Materiality of Witness Pierces the Witness Protection Veil

January 16, 2013
By Parker Scheer LLP on January 16, 2013 1:01 PM |

Jordan Platt was charged with a number of criminal offenses, including home invasion.

A key piece of evidence against him was an audio recording.

The problem - the audio recording was made by an individual in the state witness protection program.

The issue - the audio recording was made without Platt's consent, which is a violation of State and Federal wiretapping laws.

So Platt filed a motion, twice, to discover the witness' address. Both motions were denied. Platt then moved for issuance of a summons to force the witness to attend the suppression hearing.

Deciding without a hearing, a single justice granted Platt's motion and ordered the Commonwealth to provide the witness' address to the court under seal. At the time of this decision, the suppression hearing was scheduled for the next day. The Commonwealth filed a motion for relief from the order under G.L. c. 211, § 3 which the single justice denied. The Commonwealth appealed.

Under Massachusetts' G.L. c. 211, § 3, relief will be granted when the situation is extraordinary. " 'The fact that the Commonwealth has no other remedy does not make [G.L.] c. 211, § 3, review automatic.' ... 'We have rarely allowed Commonwealth appeals of interlocutory matters under our supervisory powers.... We will review interlocutory matters in criminal cases only when "substantial claims" of "irremediable" error are presented ... and only in "exceptional circumstances" ... where "it becomes necessary to protect substantive rights." ' " Commonwealth v. Richardson, 454 Mass. 1005, 1005-1006 (2009), quoting Commonwealth v. Cook, 380 Mass. 314, 319-320 (1980). "No party, including the Commonwealth, should expect this court to exercise its extraordinary power of general superintendence lightly." Commonwealth v. Richardson, supra at 1006, citing Commonwealth v. Narea, 454 Mass. 1003, 1004 n. 1 (2009).

Reviewing the circumstances, the Supreme Judicial Court noted that the witness' testimony was essential to Platt's motion to suppress the audio recording. Further, since the order was solely to secure the witness' attendance at the suppression hearing and the witness' address would be under seal, it was not being disclosed to the defendant or his counsel, the court was considering the witness' safety. Therefore, the single justice did not err or abuse her discretion and the judgment was affirmed. Commonwealth v. Jordan Platt.

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