The wording of a particular agreement with a key witness is crucial to the conclusion that it is contingent upon the witness's truthfulness, thus invoking the prohibited inference that concerned the Ciampa court. See Commonwealth v. Holmes, 46 Mass. App. Ct. 550, 553-556 (1999). When the language of an agreement makes clear that it is the witness who is making the representation that he will testify truthfully, rather than the government guaranteeing it, the agreement is admissible without any cautionary instruction, provided the prosecutor does not use it improperly in closing argument.

June 3, 1999.Further appellate review denied: Reported below: 46 Mass. App. Ct. 550 (1999).

In entering judgment for the plaintiffs, the judge implicitly found that they had rebutted the presumption. See Commonwealth v. Holmes, 46 Mass.App.Ct. 550, 559 (1999) ("unnecessary to remand for an explicit ruling for what was undoubtedly implicit"). And this implicit finding was supported by the evidence.

"Such relief is unnecessary because the trial court has already considered this issue, and determined that there should be no forfeiture. See Commonwealth v. Holmes, 46 Mass. App. Ct. 550, 559 (1999) (concluding that `in view of the record on appeal, we deem it unnecessary to remand for an explicit ruling for what was undoubtedly implicit in the judge's [decision]'). It is this very issue that is at the heart of this case and should be addressed by this Court as a matter of law. "In considering factor (c) of § 241 of the Restatement (Second) of Contracts, the trial court was obviously weighing the issue of forfeiture. [The trial judge found that] `[t]he third factor, the extent to which the defendant would suffer forfeiture, weighs clearly and strongly in favor of the defendant here.' App. 75-76.