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. In that situation the trial becomes a contest over two rules, the spontaneous utterance exception and the Confrontation Clause, and then over a third rule that works in my favor once a statement comes in. This is how I approach that trial.

Sorting the 911 Call From the Statements at the Door

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. The account a person gives to an officer after the scene is secure, in answer to questions about what happened, is often testimonial. A testimonial statement generally cannot come in unless the accuser testifies, or is unavailable after I had an adequate opportunity to cross-examine at an earlier hearing. Crawford v. Washington, 541 U.S. 36 (2004).

Under Davis and Bryant, the judge looks objectively at the statements and actions of both the accuser and the officer to decide whether the statement is testimonial. In the companion case, the officer “was not seeking to determine (as in Davis) ‘what is happening,’ but rather ‘what happened.’”

In Commonwealth v. Gonsalves, 445 Mass. 1 (2005), the Supreme Judicial Court once stated the rule more favorably to the defense than the federal courts have. The court held that “statements made in response to questioning by law enforcement agents are per se testimonial, except when the questioning is meant to secure a volatile scene or to establish the need for or provide medical care.” In Commonwealth v. Wardsworth, 482 Mass. 454, 464 n.18 (2019), the court clarified that the appropriate analysis is the primary purpose test.

Statements made in response to police interrogation are therefore not testimonial per se, although they will qualify as testimonial in many cases. Gonsalves also holds the point that organizes this whole analysis, which is that “a statement can be both testimonial in nature and a spontaneous utterance.” Clearing the hearsay exception does not clear the Confrontation Clause.

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.

Litigating the Spontaneous Utterance Foundation

Next I litigate the foundation for the spontaneous utterance itself. The exception requires “(A) . . . an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and (B) . . . that the declarant’s statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought.” Commonwealth v. Barbosa, 477 Mass. 658, 672 (2017); Mass. G. Evid. § 803(2).

The Supreme Judicial Court uses the term spontaneous utterance for what many still call the excited utterance. The court adopted that usage in Commonwealth v. Gonsalves, 445 Mass. 1, 4 n.1 (2005), and reiterated it in 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 what undoes spontaneity. I ask how much time had passed, whether the words came 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. “[T]here can be no definite and fixed time limit [between the incident and the statement]. Each case must depend upon its own circumstances.” Barbosa, 477 Mass. at 672 to 673. Accord Commonwealth v. King, 436 Mass. 252, 254 (2002); Commonwealth v. Wilcox, 72 Mass. App. Ct. 344, 351 (2008). The question is whether the declarant remained under the influence of the exciting event.

A structured, later account is a different thing. Massachusetts has said so about a written statement. Commonwealth v. DiMonte, 427 Mass. 233, 239 (1998) (“[b]ecause a writing is more suspect as a spontaneous exclamation than is an oral statement, the circumstances of the writing would have to include indicia of reliability even more persuasive than those required for an oral statement”). Massachusetts has said the same about a sexual assault nurse examiner interview conducted two hours after the event and developed by question and answer. Commonwealth v. McCoy, 456 Mass. 838, 849 (2010).

I also tell clients what happens if that fight is lost, because the answer is unwelcome and they should hear it from me first. A spontaneous utterance can support a conviction by itself. “A spontaneous utterance is sufficient, by itself, to support a conviction,” and the Supreme Judicial Court has declined “to add any requirement of corroboration to the spontaneous utterance exception to the hearsay rule.” Commonwealth v. Moquette, 439 Mass. 697 (2003).

Moquette also states the reality a recantation runs into. In the court’s words, “it is up to the jury to determine whether to place greater weight on what the declarant said in the immediate aftermath of the event or on what the declarant is now saying at trial.” That is precisely why the impeachment described below is the center of the defense rather than an afterthought.

A complainant’s motive to lie “goes to the weight to be accorded the statements, rather than to their admissibility,” and “a victim’s motive or lack thereof should play no part in the calculus of determining admissibility.” Commonwealth v. Joyner, 55 Mass. App. Ct. 412, 417 (2002). The motive argument is not an admissibility argument. It is an impeachment argument.

Forfeiture by Wrongdoing

I meet directly any argument by the Commonwealth that my client forfeited the right to confront the accuser. Forfeiture requires three findings, namely that “(1) the witness is unavailable; (2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and (3) the defendant acted with the intent to procure the witness’s unavailability.” Commonwealth v. Edwards, 444 Mass. 526, 540 (2005); Giles v. California, 554 U.S. 353 (2008); Mass. G. Evid. § 804(b)(6).

The wrongdoing need not be a criminal act, and it can be persuasion rather than violence, as where a defendant used calls from a house of correction to discourage a complainant from cooperating. Commonwealth v. Szerlong, 457 Mass. 858 (2010); Commonwealth v. Valentin, 91 Mass. App. Ct. 515, 520 (2017). Unavailability need only be a purpose of the conduct rather than the sole purpose. Szerlong.

An accuser who decides independently not to testify, for reasons of their own, does not hand the Commonwealth a forfeiture, and I hold the prosecution to the intent element. There is a reliability backstop worth preserving even where forfeiture is found. Due process requires that hearsay admitted against a defendant be reliable, and where hearsay is the only evidence, “the indicia of reliability must be substantial.” Szerlong, 457 Mass. at 866.

What Section 806 Permits

The Commonwealth exposes the accuser to impeachment when it wins the fight to admit the accuser’s words.

Section 806 of the Massachusetts Guide to Evidence provides that once a hearsay statement is admitted, “the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness,” and that evidence of an inconsistent statement or conduct may be admitted “regardless of when it occurred or whether the declarant had an opportunity to explain or deny it.” Mass. G. Evid. § 806; Commonwealth v. Mahar, 430 Mass. 643, 649 (2000) (“[e]vidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain”).

In Commonwealth v. Gray, 463 Mass. 731 (2012), the Supreme Judicial Court reversed a conviction of murder in the first degree because the judge precluded impeachment of a non-testifying declarant with prior inconsistent grand jury testimony.

Section 806 is impeachment, not cross-examination. It permits attacking credibility through extrinsic evidence. It does not produce a cross-examination of a person who is not present. The only cross-examination the rule contemplates runs the other way, if the party against whom the statement was admitted calls the declarant as a witness.

Section 806 does not solve the Confrontation Clause. Impeachment is not a substitute for confrontation where the statement is testimonial. In Hurley the Supreme Judicial Court found a Sixth Amendment violation because the defendant “did not have an adequate opportunity to cross-examine [the declarant] with respect to the[] accuracy and truth” of specific facts in the utterance.

Section 806 is a parity provision, not an admissibility multiplier. It permits “any evidence that would be admissible for those purposes if the declarant had testified as a witness.” It removes one foundation requirement, the opportunity to explain or deny a prior inconsistent statement.

It creates no new categories of admissible evidence, and Mahar says so directly. In the court’s words, “[t]rial judges, of course, retain the authority to apply to evidence offered under proposed rule 806 rules and principles of evidence that might lead to the exclusion or limitation of evidence, just as they could if the evidence had been offered against the witness had he or she taken the stand.” In Mahar itself the judge’s refusal to admit the defendant’s impeachment evidence was upheld.

So the material divides into two categories, and I treat them differently at trial.

Prior inconsistent statements and conduct. The recantation, the affidavit asking that the case be dropped, and messages inconsistent with the accusation come in under § 806 without the foundation that would otherwise be required. This is the more dependable ground, the one where Mahar and Gray do their work.

Bias, motive, and character. A pending divorce or custody dispute, an immigration benefit connected to the accusation, and a prior conviction are impeachment of a different kind, and each has to satisfy the rules that would apply to a live witness.

For an immigration benefit, that means a threshold showing. “A defendant must make a ‘plausible showing’ of alleged bias, with a factual basis for support,” and without it “the judge may restrict or entirely exclude the inquiry.” Commonwealth v. Chicas, 481 Mass. 316 (2019). The argument “depends on a showing that the witness was testifying in order to curry favor with the Commonwealth.”

In Commonwealth v. Sealy, 467 Mass. 617, 624 (2014), the Supreme Judicial Court upheld a judge who “precluded further cross-examination on the issue of the victim’s prior work authorization, ruling that any relevance it might have had was far outweighed by its prejudicial impact.” The line of attack is legitimate, and it requires a foundation.

For a prior conviction, G.L. c. 233, § 21 sets hard time limits, and the judge retains discretion beyond them. A misdemeanor conviction is inadmissible more than five years after sentencing absent an intervening conviction, a felony with a non-state-prison sentence after ten years, and a state prison felony after ten years from expiration of the minimum term.

And the word “may” in the statute means “the admission of evidence of a prior conviction is subject to the exercise of reviewable discretion by the trial judge,” measured by “whether the danger of unfair prejudice outweighed the probative value.” Commonwealth v. Maguire, 392 Mass. 466 (1984).

I plan the impeachment accordingly. The inconsistent statements are the part I can count on. The bias material is the part I have to earn, with a proffer and a factual basis, before the judge will let me put it before the jury.

Making the Recording Work Against the Report

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 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. 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. The evidentiary framework with the governing cases is set 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.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. Serpa Law Office can be reached at 617.936.0201 for a free and confidential consultation. The Boston office is at 20 Park Plaza #400A. The Quincy Office is at 500 Victory Road, Suite 400A.