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SJC-12869

IN THE MATTER OF A GRAND JURY INVESTIGATION.

Suffolk. April 7, 2020. - September 8, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, 

& Kafker, JJ.

Grand Jury. District Attorney. Police Officer. Evidence, 

Grand jury proceedings, Testimony before grand jury, 

Immunized witness, Exculpatory, Disclosure of evidence, 

Impeachment of credibility. Practice, Criminal, Grand jury 

proceedings, Immunity from prosecution, Disclosure of 

evidence. Witness, Immunity, Impeachment, Police officer.

Civil action commenced in the Supreme Judicial Court for 

the county of Suffolk on October 2, 2019.

The case was reported by Cypher, J.

William T. Harrington (Edward P. Harrington also present) 

for the petitioners.

Shoshana E. Stern, Assistant District Attorney, for the 

Commonwealth.

Scott P. Lewis, Samuel B. Dinning, Matthew R. Segal, 

Jessica J. Lewis, & Daniel L. McFadden, for American Civil 

Liberties Union of Massachusetts, Inc., & another, amici curiae, 

submitted a brief.
2

GANTS, C.J. In 2019, the district attorney learned through 

immunized grand jury testimony that two police officers, the

petitioners in this case, knowingly made false statements in 

their police reports that concealed the unlawful use of force by 

a fellow officer against an arrestee and supported a bogus 

criminal charge of resisting arrest against the arrestee. The 

district attorney, to his credit, prepared a discovery letter 

describing the petitioners' misconduct and asked a Superior

Court judge to authorize its disclosure to defense counsel as 

potentially exculpatory information in unrelated criminal cases

where the petitioners might be witnesses. The judge authorized 

the disclosure. The petitioners appealed, claiming that the 

information should not be disclosed to defense counsel in 

unrelated cases because disclosure is not constitutionally 

required and would reveal information obtained from immunized 

testimony before a grand jury. We affirm the judge's order of 

disclosure.1

Background. We recite the facts of this case based upon 

the information contained in the G. L. c. 211, § 3, petition and 

the parties' agreed upon statement of facts. The petitioners 

are Fall River police officers who were present when fellow 

 

1 We acknowledge the amicus brief submitted by the American 

Civil Liberties Union of Massachusetts, Inc., and the 

Massachusetts Association of Criminal Defense Lawyers, Inc.
3

police officer, Michael Pessoa, used force while arresting an 

individual (arrestee) on February 12, 2019. Pessoa submitted an 

arrest report concerning the arrest; the petitioners did not. A 

few hours after the arrest, the petitioners were ordered by 

their superiors to each complete the police department's Use of 

Defensive Tactics Report (use-of-force report) because the 

arrestee was observed to have a bloody lip while being booked at 

the police station. The petitioners are not themselves alleged 

to have used force during this incident.

The use-of-force report is a preprinted two-page form that

a police officer must complete after using force on a suspect or 

arrestee. The kinds of use-of-force range from the use of a 

firearm or pepper spray, to the use of certain hands-on force, 

such as an "arm bar take down". A use-of-force report is not an 

incident report or an arrest report; rather, it is an internal 

police department report generated to memorialize an officer's 

use of force during an encounter with an individual. Each of 

the petitioners executed a use-of-force report that, in essence, 

adopted Pessoa's version of events as set forth in his incident 

report -- namely, that the arrestee was noncompliant, threatened 

to punch the officers, and was then taken to the ground by 

Pessoa in making the arrest.2

 

2 One of the petitioners wrote: "Subject was non-compliant,

and threatened to punch Officers. He then refused to comply 
4

After the arrestee was charged with various offenses, 

including resisting arrest, his defense attorney provided the

district attorney for the Bristol district with a videotape of 

surveillance footage that showed the arrest and Pessoa's use of 

force on the arrestee.3 The footage of the incident was 

inconsistent with the descriptions the petitioners provided in 

their use-of-force reports.4 Specifically, the footage showed 

that the arrestee was physically compliant when one of the 

petitioners removed his handcuffs, and that Pessoa then struck 

the arrestee on the left side of his head-shoulder area, causing 

the arrestee, according to the agreed upon statement of facts,

"to be taken to the ground in a violent manner."5

Prompted by the videotape, the district attorney initiated 

a criminal investigation into Pessoa's conduct. This 

investigation resulted in a grand jury returning fifteen 

 

with verbal commands and was taken to the ground in an effort to 

effect an arrest." The other petitioner wrote: "Subject was 

disorderly, non-compliant, and threatened to punch officers in 

the face. Subject was subsequently taken to the ground via an 

arm bar take down." Officer Michael Pessoa's incident report is 

not part of the record on appeal.

3 The arrestee was charged with assault and battery by means 

of a dangerous weapon (a shod foot), disorderly conduct 

(subsequent offense), disturbing the peace, threat to commit a 

crime, assault, and resisting arrest.

4 The videotape is not part of the record on appeal.

5 The force used by Pessoa was inconsistent with an arm bar 

take down.
5

indictments against Pessoa for crimes involving four separate 

arrestees, including charges for assault and battery by means of

a dangerous weapon causing serious bodily injury, assault and 

battery, civil rights violations, witness intimidation, filing 

false police reports, and malicious destruction of property.6

During the criminal investigation of Pessoa, the district 

attorney subpoenaed the petitioners to testify before the grand 

jury. In light of the apparent inconsistencies between their 

use-of-force reports and the videotape, the petitioners each 

asserted his privilege against self-incrimination under the 

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

the Massachusetts Declaration of Rights. The district attorney 

then sought and obtained orders of immunity pursuant to 

G. L. c. 233, §§ 20C-20G, from a Superior Court judge. The 

judge found that each petitioner "did validly refuse to answer 

questions or produce evidence on the grounds that such testimony 

or such evidence might tend to incriminate him." The immunity 

orders provided that the petitioners

"be granted immunity from prosecution, and not be 

subjected to any penalty or forfeiture with respect to 

the transaction, matter or thing concerning which he 

is compelled to testify or produce evidence, and no 

testimony concerning said crimes shall be used as 

evidence against the witness in any Court of the 

Commonwealth, except in a prosecution for perjury or 

 

6 Following the return of indictments against Pessoa, the 

district attorney entered a nolle prosequi on the charges 

against the February 2019 arrestee.
6

contempt committed while giving testimony or producing 

evidence under compulsion of this order."

The grant of immunity compelled the petitioners to "give 

testimony and produce evidence" before a "jury in these 

proceedings." During interviews prior to their grand jury 

testimony and during their grand jury testimony, the petitioners 

admitted that their use-of-force reports were false.

On August 13, 2019, the district attorney's office filed 

two motions in the Superior Court. A Superior Court judge 

ordered both motions impounded, and they were not served on the 

petitioners. In the first motion, the district attorney sought 

authority to disclose information from a petitioner's grand jury 

testimony to defense counsel for criminal defendants in cases 

unrelated to the prosecution of Pessoa where the petitioner was 

"a potential witness," asserting that it was obligated to make 

such disclosures under Brady v. Maryland, 373 U.S. 83, 87-88

(1963) and Giglio v. United States, 405 U.S. 150, 155 (1972)

(Brady disclosure motion). Attached to the motion was a 

proposed discovery letter that identified the relevant

petitioners and stated that each is a police officer with the 

Fall River police department who "has been given a grant of 

immunity as part of the Pessoa grand jury investigation," and 
7

who "admitted to filing a false police report" as part of that 

case.7

In the second motion, the district attorney sought an order 

authorizing the disclosure of information concerning the 

petitioners' grand jury testimony to their municipal employer, 

the Fall River police department (employer disclosure motion). 

Attached to the employer disclosure motion was a proposed letter 

to the Fall River police chief, setting forth the same 

statements in the proposed Brady disclosure letter.

On or about August 16, 2019, counsel for the petitioners 

learned that the district attorney's office had filed an 

 

7 The proposed discovery letter stated in relevant part:

"Please be advised of the following potentially exculpatory

discovery from an unrelated criminal proceeding:

"1. Michael Pessoa, a Fall River police officer, was 

indicted on June 27, 2019 with a 15-count indictment, numbered 

1973CR00182. The indictment includes allegations that he beat 

arrestees and that he filed false police reports.

"2. [PETITIONER 1], a Fall River police officer, has been 

given a grant of immunity as part of the Pessoa grand jury

investigation. [PETITIONER 1] admitted to filing a false police 

report.

"3. [PETITIONER 2], a Fall River police officer, has been 

given a grant of immunity as part of the Pessoa grand jury

investigation. [PETITIONER 2] admitted to filing a false police 

report.

". . .

"This disclosure is not for public dissemination."
8

internal affairs complaint against the petitioners with the Fall 

River police department, and learned of the employer disclosure 

motion. Shortly thereafter, the petitioners filed a motion in 

the Superior Court seeking standing to oppose the employer 

disclosure motion. Petitioners subsequently learned of, and 

sought to object to, the Brady disclosure motion.

The Superior Court judge allowed the petitioners to oppose

both motions.8 After oral argument, the judge allowed the

district attorney's motion to make the Brady disclosure but

denied the employer disclosure motion. In allowing the Brady

disclosure motion, the judge concluded that the proposed 

discovery letter "is potentially exculpatory evidence as it may 

tend to negate the guilt of criminal defendants against whom the 

officers may be witnesses at trial." The judge ordered the 

Commonwealth to "notify by means of the proposed discovery 

letter, all defendants of cases not yet tried and cases now 

disposed that were tried after the date of the filing of the 

false police reports, for which the identified officer either 

prepared a report or is expected to be a witness at trial."

In denying the employer disclosure motion, the judge

concluded that the Commonwealth had not "shown that the need for 

 

8 The judge also ordered impounded all filings related to 

the two motions, as well as the recording of the argument on the 

motions.
9

disclosure outweigh[ed] the need for continued secrecy." The 

judge noted:

"It is apparent from the public nature of the 

indictments against Michael Pessoa, the public 

statements of the Fall River [p]olice [c]hief, and the 

media coverage on the topic, that the department has 

substantial information on which to commence 

disciplinary proceedings, and that the proposed 

statement the Commonwealth seeks to disclose to the 

department will provide no additional material 

information."

The petitioners sought and were granted a stay with respect 

to the allowance of the Brady disclosure motion, enabling them 

to seek relief from a single justice of this court pursuant to 

G. L. c. 211, § 3. The Commonwealth did not petition for relief 

from the denial of the employer disclosure motion. After a 

hearing, the single justice reserved and reported the case to 

the full court. The single justice directed the parties to 

address the following questions: (1) whether there is a Brady

obligation in these circumstances to disclose information to 

unrelated defendants; (2) whether, if there is a Brady

obligation, the Commonwealth may disclose the information even 

if it was obtained as a result of a judicial order of immunity 

or in the course of the petitioners' grand jury testimony; (3) 

whether, if there is a Brady obligation, the Commonwealth must 

seek prior judicial approval for disclosure; (4) whether the 

process by which the Commonwealth obtained the petitioners' 

testimony precludes disclosing information to the petitioners' 
10

municipal employer -- the police department -- concerning the 

petitioners' invocation of the right against self-incrimination, 

grant of immunity, and admitted conduct, for purposes of 

administrative disciplinary proceedings, employee training, or 

otherwise; and (5) whether, if disclosure to the police 

department is permissible, the Commonwealth must seek prior 

judicial approval.

Discussion. 1. Disclosure of Brady information to other 

defendants. Under the due process clause of the Fourteenth 

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

Massachusetts Declaration of Rights, a prosecutor must disclose 

exculpatory information to a defendant that is material either 

to guilt or punishment. See Brady, 373 U.S. at 87; Committee 

for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700, 731

(2018) (CPCS). "When the 'reliability of a given witness may 

well be determinative of guilt or innocence,' nondisclosure of 

evidence affecting credibility falls within this general rule." 

Giglio, 405 U.S. at 154, quoting Napue v. Illinois, 360 U.S. 

264, 269 (1959). See Commonwealth v. Hill, 432 Mass. 704, 715 

(2000), quoting Commonwealth v. Collins, 386 Mass. 1, 8 (1982) 

("Evidence tending to impeach the credibility of a key 

prosecution witness is clearly exculpatory"). Therefore, in the

parlance of the criminal justice bar, Giglio information is 

Brady information: "[t]he Brady obligation comprehends evidence 
11

which provides some significant aid to the defendant's case, 

whether it furnishes corroboration of the defendant's story, 

calls into question a material, although not indispensable, 

element of the prosecution's version of the events, or 

challenges the credibility of a key prosecution witness." 

Commonwealth v. Ellison, 376 Mass. 1, 22 (1978).

Apart from the constitutional obligations of disclosure, 

our rules of criminal procedure require a prosecutor, as part of 

automatic discovery, to disclose to a defendant "[a]ny facts of 

an exculpatory nature."9 Mass. R. Crim. P. 14 (a) (1) (A) (iii), 

as amended, 444 Mass. 1501 (2005). And our rules of 

professional conduct require prosecutors to "make timely 

disclosure to the defense of all evidence or information known 

to the prosecutor that tends to negate the guilt of the accused 

 

9 In Committee for Pub. Counsel Servs. v. Attorney Gen.

(CPCS), we noted that while Mass. R. Crim. P. 14 "envisions a 

broad disclosure requirement for exculpatory facts, the rule 

explicitly identifies only a few specific categories of 

potentially exculpatory information that a prosecutor must 

disclose." CPCS, 480 Mass. 700, 732 (2018), citing Mass. R. 

Crim. P. 14 (a) (1) (A) (i), (viii), (ix) ("Commonwealth must 

disclose defendant's statements, 'promises, rewards or 

inducements' given to prosecution witnesses, and statements made 

during and about identification procedures"). To provide more 

detailed guidance to prosecutors, we asked the Supreme Judicial 

Court's standing advisory committee on the rules of criminal 

procedure "to draft a proposed Brady checklist to clarify the 

definition of exculpatory evidence" and establish "a more 

thorough baseline of the most likely sources and types of 

exculpatory information for prosecutors to consider." Id. Rule

14 has not yet been amended to include a Brady checklist.
12

or mitigates the offense." Mass. R. Prof. C. 3.8 (d), as 

appearing in 473 Mass. 1301 (2016). See also Mass. R. Prof. C. 

3.4 (a), as appearing in 471 Mass. 1425 (2015) (lawyer

prohibited from concealing evidence or unlawfully obstructing 

another party's access to evidence); Mass. R. Prof. C. 3.8 (g) 

(prosecutor may not avoid pursuit of evidence that may aid 

accused); Mass. R. Prof. C. 3.8 (i) (prosecutor's obligation to 

disclose postconviction exculpatory evidence).

The petitioners, in essence, make four arguments in support 

of their position that the district attorney should be barred 

from making the requested disclosure to criminal defendants in 

cases where a petitioner either prepared a report or is expected 

to be a witness at trial: (1) that the information falls 

outside the scope of a prosecutor's Brady obligation; (2) that 

the information would not be admissible at trial and therefore 

is not exculpatory; (3) that disclosure would violate each 

petitioner's immunity order; and (4) that disclosure is barred 

by the rules governing grand jury secrecy. We address each 

argument in turn.

a. Scope of a prosecutor's Brady obligation. The 

petitioners contend that the information the district attorney 

seeks to disclose is not Brady information because the failure 

to disclose this information would not require a new trial if 

the defendant were to be convicted. This argument incorrectly
13

equates a prosecutor's duty to disclose exculpatory evidence 

with the standard applied in determining whether the 

prosecutor's failure to disclose exculpatory evidence is so 

prejudicial that it requires a new trial.

Under Federal constitutional law, a prosecutor's failure to 

disclose exculpatory information is not a breach of a 

prosecutor's constitutional duty to disclose unless the 

"omission is of sufficient significance to result in the denial 

of the defendant's right to a fair trial." United States v. 

Bagley, 473 U.S. 667, 676 (1985), quoting United States v. 

Agurs, 427 U.S. 97, 108 (1976). Under the standard of 

materiality applied by the Supreme Court, "[t]he evidence is 

material only if there is a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the 

proceeding would have been different." Bagley, supra at 682. 

"A 'reasonable probability' is a probability sufficient to 

undermine confidence in the outcome." Id. This materiality 

standard applies regardless of whether the undisclosed 

information was requested by the defendant, either generally or 

specifically. See id. at 682-83.

This court declined to adopt the Bagley "one size fits all" 

test as a matter of State constitutional law and instead 

"adhered to the Agurs test for determining the consequences of a 

prosecution's failure to comply with a specific request for 
14

exculpatory evidence," which was the test the Supreme Court had 

supplanted in Bagley. Commonwealth v. Tucceri, 412 Mass. 401, 

406 (1992), citing Commonwealth v. Gallarelli, 399 Mass. 17, 21 

n.5 (1987). Consequently, under our Declaration of Rights,

where the defendant had made a specific request for the 

information, "a new trial would be required if the undisclosed 

evidence 'might have affected the outcome of the trial.'" 

Tucceri, supra at 405, quoting Agurs, 427 U.S. at 104. Where 

there was no request for the information, or only a general 

request was made, "a new trial would be required only if the 

undisclosed evidence 'create[d] a reasonable doubt which did not 

otherwise exist.'" Tucceri, supra, quoting Agurs, supra at 112.

The petitioners contend that a prosecutor should not 

disclose exculpatory information unless the prosecutor has a 

constitutional duty to disclose, and that duty is triggered only 

where the information would create a reasonable doubt which 

would not otherwise exist. See Tucceri, 412 Mass. at 405. This 

argument fails for two reasons.

First, prosecutors have more than a constitutional duty to 

disclose exculpatory information; they also have a broad duty 

under Mass. R. Crim. P. 14 (a)(1)(iii) to disclose "[a]ny facts 

of an exculpatory nature." This duty is not limited to 

information so important that its disclosure would create a 

reasonable doubt that otherwise would not exist; it includes all
15

information that would "tend to" indicate that the defendant 

might not be guilty or "tend to" show that a lesser conviction 

or sentence would be appropriate. See CPCS, 480 Mass. at 731, 

quoting Brady, 373 U.S. at 87 (prosecutor may not withhold

evidence that "would tend to exculpate [a defendant] or reduce 

the penalty"); Collins, 470 Mass. at 267 ("The Commonwealth is 

required to disclose exculpatory evidence to the defendant, 

including, as is relevant here, evidence that would tend to 

impeach the credibility of a key prosecution witness"). 

Therefore, in Massachusetts, when we speak of a prosecutor's 

Brady obligation, we mean not only the constitutional obligation 

to disclose exculpatory information but also the broad 

obligation under our rules to disclose any facts that would tend 

to exculpate the defendant or tend to diminish his or her 

culpability.

Second, even if prosecutors had only their constitutional 

obligation to disclose, and not the broad duty under our rules, 

we would not want prosecutors to withhold exculpatory 

information if they thought they could do so without crossing 

the line into a violation of the defendant's right to a fair 

trial. It is true that the constitutional duty of a prosecutor 

to disclose derives from the defendant's due process right to a 

fair trial. See Agurs, 427 U.S. at 108 ("unless the omission 

deprived the defendant of a fair trial, there was no 
16

constitutional violation requiring that the verdict be set 

aside; and absent a constitutional violation, there was no 

breach of the prosecutor's constitutional duty to disclose"). 

Therefore, a finding regarding a breach of that obligation looks

backward in time, at whether the failure to disclose deprived 

the defendant of a fair trial. But a prosecutor who is deciding 

whether to disclose exculpatory information must look forward in 

time, to a trial that has yet to occur, where even an 

experienced prosecutor may be unsure about the defenses that the 

defendant will offer or that will emerge from the evidence. As 

the Supreme Court declared in Agurs, supra:

"[T]here is a significant practical difference between the 

pretrial decision of the prosecutor and the post-trial 

decision of the judge. Because we are dealing with an 

inevitably imprecise standard, and because the significance 

of an item of evidence can seldom be predicted accurately 

until the entire record is complete, the prudent prosecutor 

will resolve doubtful questions in favor of disclosure."

See Kyles v. Whitley, 514 U.S. 419, 439 (1995) ("a prosecutor 

anxious about tacking too close to the wind will disclose a 

favorable piece of evidence. . . . This is as it should be"

[citation omitted]).

A prosecutor should not attempt to determine how much 

exculpatory information can be withheld without violating a 

defendant's right to a fair trial. Rather, once the information 

is determined to be exculpatory, it should be disclosed --

period. And where a prosecutor is uncertain whether information 
17

is exculpatory, the prosecutor should err on the side of caution 

and disclose it. See Commonwealth v. St. Germain, 381 Mass. 

256, 262 n.10 (1980), quoting Commentary to A.B.A. Standards for 

Criminal Justice, Standards Relating to Discovery and Procedure 

Before Trial 2.1(d) (Approved Draft 1970) ("We reiterate[] that 

'prosecuting attorneys [should] become accustomed to disclosing 

all material which is even possibly exculpatory, as a 

prophylactic against reversible error and in order to save court 

time arguing about it'").10

b. Consequence of admissibility of impeachment information

on Brady obligation. The petitioners also argue that 

prosecutors have no obligation to disclose the petitioners' 

false statements because their prior misconduct would not be 

admissible in evidence at trial in any unrelated criminal case. 

We disagree.

The petitioners are correct that, in the absence of a 

conviction, "[i]n general, specific instances of misconduct 

showing the witness to be untruthful are not admissible for the 

purpose of attacking or supporting the witness's credibility." 

 

10 Where a prosecutor recognizes information to be 

exculpatory, but is unsure whether it should be disclosed, "due 

to a concern regarding privilege or work product, or for any 

other reason, the prosecutor must file a motion for a protective 

order and must present the information for a judge to review in 

camera." CPCS, 480 Mass. at 733, citing Mass. R. Crim. P. 14 

(a) (6).
18

Mass. G. Evid. § 608(b) (2020), citing Commonwealth v. Bregoli, 

431 Mass. 265, 275 (2000), and Commonwealth v. LaVelle, 414 

Mass. 146, 151 (1993). See Mass. G. Evid. § 609(a) (2020) ("A 

party may seek to impeach the credibility of a witness by means 

of the court record of the witness's prior conviction or a 

certified copy"). But we have "chiseled a narrow exception" to 

this general rule, "recognizing that in special circumstances 

the interest of justice forbids strict application of the rule." 

LaVelle, supra, citing Commonwealth v. Bohannon, 376 Mass. 90, 

94 (1978), S.C., 385 Mass. 733 (1982).11

In Bohannon, 376 Mass. at 94, we declared, "[w]hen evidence 

concerning a critical issue is excluded and when that evidence 

might have had a significant impact on the result of the trial, 

the right to present a full defense has been denied." In that 

case, a critical issue at trial was the credibility of the 

complainant, who testified that she did not consent to sexual 

intercourse with the defendant, and the evidence that might have 

 

11 In Commonwealth v. Almonte, 465 Mass. 224, 241 (2013), we 

noted that "under the Fed. R. Evid. 608(b), a party on crossexamination of a witness may inquire into the details of prior 

instances of misconduct if probative of the witness's character 

for veracity." Because the benefit to the defendant in that 

case "of an expanded evidentiary rule concerning impeachment on 

the issue of veracity would be marginal at best," we left "to 

another day the question whether we should follow the guide of 

the Fed. R. Evid. 608(b), and adopt such a rule more generally." 

Id. at 242. This is not the day, or the case, where we need to 

address that question.
19

had a significant impact on the result of the trial were

hospital records that revealed that "the complainant had made a 

number of unsubstantiated, and apparently false, accusations of 

rape." Id. at 93. We concluded that it was reversible error 

for the judge to have prevented the defendant from impeaching 

the victim-witness with this evidence of prior false 

accusations. See id. at 95.

A judge has the discretion to decide whether the 

credibility of a police officer is a critical issue at trial and 

whether the officer's prior false statements in a separate 

matter might have a significant impact on the result of the 

trial, such that the prior misconduct should be admitted in the 

interest of justice. See Commonwealth v. Lopes, 478 Mass. 593, 

606 (2018). In Lopes, we concluded that the judge did not abuse 

his discretion by preventing the defendant from impeaching a 

police officer who was one of the Commonwealth's key 

eyewitnesses in a homicide case "with information that the 

Boston police department had suspended [the police officer] five 

years earlier for, among other things, lying in an internal 

affairs investigation on a personal matter." Id. We noted that 

the alleged conduct was "not material" to the homicide 

investigation where it took place five years before the murder, 

"did not result in a criminal conviction or even a criminal 
20

charge," and was "not related to how [the officer] conducted 

police investigations." Id.

Our delineation of these factors suggests that a judge, in 

deciding whether to allow a police officer witness in the 

interest of justice to be impeached with prior misconduct, may 

consider the age of the prior misconduct, the strength of the 

evidence of the prior misconduct and the simplicity of 

establishing it, and whether the prior misconduct is probative 

of how the officer conducts police investigations.12 As to the 

age of the misconduct, if it happened so long ago that it would 

not be admissible for impeachment had it resulted in a criminal 

conviction, see Mass. G. Evid. § 609, it would not likely be 

admissible in the absence of a conviction. As to the strength 

of the evidence of the prior misconduct and the simplicity of 

establishing it, a judge may consider whether admitting evidence 

of the misconduct will result in a trial within a trial to 

resolve whether it happened or how it happened. As to whether 

the prior misconduct is probative of how the officer conducts 

police investigations, a judge may consider whether the 

misconduct reflects a willingness to lie to win a conviction or 

 

12 We also note that our conclusion in Commonwealth v. 

Lopes, 478 Mass. 593, 606 (2018), that the judge did not abuse 

his discretion in barring such impeachment, does not mean that 

it would have been an abuse of discretion for the judge to have 

admitted such evidence.
21

instead involves matters that, although serious, do not bear on 

the integrity of police investigations, such as taking 

unauthorized sick time or inflating overtime hours. Concealing 

police brutality against an arrestee, whether by the officer or 

a fellow officer, or making false statements that might lead to 

an unjust conviction are for law enforcement officers the 

equivalent of high crimes and misdemeanors in this regard. All 

of these factors suggest that the petitioners' prior false 

statements might be admissible in a case where the credibility 

of their testimony is a critical issue.

We do not conclude that the exculpatory information at 

issue will always be or could never be admissible as impeachment 

evidence in an unrelated criminal case where one of the 

petitioners is a witness. All we conclude is that the 

information should be disclosed to unrelated defendants so that 

the trial judge may rule on its admissibility if the defendant 

were to seek its admission.

Moreover, the ultimate admissibility of the information is 

not determinative of the prosecutor's Brady obligation to 

disclose it. Where the information, as here, demonstrates that 

a potential police witness lied to conceal a fellow officer's 

unlawful use of excessive force or lied about a defendant's 

conduct and thereby allowed a false or inflated criminal charge 

to be prosecuted, disclosing such information may cause defense 
22

counsel, or his or her investigator, to probe more deeply into 

the prior statements and conduct of the officer to determine 

whether the officer might again have lied to conceal the 

misconduct of a fellow police officer or to fabricate or 

exaggerate the criminal conduct of the accused.

c. Consequence of order of immunity on Brady obligation. 

The petitioners contend that, where exculpatory information is 

obtained from a witness's immunized testimony, prosecutors 

should not disclose the information to defendants in unrelated

cases because the orders of immunity protect immunized witnesses 

from the adverse consequences that might result from such 

disclosure. This argument misreads the scope of immunity

provided by the immunity order.

The Fifth Amendment states in relevant part: "No person 

. . . shall be compelled in any criminal case to be a witness 

against himself." Article 12 states in part: "No subject shall

be held to answer for any crimes or offense, until the same is

fully and plainly, substantially and formally, described to him;

or be compelled to accuse, or furnish evidence against himself."

As is apparent from the language of the Fifth Amendment and art.

12, a witness's right to refuse to testify before a tribunal by

invoking the privilege against self-incrimination is available 

only where the witness's testimony might incriminate the witness 

with respect to a crime, either by the testimony itself or by 
23

evidence derived from that testimony. See Commonwealth v. 

Martin, 423 Mass. 496, 502 (1996), quoting Commonwealth v. 

Funches, 379 Mass. 283, 289 (1979) ("The privilege afforded not 

only extends to answers that would in themselves support a 

conviction . . . but likewise embraces those which would furnish 

a link in the chain of evidence needed to prosecute"). A 

witness may not invoke the privilege simply because the 

testimony, when it becomes known, will cause the witness to be 

fired from a job or injure the witness's reputation in the 

community. See Pixley v. Commonwealth, 453 Mass. 827, 832 

(2009), citing Martin, supra at 502-503 (circumstances for 

invoking privilege "must clearly indicate a possibility of selfincrimination").

An immunity order is sometimes referred to as a compulsion 

order because it grants immunity to the witness that is 

"coextensive with the scope of the privilege against selfincrimination, and therefore is sufficient to compel testimony 

over a claim of the privilege." Kastigar v. United States, 406

U.S. 441, 453 (1972). Under the Fifth Amendment, testimony may

be compelled through an order granting use immunity that

prohibits only the use, in any criminal case, of compelled 

testimony and the use of any evidence directly or indirectly 

derived from that compelled testimony. See id. at 453. 

However, under the Massachusetts Constitution and the governing 
24

statutes, G. L. c. 233, §§ 20C-20G, testimony may be compelled 

only through an order granting transactional immunity that 

provides "absolute immunity from subsequent prosecution based 

upon any transaction, matter, or occurrence about which an 

immunized witness testified or produced evidence." Attorney 

Gen. v. Colleton, 387 Mass. 790, 795 (1982). See Commonwealth

v. Austin A., 450 Mass. 665, 668 (2008). The scope of 

transactional immunity is set forth in G. L. c. 233, § 20G:

"A witness who has been granted immunity as provided 

in section 20E shall not be prosecuted or subjected to 

any penalty or forfeiture for or on account of any 

transaction matter, or thing concerning which he is so 

compelled, after having claimed his privilege against 

self-incrimination, to testify or produce evidence, 

nor shall testimony so compelled be used as evidence 

in any criminal or civil proceeding against him in any 

court of the commonwealth, except in a prosecution for 

perjury or contempt committed while giving testimony 

or producing evidence under compulsion, pursuant to 

section 20C or 20E" (emphasis added).13

"[I]t would be difficult to imagine an immunity more complete." 

Matter of a John Doe Grand Jury Investigation, 405 Mass. 125,

130 (1989), quoting Cabot v. Corcoran, 332 Mass. 44, 51 (1954).

 

13 The immunity orders in this case similarly stated that 

the petitioners "be granted immunity from prosecution, and not 

be subjected to any penalty or forfeiture with respect to the 

transaction, matter or thing concerning which he is compelled to 

testify or produce evidence against the witness in any Court of 

the Commonwealth, except in a prosecution for perjury or 

contempt committed while giving testimony or producing evidence 

under compulsion of this order."
25

Under § 20G, a witness with immunity may not be criminally 

prosecuted for any transaction about which the witness is 

compelled to testify. Nor may the Commonwealth seek any civil 

penalty or forfeiture regarding such a transaction. And apart 

from the prohibition against criminal and civil prosecution 

regarding matters raised during compelled testimony, the 

testimony itself may not be "used as evidence in any criminal or 

civil proceeding against" the witness in a court of law, except 

where the immunized testimony itself is the subject of a 

prosecution against the witness for perjury or contempt of 

court. See G. L. c. 233, § 20G.

If an immunized witness testifies at trial, however, the 

testimony is as public as the trial itself, and nothing in the 

order of immunity protects the witness from other adverse 

consequences that may arise from the content of the witness's 

testimony. If the witness, in the course of providing immunized 

testimony, admits that he lied, cheated, or killed, the witness 

may not be prosecuted for that illegal conduct, criminally or 

civilly; but nothing in the immunity statute or order protects 

the witness from being fired by his employer or shunned by his 

community because of the misconduct he revealed. And with 

respect to all persons other than the witness, immunized 

testimony is no different from any other testimony, except that 

it was compelled.
26

The petitioners argue that the disclosure of their

testimony would "penalize them for invoking their privilege

against self-incrimination" in violation of their orders of

immunity and the statute. But disclosure is not the penalty

from which they are protected by the immunity orders; the 

petitioners were granted immunity from prosecution, not from 

publication or disclosure. Therefore, the fact that testimony 

was compelled is irrelevant to the prosecutor's Brady obligation 

to provide exculpatory information. An immunized witness, like 

others who are not immunized, may prefer that the testimony not 

be disseminated by the prosecutor, especially if it would reveal 

the witness's dirty deeds, but that preference does not affect 

whether the information is exculpatory or whether it should be 

furnished to other defendants. Once disclosed, the immunized 

testimony may be used to impeach the immunized witness, provided 

that the testimony is not being used against the witness in a 

criminal or civil prosecution other than for perjury. In sum, a 

prosecutor's obligation to disclose exculpatory information is 

the same for immunized testimony as for all other testimony. 

There is no higher Brady standard applied for a prosecutor to 

disclose immunized testimony.

d. Consequence of grand jury secrecy on Brady obligation. 

Finally, the petitioners argue that, "[g]iven that Brady does 

not compel the disclosure of the information, the Commonwealth 
27

should not be permitted to disclose it in light of the rule that 

grand jury proceedings are to remain secret." As discussed 

supra, the premise of this argument is incorrect -- a prosecutor 

is required to disclose the information at issue to unrelated 

defendants pursuant to the obligation to disclose exculpatory 

information. The petitioners, however, present an alternative 

argument -- that the Commonwealth should be required to obtain 

judicial approval before making such a disclosure. We address 

the alternative argument.14

It is certainly true that "[t]he requirement that grand 

jury proceedings remain secret is deeply rooted in the common 

law of the Commonwealth." Globe Newspaper Co. v. Police Comm'r 

of Boston, 419 Mass. 852, 865 (1995), quoting WBZ-TV4 v. 

District Attorney for the Suffolk Dist., 408 Mass. 595, 599 

(1990). It is also true that "[s]ecrecy is of fundamental 

importance to grand jury proceedings." Commonwealth v. Holley, 

476 Mass. 114, 118 (2016).

"[S]everal interests are served by maintaining strict 

confidentiality, 'such as protection of the grand jury 

from outside influence, including influence by the 

news media; protection of individuals from notoriety 

and disgrace; encouragement of free disclosure of 

information to the grand jury; protection of witnesses 

 

14 After the immunity order issued, the petitioners agreed 

to be interviewed by the prosecutor prior to their grand jury 

appearance. In view of the conclusions we draw, we need not 

address whether these interviews are protected by the rules 

governing grand jury secrecy.
28

from intimidation; and enhancement of free grand jury 

deliberations.'"

Globe Newspaper Co., supra at 865-866, quoting Matter of a John 

Doe Grand Jury Investigation, 415 Mass. 727, 729 (1993).

Under Mass. R. Crim. P. 5 (d), as appearing in 442 Mass. 

1505 (2004), "[a] person performing an official function in 

relation to the grand jury may not disclose matters occurring 

before the grand jury except in the performance of his or her 

official duties or when specifically directed to do so by the 

court." A prosecutor presenting evidence at a grand jury is 

certainly "performing an official function in relation to the 

grand jury," so the issue presented is whether the disclosure of 

exculpatory evidence to defense counsel is within the scope of 

the "the performance of his or her official duties."

There can be no doubt that the use of inculpatory grand 

jury testimony to prosecute a defendant in a criminal case is 

within the scope of the performance of a prosecutor's official 

duties. The disclosure of exculpatory grand jury testimony to 

defense counsel is equally within the scope of the performance 

of a prosecutor's official duties. For a prosecutor, disclosure 

of information that may permit a defendant to prove his or her 

innocence should be equally as important as securing the 

conviction of a guilty party:

"The [prosecutor] is the representative not of an ordinary 

party to a controversy, but of a sovereignty whose 
29

obligation to govern impartially is as compelling as its 

obligation to govern at all; and whose interest, therefore, 

in a criminal prosecution is not that it shall win a case, 

but that justice shall be done. As such, he [or she] is in 

a peculiar and very definite sense the servant of the law, 

the twofold aim of which is that guilt shall not escape or 

innocence suffer."

Berger v. United States, 295 U.S. 78, 88 (1935). See Jackson, 

The Federal Prosecutor, reprinted in 24 J. Am. Jud. Soc'y 18, 20

(1940) ("A sensitiveness to fair play and sportsmanship is 

perhaps the best protection against the abuse of power, and the 

citizen's safety lies in the prosecutor who tempers zeal with 

human kindness, who seeks truth and not victims, who serves the 

law and not factional purposes, and who approaches his [or her]

task with humility").15

We therefore conclude that the disclosure to defense 

counsel of exculpatory information arising from a grand jury 

proceeding is as much a part of a prosecutor's official duty as 

the presentation of inculpatory evidence at trial. Because the 

disclosure of exculpatory grand jury information is within the 

performance of a prosecutor's official duties under rule 5 (d), 

it may be disclosed without an order of a court. A judge would 

have to review the disclosure to defense counsel only if the 

 

15 United States Attorney General Robert H. Jackson 

delivered this address at the Second Annual Conference of United 

States Attorneys in Washington, D.C., on April 1, 1940. See 

Jackson, The Federal Prosecutor, reprinted in 24 J. Am. Jud. 

Soc'y 18, 18 (1940).
30

prosecutor sought a protective order limiting further 

dissemination of the information.

Consequently, as to the first three issues identified by 

the single justice, we conclude, as did the district attorney,

that the prosecutors here have a Brady obligation to disclose 

the exculpatory information at issue to unrelated criminal 

defendants in cases where a petitioner is a potential witness or 

prepared a report in the criminal investigation. That 

obligation remains even though that information was obtained in 

grand jury testimony compelled by an immunity order. And the 

district attorney may fulfill that obligation without prior 

judicial approval; a judge's order is needed only for issuance 

of a protective order limiting the dissemination of grand jury 

information.

More broadly, we conclude that where a prosecutor 

determines from information in his or her possession that a 

police officer lied to conceal the unlawful use of excessive 

force, whether by him- or herself or another officer, or lied 

about a defendant's conduct and thereby allowed a false or 

inflated criminal charge to be prosecuted, the prosecutor's 

obligation to disclose exculpatory information requires that the 

information be disclosed to defense counsel in any criminal case 

where the officer is a potential witness or prepared a report in 

the criminal investigation.
31

We note that the United States Department of Justice, 

through its "Policy Regarding the Disclosure to Prosecutors of 

Potential Impeachment Information Concerning Law Enforcement 

Agency Witnesses," known as its "Giglio Policy," has established 

a procedure whereby Federal prosecutors obtain potential 

impeachment information from Federal investigative agencies, 

such as the Federal Bureau of Investigation, regarding law 

enforcement agents and employees who may be witnesses in the 

cases they prosecute. United States Department of Justice, 

Justice Manual, Tit. 9-5.100 (updated Jan. 2020) (Manual), 

https://www.justice.gov/jm/jm-9-5000-issues-related-trials-andother-court-proceedings [https://perma.cc/NKL2-YZ2J]. According 

to the policy:

"Prosecutors should have a candid conversation with 

each potential investigative agency witness and/or 

affiant with whom they work regarding any on-duty or 

off-duty potential impeachment information, including 

information that may be known to the public but that 

should not in fact be the basis for impeachment in a 

federal criminal court proceeding, so that prosecuting 

attorneys can take appropriate action, be it producing 

the material or taking steps to preclude its improper 

introduction into evidence."

Id. at Tit. 9-5.100(1). In addition, each United States

Attorney's office designates a "requesting official" who may ask 

an investigative agency's official to provide potential 

impeachment information regarding an agency employee associated 

with the case or matter being prosecuted. Id. at Tit. 9-
32

5.100(2)-(4). When a case is initiated within the United States

Attorney's office, the prosecutor responsible for the case, to 

supplement the information obtained directly from the agency 

employees involved in the case, may ask the office's requesting 

official to obtain from the agency's designated official any 

potential impeachment information regarding those agency 

employees. Id. at Tit. 9-5.00(4). Potential impeachment 

information may include, but is not limited to:

"i) any finding of misconduct that reflects upon the 

truthfulness or possible bias of the employee,

including a finding of lack of candor during a 

criminal, civil, or administrative inquiry or 

proceeding;

"ii) any past or pending criminal charge brought 

against the employee;

"iii) any allegation of misconduct bearing upon 

truthfulness, bias, or integrity that is the subject 

of a pending investigation;

"iv) prior findings by a judge that an agency employee 

has testified untruthfully, made a knowing false 

statement in writing, engaged in an unlawful search or 

seizure, illegally obtained a confession, or engaged 

in other misconduct;

"v) any misconduct finding or pending misconduct 

allegation that either casts a substantial doubt upon 

the accuracy of any evidence -- including witness 

testimony -- that the prosecutor intends to rely on to 

prove an element of any crime charged, or that might 

have a significant bearing on the admissibility of 

prosecution evidence . . . ; 

"vi) information that may be used to suggest that the 

agency employee is biased for or against a 

defendant . . . ; and
33

"vii) information that reflects that the agency 

employee's ability to perceive and recall truth is 

impaired."

Id. at Tit. 9-5.100(c)(5).

This policy is not intended to grant any rights to 

defendants and does not have the force of law. Id. at Tit. 9-

5.100 (preface). But it reflects the department's recognition 

of the need for prosecutors to learn of potential impeachment 

information regarding all the investigating agents and employees 

participating in the cases they prosecute, so that they may 

consider whether the information should be disclosed to defense 

counsel under the Brady and Giglio line of cases. See id. We 

do not possess the authority to require the Attorney General and 

every district attorney in this Commonwealth to promulgate a 

comparable policy, but we strongly recommend that they do.16

 

16 WBUR radio recently reported that three of the eleven 

district attorneys in Massachusetts maintain some form of a list 

of police officers who were "flagged by prosecutors as either 

having engaged in or been accused of misconduct that the 

[district attorney's] office might legally need to disclose" to 

defense counsel because the information is relevant to the 

credibility of the officers. See WBUR News, "Few Mass. DAs Keep 

Police Watch Lists. Constitutional Questions Exist For Those 

Who Don't," Aug. 18, 2020, https://www.wbur.org/news

/2020/08/18/police-brady-lists-middlesex-district-attorney

[https://perma.cc/NE45-4444].

In addition, we note that prosecutive offices in a number 

of other States have established policies or protocols governing

the discovery and disclosure of potential exculpatory 

impeachment information regarding law enforcement witnesses.

See, e.g., Memorandum of the New Jersey Attorney General,

Disclosure of Exculpatory and Impeachment Evidence in Criminal 
34

2. Disclosure of false statements to police department. 

As earlier noted, the judge denied the district attorney's 

motion for an order authorizing the disclosure of information 

concerning the petitioners' grand jury testimony to the Fall 

River police department. The judge concluded that the 

department already had substantial information to commence 

disciplinary proceedings and that the information the district 

attorney sought to disclose would provide the department with 

"no additional material information." Although the district 

attorney does not challenge the judge's order, the single 

justice asked the parties to address in their briefs, in 

essence, whether disclosure to the police chief would have been 

permissible if the police department did not already know of the 

 

Cases, Brady and Giglio Practical Application, Investigative 

Employees and Potential Giglio Material (June 18, 2019), at 5,

https://www.nj.gov/oag/dcj/policies.html [https://perma.cc/YP9WLY2R ] (noting that "[i]t is imperative that investigative 

personnel assist with the prosecuting agency's legal duty to 

review and, if necessary, disclose evidence that may impact the 

credibility of potential investigative State witnesses," and 

providing examples of Giglio material); Memorandum of the New 

Hampshire Attorney General, The Exculpatory Evidence Protocol 

and Schedule (March 21, 2017), https://www.doj.nh.gov/criminal

/documents/exculpatory-evidence-20170321.pdf [https://perma.cc

/GU6X-HUK9 ] (creating protocol for an exculpatory evidence 

schedule); Washington Association of Prosecuting Attorneys, 

Model Policy, Disclosure of Potential Impeachment Evidence for 

Recurring Investigative or Professional Witnesses (June 19,

2013), http://waprosecutors.org/manuals/ [https://perma.cc/RHE2-

L3Q8] (model guidelines for creation and maintenance of 

potential impeachment evidence lists for law enforcement 

witnesses).
35

petitioners' false statements, and whether any such disclosure 

would require prior judicial approval.

We generally are reluctant to address issues that are not 

the subject of a live dispute, or orders that have not been 

challenged by any of the parties, but we respect the single 

justice's implicit recognition that guidance on these matters is 

needed. We therefore will provide guidance, albeit limited to 

the type of false statements at issue in this case. In 

providing this guidance, we do not evaluate the merits of the 

judge's decision in the case. Indeed, we address a factual 

circumstance quite different from that addressed by the judge --

where the police chief, in the absence of the requested 

disclosure by the district attorney, would not know that 

immunized grand jury testimony revealed the misconduct of two 

police officers in the department.

We have already declared, supra, that where a prosecutor 

determines that a potential police witness lied to conceal a 

police officer's unlawful use of excessive force, or lied about 

a defendant's conduct and thereby allowed a false or inflated 

criminal charge to be prosecuted, the prosecutor's obligation to 

disclose exculpatory information requires that the information 

be disclosed to defense counsel in any case where the officer is 

a potential witness or prepared a report in the criminal 

investigation. Where this disclosure must be made to defense 
36

counsel, it must also be made to the police chief of the 

department because the consequence of such disclosure is to 

jeopardize or, at a minimum, complicate the successful 

prosecution of any criminal case where the police officer played 

a significant role. It would make no sense for the prosecutor 

and defense counsel to possess this information, and for the 

police chief to be deprived of the same information. The police 

chief needs this information to determine whether to fire or 

otherwise discipline the officer, place the officer on desk 

duty, or take other steps to ensure the integrity of the 

department and its criminal cases. Because the disclosure of 

this information arises from the prosecutor's Brady obligation, 

no prior judicial approval is required to make this disclosure, 

even if it arises from immunized grand jury testimony.

If, however, other police misconduct is revealed through a 

grand jury investigation that does not require the prosecutor 

under his or her Brady obligation to disclose the misconduct to 

defense counsel in any case where the officer is a potential 

witness or prepared a report in the criminal investigation, 

prior judicial approval should be obtained before this grand 

jury information may be revealed to the officer's police chief. 

See Mass. R. Crim. P. 6 (d). See also Petition of Craig v. 

United States, 131 F.3d 99, 102-103 (2d Cir. 1997) (holding that 

Fed. R. Crim. P. 6 [e] [3] contains permissive, not exhaustive, 
37

list of reasons for release of grand jury materials, and 

affirming nonexhaustive list of factors judges may consider when 

evaluating "special circumstances" motions to release grand jury 

materials). In the absence of a live dispute, and the facts 

that would accompany such a dispute, we do not opine as to the 

circumstances when, if at all, such approval should be granted.

Conclusion. The case is remanded to the county court for 

entry of a judgment denying the petition under G. L. c. 211, 

§ 3, thereby leaving intact the judge's order allowing the 

district attorney's motion to make the Brady disclosure.

So ordered.