Excited Utterances, Forfeiture by Wrongdoing, and the Confrontation Clause in Massachusetts Domestic Violence Cases

By Attorney Joseph Serpa | Georgetown University Law Center | 30 Years Massachusetts Criminal Defense

A significant evidentiary question in Massachusetts domestic violence cases frequently arises not from what happened during the incident but from what happens at trial when the complainant does not appear. When the complainant invokes the marital privilege, recants, declines to cooperate, or has been influenced not to testify, the Commonwealth does not always concede. It moves to introduce the complainant’s prior out-of-court statements through hearsay exceptions, most often the excited utterance, and it may invoke the forfeiture by wrongdoing doctrine to eliminate the defendant’s Confrontation Clause objections entirely. This post explains each doctrine, how they interact, and what the defense can do at each stage. The substantive trial defenses, including self-defense and mutual combat, are addressed separately.

In a domestic violence case, whether the complaining witness can simply drop the charges is one of the most misunderstood questions in the district courts. The decision belongs to the Commonwealth, not to the alleged victim. Our page on how criminal cases get dismissed in Massachusetts explains what really happens when a witness wants the case to go away, and the narrow grounds on which a judge can dismiss a case without the prosecutor.

The Confrontation Clause: Crawford v. Washington

The Sixth Amendment’s Confrontation Clause provides that in all criminal prosecutions, the accused shall have the right to confront the witnesses against them. Before 2004, the Confrontation Clause was governed by Ohio v. Roberts (448 U.S. 56, 1980), which permitted the admission of hearsay statements bearing adequate indicia of reliability. Crawford v. Washington (541 U.S. 36, 2004) changed the analysis. The Supreme Court held that the Confrontation Clause bars the admission of testimonial hearsay unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine. Reliability alone is not enough. The controlling constitutional question is whether the statement is testimonial.

Crawford did not define the word testimonial with precision. That work was left to later decisions, beginning with Davis v. Washington (547 U.S. 813, 2006) and its companion case Hammon v. Indiana, which the Court decided in the same opinion. The firm’s guide to Illegal Searches and Seizures in Massachusetts covers the related constitutional rules on suppression of physical evidence.

The Testimonial/Non-Testimonial Distinction: Davis v. Washington

Davis v. Washington (547 U.S. 813, 2006) established the primary purpose test. Statements made when the primary purpose is to enable police assistance in an ongoing emergency are non-testimonial and fall outside Crawford. Statements are testimonial when the circumstances objectively indicate that there is no ongoing emergency and the primary purpose is to establish or prove past events potentially relevant to later criminal prosecution. The two consolidated cases mark the poles. The 911 call in Davis, placed while the assault was still unfolding, was non-testimonial. The in-home police interview in Hammon, conducted after the incident had ended and the scene was secure, was testimonial.

The Supreme Judicial Court applied Crawford to police questioning in Commonwealth v. Gonsalves (445 Mass. 1, 2005). The court held that statements made in response to questioning by law enforcement are testimonial per se, except when the questioning is meant to secure a volatile scene or to establish the need for or provide medical care.

In domestic violence cases, Davis produced a practical division. The 911 call made during or immediately after an assault, when the caller is in immediate danger and seeking emergency assistance, is generally non-testimonial. The follow-up interview conducted by a police officer after the defendant has been removed from the scene, the emergency has ended, and the officer’s purpose has shifted from responding to documenting, is generally testimonial. Davis itself recognized that a conversation which begins as a plea for emergency help can evolve into testimonial fact-gathering once the emergency resolves, and Massachusetts courts apply that statement-by-statement approach to 911 calls whose character shifts mid-call. Defense counsel must examine each statement separately.

The Excited Utterance Exception: Foundation Requirements

The excited utterance exception under Massachusetts Guide to Evidence § 803(2) permits admission of a statement relating to a startling event or condition made while the declarant was still under the stress of excitement caused by the event. The exception predates Crawford and is an evidentiary rule, not a constitutional one. A statement can satisfy the excited utterance foundation and still be inadmissible under Crawford if it is testimonial. The hearsay question and the confrontation question are separate.

The foundation has three practical components.

A startling event occurred. A domestic assault, a strangulation, or an assault with a dangerous weapon qualifies. A text message in violation of a restraining order may not meet this threshold depending on the circumstances.

The statement was made while the declarant was still under the stress of excitement. The critical question is the time elapsed between the event and the statement, the complainant’s demeanor at the time of the statement, and whether there was sufficient opportunity for reflection and deliberation. A complainant who was distressed when they called 911 but who was calm, detailed, and responsive to structured police questioning forty minutes later may no longer have been under the requisite stress when the later statement was made.

The statement must relate to the startling event. A statement about the parties’ prior relationship history, or about events that occurred days before the incident, does not relate to the startling event and is not within the exception.

The Commonwealth bears the burden of establishing each element of the excited utterance foundation. Defense counsel challenges the foundation through cross-examination of the responding officer at the motion in limine hearing, through examination of the 911 audio recording for evidence of composure and deliberation, and through review of the police report and body camera footage for evidence of the complainant’s demeanor at the time any statement was made. The firm’s guide to domestic violence procedure in the Greater Boston courts explains where these motions fit in the pretrial sequence.

Michigan v. Bryant and the Ongoing Emergency

Michigan v. Bryant (562 U.S. 344, 2011) extended the Davis primary purpose test. The Court held that the circumstances relevant to whether an emergency is ongoing include not just the complainant’s situation but the threat posed by the defendant to responding officers and to the public at large. When police arrive at a scene without knowing the location of the defendant, the emergency may continue until the defendant is located and the threat is neutralized. Statements made to police during that period may be non-testimonial even if the complainant is no longer in immediate danger.

In Massachusetts domestic violence cases, Bryant is most commonly invoked when police arrive and the defendant is not present. The Commonwealth argues that the emergency is ongoing because the defendant’s location is unknown, and that statements made to police during the initial response are therefore non-testimonial. Defense counsel examines how quickly the defendant’s location was established and argues that the primary purpose of any questioning after that point shifted from emergency response to documentation for prosecution. The transition from emergency response to criminal investigation is typically measured in minutes, and defense counsel should mark exactly when it occurred for each statement the Commonwealth offers.

Forfeiture by Wrongdoing: Giles v. California

Massachusetts adopted the forfeiture by wrongdoing doctrine in Commonwealth v. Edwards (444 Mass. 526, 2005), and the United States Supreme Court fixed its constitutional limits in Giles v. California (554 U.S. 353, 2008). A defendant who engages in wrongdoing designed to prevent a witness from testifying forfeits the Confrontation Clause objection to that witness’s out-of-court statements. Under Edwards the Commonwealth must prove forfeiture by a preponderance of the evidence, and the doctrine carries no independent requirement that the conduct itself be a crime. Giles supplies the intent requirement. It is not enough that the defendant caused the witness’s unavailability. The defendant must have acted with the purpose of preventing testimony.

In Massachusetts domestic violence cases, forfeiture by wrongdoing most commonly arises when the defendant contacts the complainant after arraignment in violation of the 209A order to discuss the case, discourage testimony, or arrange for the complainant to be unavailable at trial. The firm’s 209A and 258E violation FAQs explain the separate criminal exposure that this contact creates on its own. When the Commonwealth proves by a preponderance that the defendant engaged in this conduct specifically to prevent testimony, all prior statements by the complainant become admissible as substantive evidence.

The doctrine reaches further than many defendants expect. In Commonwealth v. Szerlong (457 Mass. 858, 2010), the defendant married the complainant after the incident so that she could invoke the spousal privilege and avoid testifying. The Supreme Judicial Court held that he forfeited his confrontation and hearsay objections because he intended, by marrying her, to make her unavailable as a witness. The court required only that making her unavailable be a purpose of the marriage, not its sole or primary purpose. Marriage is lawful conduct, yet it cost the defendant his confrontation objection.

The Giles requirement of intent to prevent testimony gives defense counsel an argument. A defendant who had innocent contact with the complainant, such as arranging childcare or retrieving personal property, and whose contact is later characterized by the Commonwealth as witness tampering must be able to establish that the purpose of the contact was not to prevent testimony. The timing, content, and context of every post-arraignment contact is potentially discoverable and admissible on the forfeiture question. The same contact that generates the forfeiture argument also generates a separate witness intimidation charge under M.G.L. c. 268, § 13B. That charge is a felony punishable by up to ten years in state prison, and a conviction under chapter 268 cannot be sealed under G.L. c. 276, § 100A, which excludes chapter 268 offenses from sealing, and is rarely eligible for expungement.

How These Doctrines Interact in a Typical Case

A typical Massachusetts domestic violence case involving all three doctrines proceeds as follows. The defendant is arrested following a 911 call. At arraignment, a 209A order is issued as a condition of release prohibiting all contact with the complainant. The defendant contacts the complainant. The complainant does not appear at the scheduled trial date.

At this point the Commonwealth has three potential bases to proceed without a live witness. First, it argues the 911 call is non-testimonial under Davis and admissible as an excited utterance under Massachusetts Guide to Evidence § 803(2). Second, it argues the on-scene statement to police was made during an ongoing emergency under Bryant and is also non-testimonial. Third, it moves for a ruling that the defendant forfeited the Confrontation Clause right under Giles and Edwards by contacting the complainant, and argues that all prior statements are admissible on that basis alone.

If the Commonwealth succeeds on any one of these three arguments, the trial proceeds. If it succeeds on all three, the jury hears the 911 call, the on-scene statement, and any other prior statement by the complainant, without the complainant appearing in court. The same post-arraignment contact that generated the forfeiture argument also generated a separate witness intimidation charge under M.G.L. c. 268, § 13B. These motions are litigated regularly in the region’s dedicated domestic violence sessions, including BMC West Roxbury. For the broader charging and resolution landscape, read How Massachusetts Domestic Violence Charges Are Prosecuted and Resolved in 2026.

Defense at Each Stage

Against the excited utterance argument. Defense counsel files a motion in limine challenging the foundation, including the timing, the complainant’s demeanor, and the structured nature of any police questioning, and requests a voir dire hearing at which the responding officer testifies before trial. Statements made in response to structured police questioning are not spontaneous declarations and weigh against the foundation.

Against the Davis and Bryant non-testimonial argument. Defense counsel identifies the precise moment the emergency ended and argues that any statement made after that point is testimonial and subject to Crawford. In most domestic violence cases the defendant’s location is quickly established and the threat is contained, making the transition from emergency response to documentation measurable in minutes.

Against the forfeiture argument. Defense counsel challenges the sufficiency of the Commonwealth’s showing that the defendant engaged in conduct specifically designed to prevent testimony. Innocent contact, contact that predated arraignment, or contact unrelated to the case may not satisfy the standard under Giles.

Understand what the marital privilege does and does not do. G.L. c. 233, § 20 contains two distinct spousal protections. One clause disqualifies spouses from testifying about their private marital conversations, and that clause does not apply where one spouse is charged with a crime against the other. A separate clause gives a witness spouse the privilege not to be compelled to testify against the other spouse in a criminal proceeding, with exceptions for child abuse and incest proceedings and certain nonsupport prosecutions. That privilege belongs to the witness spouse, not the defendant, and it reaches only live testimony. It does not exclude the complainant’s out-of-court statements, which is exactly why the excited utterance and forfeiture doctrines decide these trials. Szerlong makes the point concrete because the complainant’s hearsay statements were admitted there even though her privilege invocation was valid.

The most reliable path to dismissal. No contact with the complainant from arraignment through the trial date, combined with a marital privilege invocation and successful pretrial motions to exclude the 911 call and on-scene statement, results in a dismissal when the Commonwealth has no admissible evidence sufficient to proceed. That outcome requires the defendant to have given the Commonwealth no basis for a forfeiture argument. For related resolution options and outcomes, review CWOF, Pretrial Probation, and Diversion in Massachusetts FAQs and Representative Trial Results.

Key Takeaways

• Crawford v. Washington (541 U.S. 36, 2004) bars admission of testimonial hearsay unless the declarant testifies or the defendant forfeited the right to object.
• Davis v. Washington (547 U.S. 813, 2006) established the primary purpose test. Statements made to summon emergency assistance are non-testimonial, and statements made to document facts for prosecution are testimonial. Commonwealth v. Gonsalves (445 Mass. 1, 2005) treated statements made in response to police questioning as testimonial per se unless the questioning secured a volatile scene or obtained medical care.
• Michigan v. Bryant (562 U.S. 344, 2011) extended the ongoing emergency concept to include threats to responders and the public at large, giving prosecutors additional latitude to argue that on-scene statements are non-testimonial.
• The excited utterance exception under Massachusetts Guide to Evidence § 803(2) is an evidentiary rule, not a constitutional one. It does not resolve the Confrontation Clause problem for testimonial statements.
• Giles v. California (554 U.S. 353, 2008) requires intent to prevent testimony for forfeiture by wrongdoing. Commonwealth v. Edwards (444 Mass. 526, 2005) adopted the doctrine in Massachusetts and set the preponderance standard, and Commonwealth v. Szerlong (457 Mass. 858, 2010) applied it to a marriage entered in part to trigger the spousal privilege. Contact that is incidental or innocent does not satisfy the standard.
• Post-arraignment contact with the complainant generates a witness intimidation charge, violates the 209A order, and may forfeit the Confrontation Clause defense. All contact must go through counsel.
• The marital privilege under M.G.L. c. 233, § 20, combined with successful pretrial motions to exclude hearsay, remains the most reliable path to a trial-date dismissal, but only when the defendant has given the Commonwealth no forfeiture argument to make.

Serpa Law Office represents defendants in Massachusetts domestic violence cases across the District Courts, Boston Municipal Court, and Superior Court. Attorney Joseph Serpa is a Georgetown Law graduate with thirty years of Massachusetts criminal defense experience. Contact Serpa Law Office at 617.936.0201 for a confidential consultation. The Boston office is at 20 Park Plaza #400A, and the Quincy office is at 500 Victory Rd., Suite 400A. The office is available 24 hours a day.

Related Resources

• Boston Domestic Violence Defense Lawyer. Practice Area Hub
• Assault and Battery on a Family or Household Member (M.G.L. c. 265, § 13M)
• Strangulation or Suffocation (M.G.L. c. 265, § 15D)
• Intimidation of a Witness (M.G.L. c. 268, § 13B)
• Assault and Battery with a Dangerous Weapon (M.G.L. c. 265, § 15A)
• Simple Assault and Assault and Battery in Domestic Violence Cases
• Violation of a 209A Abuse Prevention Order (M.G.L. c. 209A, § 7)
• Violation of a 258E Civil Harassment Prevention Order
• Domestic Violence Sentencing Enhancements
• Massachusetts 209A Abuse Prevention Orders
• Massachusetts 258E Harassment Prevention Orders
• CWOF, Pretrial Probation, and Diversion in Massachusetts FAQs
• Massachusetts Domestic Violence FAQs
• Defending 209A and 258E Restraining Order Violations
• How Massachusetts Domestic Violence Charges Are Prosecuted and Resolved in 2026
• Criminal Defense for Licensed Professionals in Massachusetts
• Immigration Consequences of Massachusetts Criminal Charges
• Digital Search Warrants in Massachusetts
• Illegal Searches and Seizures in Massachusetts
• Representative Trial Results