with a counterfeit substance. It is not clear from the 

record why this particular evidence was selected for retesting. 

Nonetheless, it does appear that no charges were brought against 

Farak with respect to these four additional cases. On January 

6, 2014, Farak pleaded guilty to all ten charges.

8 

 

8 With respect to the first count of tampering with evidence 

(Count I), Farak was sentenced to two and one-half years in a 

house of correction, with eighteen months to serve, and the 

balance suspended with probation for five years, with special 

conditions. Farak was given the same sentence on the second and 

third counts of tampering with evidence, as well as on three 

counts of theft of a controlled substance, each sentence to run 

concurrently with the sentence on Count I. With respect to each 

of the two counts of unlawful possession of a class B substance, 

Farak was sentenced to serve one year in a house of correction, 

each sentence to run concurrently with the sentence on Count I. 
9

2. Factual and procedural history. In the spring of 2007, 

Springfield police Officer Thomas Nehmer discovered, through the 

use of a confidential informant, that the defendant was selling 

cocaine. On May 4, 2007, based on information received from the 

informant regarding the defendant's involvement in an upcoming 

drug deal, the police established surveillance at the time and 

place of the transaction. When the defendant arrived as 

predicted, he was secured by police and found to be in 

possession of two cellular telephones, ninety-one dollars, and 

what appeared to be approximately eight grams of cocaine. He 

was placed under arrest and transported to the police station. 

Following a waiver of his Miranda rights, the defendant told 

officers that in his bedroom at his residence were packaging 

materials, scales, and approximately thirty grams of cocaine. 

Officer Nehmer applied for and was granted a search warrant. 

When officers searched the defendant's residence, they 

discovered fifty-eight rounds of .22 caliber ammunition, scales, 

cutting agents, and two bags containing substances that appeared 

to be cocaine and weighed approximately forty-four grams. The 

substances were tested by Farak at the Amherst drug lab on 

 

With respect to the fourth count of tampering with evidence and 

the fourth count of theft of a controlled substance, Farak was 

sentenced to five years' probation, to run concurrently with her 

probation on the other charges. 
10

June 8, 2007. According to the drug certificates that she 

signed, each substance tested positive for cocaine.9

On April 13, 2009, after engaging in a thorough colloquy 

with the judge and before Farak's misconduct had become known, 

the defendant pleaded guilty to trafficking in cocaine (fourteen 

to twenty-eight grams), and unlawful possession of ammunition. 

The bases for his subsequent motion to withdraw his guilty pleas 

were twofold. First, the alleged criminal conduct by Farak at 

the Amherst drug lab rendered his guilty pleas unknowing, 

unintelligent, and involuntary. Second, such misconduct 

constituted newly discovered evidence that cast real doubt on 

the justice of his convictions. The judge considered each 

contention in turn. 

In deciding whether the defendant's pleas were knowing, 

voluntary, and intelligent, the judge relied on the analysis 

articulated in Ferrara v. United States, 456 F.3d 278, 290 (1st 

Cir. 2006).10 He stated that a defendant seeking to set aside a 

guilty plea as involuntary must show that (1) the government or 

its agents committed some egregiously impermissible conduct that 

 

9 According to the Commonwealth, the drugs seized from the 

defendant have been destroyed. 

10 At the time the judge ruled on the defendant's motion to 

withdraw his guilty pleas, he did not have the benefit of our 

decision in Commonwealth v. Scott, 467 Mass. 336 (2014), which 

also relied on the analysis set forth in Ferrara v. United 

States, 456 F.3d 278, 290 (1st Cir. 2006).
11

antedated the entry of the plea, and (2) the misconduct was 

material to the defendant's choice to plead guilty. See id. 

With regard to the first part of the inquiry, the judge 

concluded that, given Farak's role at the Amherst drug lab, she 

must be deemed to be an agent of the Commonwealth. Next, the 

judge considered whether Farak's alleged misconduct antedated 

the defendant's guilty pleas on April 13, 2009. The judge said 

that, although there was "powerful evidence" that Farak had 

engaged in egregiously impermissible conduct by stealing cocaine 

and replacing it with other substances, he was not persuaded 

that she was doing so at the time of the defendant's guilty 

pleas. Therefore, the defendant failed to establish that 

Farak's misconduct antedated his guilty pleas. Further, in the 

judge's view, the negative findings made during an October, 

2012, quality assurance audit of the Amherst drug lab were 

disconcerting, but there was no evidence that these general 

deficiencies had any bearing on the testing performed in the 

defendant's case.11 As such, the findings of the audit did not 

 

11 On October 10, 2012, the State police conducted a quality 

assurance audit of the Amherst drug lab. It was a routine 

matter in the sense that quality assurance audits are conducted 

at all State police laboratories every year, but this facility 

never had been audited. See note 6, supra. Among other 

purposes, the audit was designed to determine what steps the 

Amherst drug lab would have to take in order to meet 

accreditation standards required by the American Society of 

Crime Lab Directors/Laboratory Accreditation Board. The Amherst 

drug lab had not been accredited since it began operation in 

1987 and, in fact, all State police laboratories operated 
12

amount to the kind of egregiously impermissible government 

conduct contemplated by the Ferrara case.

The judge then considered the second part of the Ferrara

inquiry, namely whether Farak's misconduct would have been 

material to the defendant's decision to plead guilty. The judge 

stated that there was no evidence that the test results in this 

case were inaccurate, or that Farak was involved in any 

misconduct at the time of the defendant's guilty pleas. 

Moreover, he continued, there were good reasons for the 

defendant to accept the plea agreement. Given the strength of 

the Commonwealth's case (including the defendant's own 

incriminating statements), the significant benefit the defendant 

received from the plea agreement, and the absence of any 

 

without accreditation prior to 2002. The negative findings in 

the October, 2012, audit of the Amherst drug lab included the 

following: chain of custody with respect to evidence kept in 

short-term overnight storage was not documented appropriately, 

and evidence retained in such storage was not sealed properly; 

evidence seals were initialed, but not dated, by the chemists; 

variances between weights of substances on arrival and weights 

at testing were not documented; and inventory discrepancies were 

not verified. In addition, so-called "reagents" were not 

regularly tested, and known drug standards were not verified on 

a daily basis. The audit team recommended steps to remediate 

each of these problems, and personnel at the Amherst drug lab 

took measures to address the negative findings. Cathleen 

Morrison, a member of the audit team and an author of the audit 

report, testified at the evidentiary hearing, see note 5, supra, 

that the audit did not raise any questions regarding the 

reliability of the testing performed at the Amherst drug lab. 

The judge concluded that, although the negative findings in the 

audit "reflect[ed] a lax atmosphere in which theft of controlled 

substances could go undetected for a period of time, the audit 

did not reveal any unreliable testing." 
13

evidence that Farak's misconduct affected the drug testing in 

the defendant's case, the judge concluded that Farak's 

misconduct would not have been material to the defendant's 

decision to plead guilty, even if such misconduct had antedated 

the defendant's pleas. The judge also found that the negative 

audit of the Amherst drug lab failed to satisfy the threshold of 

materiality required to invalidate the defendant's guilty pleas. 

Accordingly, based on the totality of the circumstances, the 

judge concluded that the defendant had failed to establish that 

his guilty pleas were not knowingly, intelligently, and 

voluntarily made. 

Finally, the judge considered whether Farak's misconduct at 

the Amherst drug lab constituted newly discovered exculpatory 

evidence that cast real doubt on the justice of the defendant's 

convictions. The judge first determined that there was no 

evidence that the defendant or his attorney was aware of Farak's 

misconduct or the negative audit, or that either reasonably 

could have been discovered at the time of the defendant's pleas. 

Therefore, the judge continued, the evidence of Farak's 

misconduct, in particular, and the administrative problems at 

the Amherst drug lab, in general, qualified as "newly 

discovered." However, for all of the reasons he already had 

articulated, the judge stated that this newly discovered 

evidence was "not sufficiently weighty, potent, or pertinent to 
14

the fundamental issues of this case to be worthy of 

consideration at a new trial." 

3. Standard of review. A motion to withdraw a guilty plea 

is treated as a motion for a new trial pursuant to Mass. R. 

Crim. P. 30 (b). Commonwealth v. Furr, 454 Mass. 101, 106

(2009). "Under Mass. R. Crim. P. 30 (b), a judge may grant a 

motion for a new trial any time it appears that justice may not 

have been done. A motion for a new trial is thus committed to 

the sound discretion of the judge." Scott, 467 Mass. at 344. 

We review the allowance or denial of a motion to withdraw a 

guilty plea to determine whether the judge abused that 

discretion or committed a significant error of law. Id. We 

accept the judge's findings of fact if they are supported by the 

evidence, because the judge who heard the witnesses testify is 

the "final arbiter [on] matters of credibility." Id., quoting 

Commonwealth v. Schand, 420 Mass. 783, 787 (1995).

4. Discussion. Due process requires that a plea of guilty 

be accepted only where "the contemporaneous record contains an 

affirmative showing that the defendant's plea was intelligently 

and voluntarily made." Furr, 454 Mass. at 106, citing Boykin v. 

Alabama, 395 U.S. 238 (1969), and Commonwealth v. Foster, 368 

Mass. 100, 102 (1975). "A guilty plea is intelligent if it is 

tendered with knowledge of the elements of the charges against 

the defendant and the procedural protections waived by entry of 
15

a guilty plea." Scott, 467 Mass. at 345. See Commonwealth v. 

Duest, 30 Mass. App. Ct. 623, 630-631 (1991). "A guilty plea is 

voluntary so long as it is tendered free from coercion, duress, 

or improper inducements." Scott, supra. Typically, a motion to 

withdraw a guilty plea will allege a facial defect in the plea 

procedures, but a guilty plea "also may be vacated as 

involuntary because of external circumstances or information 

that later comes to light." Id., and cases cited.

We begin by reviewing the framework for analyzing the 

defendant's motion to withdraw his guilty pleas. In Ferrara, 

456 F.3d at 280, 284, 290-293, the United States Court of 

Appeals for the First Circuit analyzed whether blatant 

misconduct by the government, discovered more than ten years 

after entry of the defendant's guilty plea, could render such 

plea involuntary. The prosecutor in Ferrara deliberately 

manipulated a key witness, failed to disclose exculpatory 

evidence, and affirmatively misrepresented the nature of the 

witness's planned testimony. Id. at 291-293. The court 

concluded that when a defendant seeks to vacate a guilty plea as 

a result of underlying government misconduct, rather than a 

defect in the plea procedures, the defendant must show both that 

"egregiously impermissible conduct . . . by government agents 

. . . antedated the entry of his plea," and that "the misconduct 

influenced his decision to plead guilty or, put another way, 
16

that it was material to that choice." Id. at 290. Relying on 

Ferrara, this court articulated in Scott, 467 Mass. at 346-358, 

a two-prong framework for analyzing a defendant's motion to 

withdraw his guilty plea under Mass. R. Crim. P. 30 (b) in a 

case involving the misconduct of Annie Dookhan, a chemist at the 

William A. Hinton State Laboratory Institute's forensic drug 

laboratory (Hinton drug lab) from 2003 to 2012. Under the first 

prong of the analysis, a defendant must show egregious 

misconduct by the government that preceded the entry of the 

defendant's guilty plea and that occurred in the defendant's 

case. Id. at 347-354. Under the second prong of the analysis, 

a defendant must demonstrate a reasonable probability that he or 

she would not have pleaded guilty had he or she known of the 

government misconduct. Id. at 354-358.

We recognized in Scott that, given the breadth and duration 

of Dookhan's malfeasance, it might be impossible for a defendant 

to show the required nexus between the government misconduct and 

the defendant's own case. Scott, 467 Mass. at 351-352. 

Dookhan's "insidious" misconduct, "which belie[d] 

reconstruction, [was] a lapse of systemic magnitude in the 

criminal justice system." Id. at 352. Consequently, we 

established a special evidentiary rule whereby a defendant 

seeking to vacate a guilty plea under rule 30 (b) as a result of 

the revelation of Dookhan's misconduct, and proffering a drug 
17

certificate from the defendant's case signed by Dookhan on the 

line labeled "Assistant Analyst," would be entitled to "a 

conclusive presumption that egregious government misconduct 

occurred in the defendant's case." Id. Application of this 

conclusive presumption in a particular case meant that a 

defendant's evidentiary burden to establish each element of the 

first prong of the Ferrara-Scott framework was satisfied. Id. 

at 353-354. We emphasized in Scott that this special 

evidentiary rule is unique in that it is "a remedy dictated by 

the particular circumstances surrounding Dookhan's misconduct as 

a chemist at the Hinton drug lab and is intended to apply only 

to this narrow class of cases in which a defendant seeks to 

withdraw his or her guilty plea after having learned of 

Dookhan's misconduct." Id. Further, we stated that "[s]hould 

the Ferrara analysis be applied in the case of a motion for a 

new trial under Mass. R. Crim. P. 30 (b) that does not arise 

from the investigation of Dookhan, the defendant will have the 

burden to establish each element of the first prong of Ferrara, 

and the adequacy of the defendant's showing will be committed to 

the sound discretion of the motion judge" (emphasis added). Id. 

at 354.

a. Prong one of the Ferrara-Scott analysis: egregious 

misconduct by the government in the defendant's case. In the 

present appeal, the defendant contends that Farak's misconduct 
18

at the Amherst drug lab was egregious, and that Farak was a 

government agent such that her misconduct is attributable to the 

Commonwealth. Moreover, in the defendant's view, Farak's 

misconduct was systemic in magnitude. As a consequence, the 

defendant argues, he was entitled to the conclusive presumption 

articulated in Scott, 467 Mass. at 352-353, and, therefore, he 

was not required to prove that such misconduct occurred in his 

own case. The defendant asserts that even if this court does 

not apply the conclusive presumption, it still should determine 

that, because there was direct and circumstantial evidence 

suggesting that Farak's misconduct antedated the entry of his 

guilty pleas, misconduct must have occurred in his case. Given 

all of these circumstances, the defendant contends that the 

discovery of Farak's egregious misconduct after he had tendered 

his guilty pleas rendered those pleas unknowing, unintelligent, 

and involuntary. As such, the defendant continues, the judge 

abused his discretion in denying the defendant's motion to 

withdraw his guilty pleas.12 We agree with the defendant that 

 

12 In Scott, the defendant argued that "relief [might] be 

available to him under Brady v. Maryland, 373 U.S. 83, 87 

(1963), as a result of the prosecution's failure to disclose the 

potentially exculpatory evidence of Dookhan's misconduct to the 

defendant prior to his guilty plea." Scott, 467 Mass. at 346 

n.5. In the present case, the defendant has not raised such an 

argument, presumably because evidence of misconduct by Farak had 

not yet come to light at the time the defendant pleaded guilty 

on April 13, 2009. As such, there was nothing for the 

Commonwealth to disclose.
19

Farak's misconduct was egregious and that it is attributable to 

the Commonwealth. However, based on the evidence of her 

misconduct that has been uncovered thus far, we disagree with 

the defendant that he is entitled to the conclusive presumption 

articulated in Scott, or, alternatively, that he has shown that 

Farak's malfeasance antedated the entry of his guilty pleas. 

Nonetheless, given the absence of a thorough investigation into 

the matter by the Commonwealth, and the cloud that overshadows 

the integrity of drug analyses performed by Farak at the Amherst 

drug lab, we conclude that the defendant is entitled to a 

measure of relief, as will be described. We turn to the 

Ferrara-Scott framework.

i. Egregious misconduct. On January 6, 2014, Farak 

pleaded guilty to, among other offenses, four counts of 

tampering with evidence at the Amherst drug lab and four counts 

of stealing cocaine from that facility. There is no dispute 

between the parties that this constituted "egregious misconduct" 

by Farak. She was entrusted with analyzing purported drug 

samples, signing drug certificates that identified and set forth 

the precise weight of each sample, and testifying to the results 

of her analyses. By tampering with evidence, Farak cast serious 

doubt on the integrity of this entire process. Her misconduct 

could render a defendant's guilty plea involuntary by wholly 

undermining the evidentiary foundation of the Commonwealth's 
20

case. We conclude that Farak's misconduct constitutes the type 

of egregious misconduct that satisfies the first element of the 

first prong of the Ferrara-Scott analysis. See Scott, 467 Mass. 

at 347-348. See also Ferrara, 456 F.3d at 290-293.

ii. By the government. The defendant contends that 

because Farak was a government agent, her misconduct is 

attributable to the Commonwealth. In contrast, the Commonwealth 

argues that Farak's misconduct, while egregious, was an 

individual unlawful scheme and, as such, should not be 

attributable to the Commonwealth. We agree with the defendant's 

position.

In Scott, 467 Mass. at 348-350, we considered various 

circumstances where actions by a range of government agents 

might constitute misconduct "by the government" that could 

render a defendant's guilty plea involuntary. See, e.g., United 

States v. Fisher, 711 F.3d 460, 467 (4th Cir. 2013) (law 

enforcement officer's conduct in lying in search warrant 

affidavit in defendant's case, regardless of prosecutor's lack 

of actual knowledge of officer's wrongdoing, constituted 

impermissible government conduct). In the related context of a 

prosecutor's duty to disclose exculpatory evidence to the 

defense, we pointed out that, generally speaking, "the 

prosecutor's duty does not extend beyond information held by 

'agents of the prosecution team,'" Scott, supra at 349, quoting 
21

Commonwealth v. Thomas, 451 Mass. 451, 454 (2008), but that 

"individuals other than prosecutors and police may be considered 

agents of the prosecution team." Scott, supra. See 

Commonwealth v. Martin, 427 Mass. 816, 824 (1998) (prosecutor's 

duty to disclose exculpatory evidence extends to information in 

possession of chemist at State police crime laboratory who "has 

participated in the investigation or evaluation of the case and 

has reported to the prosecutor's office concerning the case"); 

Commonwealth v. Woodward, 427 Mass. 659, 679 (1998) (medical 

examiner considered to be agent of Commonwealth). We concluded 

in Scott that Dookhan, in her role as a chemist at the Hinton 

drug lab, was an agent of the Commonwealth whose misconduct was 

attributable to the government for the limited purposes of the 

Ferrara analysis. Scott, 467 Mass. at 349-350. Significantly, 

it appeared from the record that Dookhan had engaged in 

egregious misconduct "to further what she perceived to be the 

mission of the Commonwealth" -- getting criminals off the 

streets -- and not to further her own "individual unlawful 

scheme." Id. at 350, quoting Commonwealth v. Waters, 410 Mass. 

224, 230 (1991). Contrast Commonwealth v. Campiti, 41 Mass. 

App. Ct. 43, 65-66 (1996) (defendant not entitled to new trial 

where State police officer involved in investigation of 

defendant embezzled money from district attorney's office to 
22

support gambling habit, but where such activity did not taint 

voluminous evidence against defendant).

Farak, like Dookhan, was an agent of the prosecution team, 

given that, where she was the analyst for a purported drug 

sample recovered from a defendant, she "participated in the 

investigation or evaluation of the case" and "reported to the 

prosecutor's office concerning the case." Scott, supra at 349, 

quoting Martin, 427 Mass. at 824. In addition, Farak was 

"expected to testify as [an] expert witness[] regarding the 

testing of samples in various criminal prosecutions." Scott,

supra at 350. Admittedly, it appears from the record that Farak 

was tampering with evidence at the Amherst drug lab in order to 

support her own cocaine habit. Nonetheless, the effect of her 

misconduct was to raise serious questions about the integrity of 

her work on behalf of the Commonwealth. With respect to at 

least eight known cases, it seems apparent that Farak's actions 

tainted the drug analysis process which, in turn, raises 

concerns about the reliability of her analyses in other cases 

where she was the assistant analyst. Such malfeasance goes 

right to the heart of the Commonwealth's ability to convict a 

defendant in a drug case and, therefore, is directly related to 

"the Commonwealth's interest in law enforcement." Waters, 410 

Mass. at 230. Farak's misconduct was not merely an "individual 

unlawful scheme," id., and, as such, is attributable to the 
23

Commonwealth. The defendant has satisfied the second element of 

the first prong of the Ferrara-Scott analysis. See Scott, 467 

Mass. at 348-350. See also Ferrara, 456 F.3d at 290-293.

iii. In the defendant's case. Finally, the third element 

of the first prong of the Ferrara-Scott analysis requires the 

defendant to show that egregious misconduct by Farak antedated 

the entry of his guilty pleas and occurred in his own case. See

Scott, supra at 350-354. See also Ferrara, supra at 290. The 

defendant asserts that he was entitled to the conclusive 

presumption articulated in Scott, supra at 352-353, and, 

therefore, he was not required to prove that Farak's misconduct 

occurred in his case. Further, the defendant continues, even if 

this court does not apply the conclusive presumption, it still 

should determine that, because there was both direct and 

circumstantial evidence suggesting that Farak's misconduct 

antedated the entry of his guilty pleas, misconduct must have 

occurred in his case. We conclude that the evidence on which 

the defendant relies is not sufficient, at this juncture, to 

establish either that Farak's misconduct constituted a systemic 

problem warranting application of the conclusive presumption, or 

that her misconduct antedated the entry of the defendant's 

guilty pleas.

In Scott, we determined that "furnishing a drug certificate 

signed by Dookhan as a primary or secondary chemist in the 
24

defendant's case [was] sufficient to establish the requisite 

nexus between the defendant's case and Dookhan's misconduct." 

Scott, 467 Mass. at 354. Our bases for establishing a 

conclusive presumption that "egregious government misconduct 

occurred in the defendant's case" were our reasonable certainty 

that Dookhan's misconduct "touched a great number of cases," and 

that it was a "lapse of systemic magnitude in the criminal 

justice system" that "belie[d] reconstruction." Id. at 352. In 

the present case, no such reasonable certainty exists.

Unlike the circumstances in Scott where the State police 

detective unit of the Attorney General's office conducted a 

broad formal investigation into Dookhan and her practices at the 

Hinton drug lab, see Scott, 467 Mass. at 339, the Commonwealth's 

investigation into the timing and scope of Farak's misconduct 

has been cursory at best. Nonetheless, based on the record 

before us, only eight cases thus far have surfaced in which it 

appears that Farak tampered with evidence at the Amherst drug 

lab, beginning perhaps in the summer of 201213 and continuing 

 

13 The motion judge was not persuaded that it was reasonable 

to infer from Farak's possession of the newspaper articles that 

were printed in the fall of 2011, see note 7, supra, that she 

was stealing controlled substances at that time. We conclude 

that the judge did not abuse his discretion in making this 

determination.
25

until January, 2013.14 It goes without saying that eight cases 

are eight cases too many. However, the scope of Farak's 

misconduct does not appear to be, at this point in time, 

comparable to the enormity of Dookhan's misconduct at the Hinton 

drug lab. Among other wrongdoing, Dookhan admitted to "dry 

labbing," contaminating drug samples (including converting 

negative samples into positive samples), removing drug samples 

from the lab's evidence locker in violation of protocol, failing 

to verify the proper functioning of lab equipment, and 

falsifying reports to hide her misconduct. See Scott, supra at 

339-341. In addition, Dookhan "acknowledged to investigators 

that she [might] not be able to identify those cases in which 

she tested the samples properly and those in which she did not," 

id. at 339, rendering it virtually impossible to ascertain the 

full extent of Dookhan's misconduct during her tenure at the 

Hinton drug lab, which spanned approximately ten years. There 

is no indication on the record before us that Farak's misconduct 

presents a comparable situation. Therefore, the defendant is 

not entitled to the benefit of the conclusive presumption 

articulated in Scott, supra at 352-353, that egregious 

misconduct by Farak occurred in his case.

 

14 As far as we can tell, Farak has not provided any details 

concerning the timing and scope of her misconduct, apart from 

pleading guilty to the ten indictments. 
26

That said, the systemic nature of Dookhan's misconduct only 

came to light following a thorough investigation of the Hinton 

drug lab by the State police detective unit of the Attorney 

General's office. See Scott, 467 Mass. at 339-341. As far as 

we are able to discern, no such investigation of the Amherst 

drug lab has occurred. In another case decided today concerning 

Farak's misconduct at that facility, Commonwealth v. Ware,

ante , (2015), we stated that "the Commonwealth ha[s] a 

duty to conduct a thorough investigation to determine the nature 

and extent of [Farak's] misconduct, and its effect both on 

pending cases and on cases in which defendants already had been 

convicted of crimes involving controlled substances that Farak 

had analyzed." The Commonwealth's obligation to conduct an 

investigation is premised on a prosecutor's "duty to learn of 

and disclose to a defendant any exculpatory evidence that is 

'held by agents of the prosecution team,'" who include chemists 

working in State drug laboratories. Id., quoting Commonwealth

v. Beal, 429 Mass. 530, 532 (1999). It is incumbent on the 

Commonwealth to perform this duty in a timely fashion. The 

burden of ascertaining whether Farak's misconduct at the Amherst 

drug lab has created a problem of systemic proportions is not 

one that should be shouldered by defendants in drug cases. See 

generally Scott, supra at 353. At the same time, given what we 

know, we have no basis for concluding in the present case that 
27

Farak's misconduct is a "lapse of systemic magnitude in the 

criminal justice system." Id. at 352.

In a related vein, when considering the nexus between the 

government misconduct and the defendant's case, we agree with 

the motion judge that, although there is compelling evidence 

that Farak was stealing cocaine and replacing it with 

counterfeit substances, the defendant has not shown that Farak's 

misconduct antedated the entry of his guilty pleas and, 

therefore, must have occurred in his case. Farak analyzed the 

drugs in the defendant's case on June 8, 2007. The defendant 

pleaded guilty to trafficking in cocaine (fourteen to twentyeight grams) and unlawful possession of ammunition on April 13, 

2009. Farak was arrested on January 19, 2013, for misconduct 

that was alleged to have occurred the previous day. The judge 

stated that powerful circumstantial evidence suggested that this 

was not the first time that Farak had tampered with drug samples 

at the Amherst drug lab. The judge pointed out that the 

retesting of a small number of drug samples that originally had 

been analyzed by Farak indicated that she was tampering with 

evidence during the summer of 2012. Moreover, during the fall 

of 2012, Farak's coworkers began to observe a change in her 

behavior, including frequent unexplained absences from her work 

station and a decrease in productivity. From these facts and 

all of the physical evidence seized in connection with the 
28

criminal investigation of Farak, the judge concluded that 

Farak's misconduct postdated the defendant's guilty pleas by 

almost three years. 

The defendant contends that the judge abused his discretion 

by not considering "strong circumstantial evidence of 

malfeasance" by Farak dating back to the start of her tenure as 

an analyst, suggesting a prolonged period of wrongdoing. The 

defendant posits that Farak must have engaged in misconduct 

while she was working at the Hinton drug lab from the summer of 

2003 until the summer of 2004, see note 1, supra, because her 

high volume of drug testing rivaled that of Dookhan, who 

admitted to "dry labbing." The defendant has offered no 

supporting evidence to substantiate this claim, and, in our 

view, it is wholly speculative. With respect to Farak's work at 

the Amherst drug lab, her supervisor testified at the 

evidentiary hearing, see note 5, supra, that Farak's 

productivity was comparable to that of her colleague in the lab. 

The defendant also claims that there was evidence that Farak 

used cocaine in 2000. Even if that were true, it does not 

support an inference that Farak must have been tampering with 

evidence in the Amherst drug lab prior to April 13, 2009. We 

conclude that the judge did not abuse his discretion in 

determining that the defendant failed to show that egregious 
29

misconduct by Farak antedated the entry of his guilty pleas and, 

therefore, must have occurred in his case.15

Based on the Ferrara-Scott framework for reviewing a 

defendant's motion to withdraw his guilty pleas, the defendant 

here has not satisfied his burden of establishing each element 

of the first prong of the analysis. That said, it is clear from 

the record that Farak engaged in egregious misconduct at the 

Amherst drug lab, and that any deficiencies in the evidence as 

 

15 The defendant also directs our attention to other 

purported evidence of likely tampering that, in his view, 

demonstrates that Farak was engaged in misconduct at the Amherst 

drug lab long before the summer of 2012. In the so-called Finch 

and Espinosa cases, a Springfield police detective on March 17, 

2012, submitted suspected Oxycodone pills to the Amherst drug 

lab for testing, but, after analysis, Farak concluded that the 

pills did not contain any controlled substances. In 

Commonwealth vs. Berube, Hampden Super. Ct., No. 2011-00355 

(Oct. 30, 2013), a Springfield police officer testified that not 

all of the controlled substances presented at the trial were in 

the same condition as when the officer had seized them. Farak 

analyzed the substances in that case on May 12, 2011. 

Similarly, in Commonwealth vs. Carter, Hampden Super. Ct., No. 

2010-00115 (Nov. 15, 2013), the evidence presented at the trial 

(whitish pills) appeared to be different from the evidence that 

was seized by the police (blue pills). Farak analyzed the 

substances in that case on December 17, 2009. Finally, 

photocopies of three newspaper articles about individuals who 

had been investigated, charged, or sentenced for the illegal 

possession or theft of controlled substances had been printed 

from a computer in the fall of 2011 and were found in Farak's 

vehicle. See note 7, supra. Farak tested the substances in the 

defendant's case on June 8, 2007. Given that the defendant 

pleaded guilty on April 13, 2009, and that all of this purported 

evidence relates to activities that occurred thereafter, it does 

not support the defendant's contention that Farak's misconduct 

antedated the entry of his guilty pleas, which is the relevant 

inquiry under the Ferrara-Scott framework. See Scott, 467 Mass. 

at 350-354. See also Ferrara, 456 F.3d at 290.
30

to the scope and timing of her misconduct are attributable to 

the Commonwealth in light of its failure to conduct a thorough 

investigation of the matter. Therefore, "it is incumbent upon 

us to exercise our superintendence power to fashion a workable 

approach" for giving defendants whose evidence samples were 

analyzed by Farak at the Amherst drug lab an opportunity to 

discover whether, in fact, their cases were affected by her 

misconduct. Scott, 467 Mass. at 352. Clearly, the scope of 

Farak's misconduct was wider than the ten charges to which she 

pleaded guilty, given that at least four additional cases have 

surfaced in which it appears that she tampered with evidence, 

but with respect to which no charges were filed.

In the absence of a thorough investigation by the 

Commonwealth into Farak's misconduct, we conclude that the 

following procedures should be implemented. In cases where a 

defendant seeks to vacate a guilty plea under Mass. R. Crim. P. 

30 (b) as a result of the revelation of Farak's misconduct at 

the Amherst drug lab, where the defendant proffers a drug 

certificate from the defendant's case signed by Farak on the 

line labeled "Assistant Analyst," and where the drug samples 

have not yet been destroyed, the defendant is entitled to retest 

those samples. Drug samples that are part of a defendant's case 

are "tangible objects" subject to mandatory discovery under 

Mass. R. Crim. P. 14 (a) (1) (A) (vii), as amended, 442 Mass. 
31

1518 (2004). See Commonwealth v. Williams, 456 Mass. 857, 870-

871 (2010) ("The Commonwealth's responsibility to provide 

discovery to the defendant extends to material in its 

possession, custody, or control, and includes information in the 

possession of persons who have participated in the investigation 

or evaluation of the case and who report to the prosecutor's 

office concerning the case"). Cf. Commonwealth v. Mitchell, 444 

Mass. 786, 795 (2005) (defendant has "unquestioned right, under 

the Sixth Amendment to the United States Constitution and art. 

12 of the Massachusetts Declaration of Rights, to obtain 

relevant evidence that bears on the question of his guilt or 

innocence or which otherwise will help his defense"). By such 

retesting, a defendant can ascertain definitively whether Farak 

tampered with the drug samples that were used to convict, 

thereby establishing the requisite "nexus between the government 

misconduct and the defendant's own case."16 Scott, 467 Mass. at 

351.

More problematic are those cases, like the present one, 

where a defendant seeks to vacate a guilty plea under rule 

30 (b) as a result of the revelation of Farak's misconduct, but 

the defendant's drug samples have been destroyed. See note 9, 

 

16 General Laws c. 94C, § 47A, requires the Commonwealth to 

obtain a court order each and every time it wishes to destroy 

narcotics evidence. Trial judges should be very cautious in 

allowing motions to destroy such evidence where the narcotics 

have been analyzed at the Amherst drug lab.
32

supra. It is imperative that the Commonwealth thoroughly 

investigate the timing and scope of Farak's misconduct at the 

Amherst drug lab in order to remove the cloud that has been cast 

over the integrity of the work performed at that facility, which 

has serious implications for the entire criminal justice system. 

Within one month of the issuance of this opinion, the 

Commonwealth shall notify the judge below whether it intends to 

undertake such an investigation. If so, the investigation shall 

begin promptly and shall be completed in an expeditious manner.

As just stated, in our view, a thorough and timely 

investigation would be the appropriate course to follow in the 

circumstances. In the absence of such an investigation, 

however, and where an individual defendant's drug samples have 

been destroyed, the judge, among other options, may entertain 

discovery motions to retest randomly selected drug samples that 

were tested by Farak and are still in existence in an effort to 

determine whether evidence of tampering can be identified and to 

establish the time frame of Farak's misconduct. The results of 

the Commonwealth's investigation, or the evidence that can be 

gleaned from retesting, will dictate how the judge shall 

proceed, and we leave that matter to the judge's discretion.

We reiterate that under the first prong of the FerraraScott analysis, a defendant must show egregious misconduct by 

the government that preceded the entry of the defendant's guilty 
33

pleas, and occurred in the defendant's case. See Scott, 467 

Mass. at 347-354. See also Ferrara, 456 F.3d at 290. In the 

absence of evidence suggesting a problem of systemic magnitude 

at the Amherst drug lab, but nonetheless indicating a serious 

problem of undefined proportions, we afford the defendant here, 

and others in a similar position, the opportunity to show, 

through the retesting of drug samples, that Farak's misconduct 

preceded the entry of his guilty pleas and occurred in his own 

case. Satisfaction of the first prong of the Ferrara-Scott

analysis is not, however, the end of the judge's inquiry 

regarding whether to allow the defendant's motion to withdraw 

his guilty pleas under Mass. R. Crim. P. 30 (b). We turn now to 

the second prong of the Ferrara-Scott analysis.

b. Prong two of the Ferrara-Scott analysis: material 

influence on the defendant's decision to plead guilty. The 

defendant contends that the judge erred in determining that, 

even if Farak's misconduct had antedated the defendant's guilty 

pleas, he still would have entered into the plea agreement. In 

the defendant's view, the judge wholly minimized the scope of 

Farak's misconduct and, as a consequence, improperly assessed 

its impact on the defendant's decision whether to plead guilty 

or go to trial. The Commonwealth acknowledges that the judge 

denied the defendant's motion to withdraw his guilty pleas in 

significant part because there was no evidence that the drug 
34

analyses in the defendant's case were inaccurate, or that Farak 

was involved in misconduct at the time the defendant pleaded 

guilty. Notwithstanding evidence of misconduct by Farak, the 

Commonwealth contends that there were good reasons for the 

defendant to accept the plea agreement, including the strength 

of the Commonwealth's case (including the defendant's own 

incriminating statements), and the significant concessions made 

by the Commonwealth regarding the charges and defendant's 

sentence. 

In Scott, 467 Mass. at 354, this court pointed out that 

satisfaction of the first prong of the Ferrara analysis did not 

"relieve the defendant of his burden under the second Ferrara

prong to particularize Dookhan's misconduct to his decision to 

tender a guilty plea." See Commonwealth v. Chatman, 466 Mass. 

327, 333 (2013) ("The defendant has the burden of proving facts 

upon which he relies in support of his motion for a new trial"); 

Commonwealth v. Lewin, 405 Mass. 566, 584-585 (1989) (charges 

against defendant need not be dismissed where police misconduct 

was egregious but not prejudicial to fair trial). The same 

principle is applicable here with respect to Farak's misconduct. 

"[E]vidence of the circumstances surrounding [a] defendant's 

decision to tender a guilty plea should be well within the 

defendant's reach." Scott, supra at 354 n.11. Accordingly, 

under the second prong of the Ferrara-Scott framework, "the 
35

defendant must demonstrate a reasonable probability that he 

would not have pleaded guilty had he known of [Farak's] 

misconduct." Scott, supra at 354-355. See Ferrara, 456 F.3d at 

290, 294. This court identified in Scott a number of factors 

that might be relevant to a defendant's showing under this 

second prong of analysis. See Scott, supra at 355-356. We 

emphasized in that case that "the full context of the 

defendant's decision to enter a plea agreement will dictate the 

assessment of his claim that knowledge of Dookhan's misconduct 

would have influenced the defendant's decision to plead guilty." 

Id. at 357. See Ferrara, supra at 294. Here, the same analysis 

is applicable.

We recognize that the motion judge considered whether the 

defendant would have pleaded guilty even if Farak's misconduct 

had antedated his guilty pleas. However, the judge did so 

without the benefit of our opinion in Scott, and without our 

assessment of the potential implications of the Commonwealth's 

cursory investigation of Farak's misconduct at the Amherst drug 

lab. In significant part, the judge determined that Farak's 

misconduct would not have materially influenced the defendant's 

decision to plead guilty because there was no evidence that the 

drug analyses in the defendant's case were inaccurate, or that 

Farak was tampering with evidence at the time the defendant 

tendered his guilty pleas. Given the absence of a thorough 
36

investigation by the Commonwealth into Farak's misconduct, we 

cannot ascertain whether the foundation for the judge's 

resolution of this issue is solid. Therefore, following his 

resolution of the first prong of the Ferrara-Scott analysis, the 

judge should reconsider the second prong of that analysis "to 

determine whether, in the totality of the circumstances, the 

defendant can demonstrate a reasonable probability that had he 

known of [Farak's] misconduct, he would not have [pleaded 

guilty] and would have insisted on taking his chances at trial." 

Scott, 467 Mass. at 358.

c. Subpoena to establish scope and timing of Farak's 

misconduct. In an effort to develop the facts necessary to 

establish the timing and scope of Farak's misconduct, the 

defendant subpoenaed Farak's spouse, Nikki Lee, to testify at 

the evidentiary hearing. See note 5, supra. The defendant 

wanted to show that Farak had a history of cocaine use dating 

back to 2000, and he sought to question Lee about Farak's drug 

use before and during her employment at the Amherst drug lab. 

Lee's testimony, in the defendant's view, would be highly 

probative of when Farak became motivated to tamper with 

evidence. In response, Lee filed a notice of her intent to 

invoke her privilege against self-incrimination under the Fifth 

Amendment to the United States Constitution and art. 12 of the 

Massachusetts Declaration of Rights, as well as spousal 
37

privilege under G. L. c. 233, § 20, Second.17 Construing Lee's 

notice of her intent to invoke certain privileges as a motion to 

quash the subpoena, the judge allowed the motion on the basis of 

spousal privilege. 

On appeal, the defendant contends that the judge erred in 

quashing the subpoena because the evidentiary hearing was not a 

criminal proceeding against Farak and, therefore, the spousal 

privilege was inapplicable. The propriety of asserting a 

testimonial privilege is a matter of statutory interpretation, 

presenting a pure question of law that is subject to de novo 

review. See Matter of a Grand Jury Subpoena, 447 Mass. 88, 90 

(2006). See also Bridgewater State Univ. Found. v. Assessors of 

Bridgewater, 463 Mass. 154, 156 (2012). Based on our review, we 

agree with the defendant that the spousal privilege was not 

applicable in the circumstances of this case. However, we 

affirm the judge's decision on other grounds. See Commonwealth

 

17 In her notice of intent to invoke certain privileges, 

Nikki Lee also asked that she be excused from testifying at the 

evidentiary hearing because, among other reasons, her sworn 

testimony before the State grand jury investigating Farak's 

misconduct at the Amherst drug lab already had been provided to 

the defendant. Lee testified before the grand jury that she had 

tried cocaine, and that she had observed Farak using cocaine in 

2000, although not since that time. We note that the spousal 

privilege set forth in G. L. c. 233, § 20, Second, cannot be 

invoked in proceedings before a grand jury. See Matter of a 

Grand Jury Subpoena, 447 Mass. 88, 99 (2006). A spouse who 

testifies before a grand jury will not be deemed to have waived 

the spousal privilege at a later proceeding because "if there is 

no privilege not to testify before a grand jury, then no 

privilege has been waived by giving such testimony." Id. at 98.
38

v. Va Meng Joe, 425 Mass. 99, 102 (1997) ("An appellate court is 

free to affirm a ruling on grounds different from those relied 

on by the motion judge if the correct or preferred basis for 

affirmance is supported by the record and the findings").

General Laws c. 233, § 20, Second, provides (with certain 

exceptions not relevant here): "[N]either husband nor wife 

shall be compelled to testify in the trial of an indictment, 

complaint or other criminal proceeding against the other." See 

Mass. G. Evid. § 504(a) (2014). "The purpose of the spousal 

privilege is to protect the relationship of marriage from the 

potential harm of one spouse giving adverse testimony against 

the other." Commonwealth v. Szerlong, 457 Mass. 858, 869 

(2010), cert. denied, 131 S. Ct. 1494 (2011). See Matter of a 

Grand Jury Subpoena, 447 Mass. at 96. Because "[t]estimonial 

privileges 'are exceptions to the general duty imposed on all 

people to testify,'" they "must be strictly construed." Three 

Juveniles v. Commonwealth, 390 Mass. 357, 359 (1983), cert. 

denied sub nom. Keefe v. Massachusetts, 465 U.S. 1068 (1984), 

quoting Commonwealth v. Corsetti, 387 Mass. 1, 5 (1982). See 

Matter of a Grand Jury Subpoena, supra at 90. 

When considering the meaning of a testimonial privilege, 

"we look first and foremost to the language of the statute as a 

whole." Id. Generally speaking, the spousal privilege applies 

to testimony that would be given by one spouse in a criminal 
39

trial against the other spouse.18 See id. at 90-93. Here, Lee 

would not be testifying at a criminal trial against Farak. 

Rather, the defendant sought her testimony at an evidentiary 

hearing pertaining to postconviction motions filed by fifteen 

defendants who claimed that alleged criminal conduct by Farak 

rendered their guilty pleas to various drug charges unknowing, 

unintelligent, and involuntary. See note 5, supra. Lee's 

testimony at such a proceeding cannot be barred by invocation of 

the spousal privilege under G. L. c. 233, § 20, Second. 

Accordingly, the judge erred in quashing the defendant's 

subpoena on this basis.

That said, based on our review of the record, the judge 

properly could have quashed the defendant's subpoena on the 

basis of Lee's invocation of her privilege against selfincrimination.19 "The proscription of the Fifth Amendment that 

 

18 In Matter of a Grand Jury Subpoena, 447 Mass. at 99, this 

court did not decide "whether, or to what extent, the spousal 

privilege may be invoked in pretrial (or posttrial) 

proceedings." Given that the evidentiary hearing at issue in 

the present case was not a pretrial proceeding against Farak, we 

do not consider the scope of the spousal privilege beyond the 

plain language of the statute, which resolves the matter at 

hand.

19 Lee's testimony before the grand jury did not constitute 

a waiver of her privilege against self-incrimination with regard 

to the evidentiary hearing. "The waiver [of a testimonial 

privilege], once made, waives the privilege only with respect to 

the same proceeding; the witness may once again invoke the 

privilege in any subsequent proceeding." Commonwealth v. King, 

436 Mass. 252, 258 n.6 (2002). See generally Commonwealth v. 
40

'[n]o person . . . shall be compelled in any criminal case to be 

a witness against himself' may be invoked whenever a witness 

reasonably believes that the testimony could be used in a 

criminal prosecution or could lead to other evidence that might 

be so used." Pixley v. Commonwealth, 453 Mass. 827, 832 (2009), 

citing Kastigar v. United States, 406 U.S. 441, 444-445 (1972). 

See Commonwealth v. Baker, 348 Mass. 60, 62-63 (1964). Because 

the privilege against self-incrimination is a "fundamental 

principle" of our judicial system, it "is to be construed 

liberally in favor of" the person claiming it. Commonwealth v. 

Borans, 388 Mass. 453, 455 (1983). "A witness may refuse to 

testify unless it is 'perfectly clear, from a careful 

consideration of all the circumstances in the case, that the 

witness is mistaken, and that the answer[s] cannot possibly have 

such tendency' to incriminate (emphasis in original)." 

Commonwealth v. Funches, 379 Mass. 283, 289 (1979), quoting 

Hoffman v. United States, 341 U.S. 479, 488 (1951).

By subpoenaing Lee, the defendant sought to elicit 

testimony at the evidentiary hearing regarding Farak's cocaine 

use before and during her employment at the Amherst drug lab. 

During her testimony before the grand jury, Lee stated that she 

herself had tried cocaine, that she had observed Farak using 

 

Martin, 423 Mass. 496, 500-501 (1996) (discussing so-called 

"waiver by testimony" rule).
41

cocaine in 2000, and that she had marijuana in her house when 

police officers arrived to search the premises as part of their 

investigation of Farak.20 To the extent that Lee testified about 

her own drug possession in relation to that of Farak, it is not 

"perfectly clear" that such testimony could not possibly have 

the tendency to incriminate Lee and subject her to criminal 

prosecution. Therefore, Lee's invocation of her privilege 

against self-incrimination would have been a proper basis for 

the judge to quash the defendant's subpoena.

5. Conclusion. The order denying the defendant's motion 

to withdraw his guilty pleas pursuant to Mass. R. Crim. P. 

30 (b) is vacated, and we remand this case for further 

proceedings in accordance with this opinion.

So ordered.

 

20 The enactment of G. L. c. 94C, § 32L, inserted by St. 

2008, c. 387, § 2, decriminalized only the possession of one 

ounce or less of marijuana. A defendant still may be criminally 

charged with possession of more than one ounce of marijuana. 

See G. L. c. 94C, § 32L, third par.; Commonwealth v. Jackson, 

464 Mass. 758, 762 (2013). Similarly, a defendant may be 

criminally charged with possession with intent to distribute 

marijuana, in violation of G. L. c. 94C, § 32C (a), even where 

the amount of marijuana possessed is one ounce or less. See 

Commonwealth v. Keefner, 461 Mass. 507, 508 (2012).