Cross-Examining an Absent Accuser: Excited Utterances, Spontaneous Utterances, and Section 806 in a Massachusetts Domestic Violence Trial

Some of the hardest fought Massachusetts domestic violence cases I try are the ones where the accuser never takes the stand. The person who called 911 recants, refuses to appear, or has reconciled and wants the case gone. The Commonwealth does not always drop those cases. It tries to prove them through the recording and through the officer who repeats what the accuser said at the scene. When that happens, the trial becomes a contest over two rules, the spontaneous utterance exception and the Confrontation Clause, and over a third rule that works in my favor once a statement comes in. This is how I approach that trial, and the law in this area continues to develop in the Supreme Judicial Court and the Appeals Court.

My first task is to separate the 911 call from the statements the officer collected at the door, because the law treats them differently. A statement is testimonial where its primary purpose is creating an out-of-court substitute for trial testimony, and it is nontestimonial where the primary purpose is to enable the police to meet an ongoing emergency. Michigan v. Bryant, 562 U.S. 344 (2011); Commonwealth v. Imbert, 479 Mass. 575 (2018); Davis v. Washington, 547 U.S. 813 (2006). A call for help placed during a genuine emergency is usually nontestimonial and can be admitted, while the account a person gives to an officer after the scene is secure, in answer to questions about what happened, is often testimonial and cannot come in unless the accuser testifies. Crawford v. Washington, 541 U.S. 36 (2004). So I go through the recording and the report statement by statement and sort each one. I do not concede that everything the accuser said is a single admissible block, because it is not.

Next I litigate the foundation for the spontaneous utterance itself. The exception requires a startling event that renders the normal reflective thought processes inoperative and a statement that was a spontaneous reaction to it rather than the product of reflective thought. Commonwealth v. Barbosa, 477 Mass. 658, 672-673 (2017); Mass. G. Evid. § 803(2). The Supreme Judicial Court now uses the term spontaneous utterance for what many still call the excited utterance. Commonwealth v. Hart, 493 Mass. 130 (2023). I ask for the voir dire the law contemplates before a judge admits the spontaneous utterance of a person who will not testify. Commonwealth v. Hurley, 455 Mass. 53, 68 n.14 (2009). At that hearing I press the officer on the things that undo spontaneity: how much time had passed, whether the words came out only after a series of questions, and whether the accuser was calm, composed, and giving a narrative rather than reacting to a shock. Timing alone is not decisive, because a statement can remain spontaneous after a substantial interval where the stress of the event still controls the speaker. Commonwealth v. Nunez Severino, No. 24-P-1211 (Mass. App. Ct. Oct. 15, 2025). But a structured, later account is not a spontaneous utterance, and Massachusetts has said as much about a written statement and about a nurse examiner interview conducted after the emergency had passed. Commonwealth v. DiMonte, 427 Mass. 233, 239 (1998); Commonwealth v. McCoy, 456 Mass. 838, 849 (2010).

If the Commonwealth argues that my client forfeited the right to confront the accuser, I meet that head on. Forfeiture by wrongdoing requires proof that the defendant intended to make the witness unavailable, not merely that the witness is gone. Commonwealth v. Edwards, 444 Mass. 526 (2005); Giles v. California, 554 U.S. 353 (2008). The wrongdoing can be persuasion rather than violence, as where a defendant used calls from jail to discourage the complainant from cooperating. Commonwealth v. Szerlong, 457 Mass. 858 (2010); Commonwealth v. Valentin, 91 Mass. App. Ct. 515, 520 (2017). An accuser who decides on their own not to testify, for reasons of their own, does not hand the Commonwealth a forfeiture, and I hold the prosecution to the intent element it has to prove. The wider confrontation and forfeiture framework is the subject of my post on the Confrontation Clause and forfeiture by wrongdoing in domestic violence cases.

Here is the part that many people do not expect. When the Commonwealth wins the fight to admit the accuser’s words, it also opens that person up to me. Section 806 of the Massachusetts Guide to Evidence provides that once a hearsay statement is admitted, the declarant’s credibility may be attacked as if that person had testified, and a prior inconsistent statement comes in regardless of whether the declarant ever had a chance to explain it. Mass. G. Evid. § 806; Commonwealth v. Mahar, 430 Mass. 643, 649 (2000); Commonwealth v. Gray, 463 Mass. 731, 748 & n.17 (2012). So I get to cross-examine the accuser who is not in the room. I do it through the officer and through the record. The recantation, the affidavit asking that the case be dropped, the friendly messages that followed the arrest, the pending divorce or custody fight, any immigration benefit that turns on the accusation, and any prior conviction the statute allows all go in front of the jury, aimed at the credibility of the person whose words the Commonwealth chose to use. G.L. c. 233, § 21.

I also make the recording work against the report. The officer who takes the stand did not see the underlying event and knows only what was reported, so I examine that officer on what the report left out and on how the account was really gathered. The cruiser camera, the body camera, and the booking video frequently show a scene calmer and more ambiguous than the words on the page, and a jury that can watch the night for itself is not bound by the officer’s summary. The full discipline of that examination is on my page about cross-examination in Massachusetts criminal trials, and the evidentiary framework, with the governing cases, is laid out on my page about excited utterances and spontaneous utterances when an accuser recants or refuses to testify.

The same incident often produces a parallel 209A abuse prevention order or 258E harassment prevention order proceeding, and a charge of assault and battery on a family or household member. None of this is about attacking a genuine victim. It is about holding the Commonwealth to its proof when it tries to convict a person on words that were never tested under oath. If you are facing a Massachusetts domestic violence charge in which the accuser has recanted or may not testify, call me at 617.936.0201 for a confidential consultation.

Related Resources

• Excited Utterances and Spontaneous Utterances When an Accuser Recants. Practice Page
• Excited Utterance and Recanting Accuser FAQs. FAQ
• Boston Domestic Violence Defense Lawyer. Practice Area Hub
• Massachusetts Criminal Defense Practice Areas. Practice Area Overview
• Restraining and Harassment Prevention Orders. Practice Area Hub
• Cross-Examination in Massachusetts Criminal Trials
• The Confrontation Clause and Forfeiture by Wrongdoing in Domestic Violence Cases. Blog Post
• Recantation in Massachusetts Domestic Violence Cases. Blog Post
• Assault and Battery on a Family or Household Member (M.G.L. c. 265, § 13M)
• Strangulation or Suffocation (M.G.L. c. 265, § 15D)
• Threats to Commit a Crime (M.G.L. c. 275, § 2)
• 209A Abuse Prevention Orders
• 258E Harassment Prevention Orders
• Domestic Violence and Immigration Consequences