The statute is simply not addressed to the interests of defendants." Smith v. Commonwealth, 386 Mass. 345, 349 (1982) (internal citations omitted). Accordingly, the Court cannot conclude that trial's counsel failure to challenge the grant of immunity to Laboy, or his immunized trial testimony, constituted deficient performance and, therefore, need not reach the second prong of the Strickland v. Washington, 466 U.S. 668 (1984) test regarding whether such deficient performance prejudiced the defense.
, In re Criminal Investigation No. 1–162, 307 Md. at 679–80, 516 A.2d 976. In Smith v. Commonwealth, 386 Mass. 345, 436 N.E.2d 377 (1982), the Supreme Court of Massachusetts held that “a defendant has no standing to argue that the testimony of purportedly immunized witnesses is the product of improper grants of immunity.” Id. at 379 (internal quotation marks and alterations omitted).
To the contrary, ‘[w]e have held, without qualification, that a defendant “has no standing to argue that the testimony of ... purportedly immunized witnesses [is] the product of improper grants of immunity,” ’ reasoning that ‘[t]he privilege against self-incrimination is a personal right of the witness, and one that the witness is in a position to protect by his own means.’ Smith v. Commonwealth, 386 Mass. 345, 349 (1982), citing Commonwealth v. Simpson, 370 Mass. 119, 121 (1976). While a prospective defense witness's assertion of his right under the Fifth Amendment ... could affect a defendant's ability to present his defense most effectively, the compulsory process provisions of the Federal and State Constitutions do not mandate a judicial grant of immunity to such a witness as a matter of course.
To the contrary, “[w]e have held, without qualification, that a defendant ‘has no standing to argue that the testimony of ... purportedly immunized witnesses [is] the product of improper grants of immunity,’ ” reasoning that “[t]he privilege against self-incrimination is a personal right of the witness, and one that the witness is in a position to protect by his own means.” Smith v. Commonwealth, 386 Mass. 345, 349, 436 N.E.2d 377 (1982), citing Commonwealth v. Simpson, 370 Mass. 119, 121, 345 N.E.2d 899 (1976). While a prospective defense witness's assertion of his right under the Fifth Amendment to the United States Constitution could affect a defendant's ability to
The statute is simply not addressed to the interests of defendants.” Commonwealth v. Figueroa, 451 Mass. 566, 578, 887 N.E.2d 1040 (2008), quoting Smith v. Commonwealth, 386 Mass. 345, 349, 436 N.E.2d 377 (1982). “A defendant has no right to be part of the process in which a witness's claim of a [privilege under the Fifth Amendment to the United States Constitution] is considered.
Valente's privilege, to the degree that it may have survived, belonged only to Valente himself, not to the defendant. See Commonwealth v. Figueroa, 451 Mass. 566, 578 (2008); Smith v. Commonwealth, 386 Mass. 345, 349 (1982); Commonwealth v. Rivera, 37 Mass. App. Ct. 244, 251 (1994). 4.
These arguments have no merit because "[w]e have held, without qualification, that a defendant 'has no standing to argue that the testimony of . . . purportedly immunized witnesses [is] the product of improper grants of immunity.'" Smith v. Commonwealth, 386 Mass. 345, 349 (1982), quoting Commonwealth v. Simpson, 370 Mass. 119, 121 (1976). See Commonwealth v. Mattos, 404 Mass. 672, 680-681 (1989) (counsel not ineffective where defendant had no standing to challenge search and seizure).
Although grand jury proceedings are secret, see, e.g., WBZ-TV4 v. District Attorney for Suffolk Dist., 408 Mass. 595, 599-600 (1990), we may summarize pertinent facts contained in the grand jury minutes. See, e.g., Smith v. Commonwealth, 386 Mass. 345, 345-347 (1982) (describing facts contained in grand jury minutes). See also Globe Newspaper Co. v. Police Comm'r of Boston, 419 Mass. 852, 865-866 (1995) (summarizing interests protected by maintaining secrecy of grand jury proceedings).
See People v. Rodriguez (Colo. 1996), 914 P.2d 230, 266-267; Kerns v. State (Wyo. 1996), 920 P.2d 632, 637; State v. Pierson (1988), 208 Conn. 683, 688, 546 A.2d 268, 270; Smith v. Commonwealth (1982), 386 Mass. 345, 348-349, 436 N.E.2d 377, 379; State v. Ahmadjian (R.I. 1981), 438 A.2d 1070, 1078; State v. Phillips (1979), 297 N.C. 600, 606-607, 256 S.E.2d 212, 216; Commonwealth v. Showers (1996), 452 Pa. Super. 135, 153, 681 A.2d 746, 755; People v. Wisely (1990), 224 Cal.App.3d 939, 943-944, 274 Cal.Rptr. 291, 294; State v. Kingbird (Minn.App. 1987), 412 N.W.2d 350, 354. A number of federal courts also take this view.
The court was not saying, nor was the defendant arguing, however, that the witness's immunity extended only to § 20D crimes. See Smith v. Commonwealth, 386 Mass. 345, 348 (1982), where the court did not reach the argument that an immunized witness, allegedly a minor, was not adequately immunized because delinquency charges are not mentioned in § 20D. Whatever doubts there may have been about the scope of § 20G immunity are not resolved. The transactional immunity granted by § 20G is stated in language substantially similar to that considered in Cabot v. Corcoran, 332 Mass. 44, 46 (1954), which this court said "was designed to grant an immunity as broad in all respects as the [art.