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, 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 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 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 constitutional question is whether the statement is testimonial.

Crawford did not define “testimonial” with precision. That work was left to subsequent decisions, beginning with Davis v. Washington (547 U.S. 813, 2006). See also: Illegal Searches and Seizures in Massachusetts.

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.

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. Massachusetts courts have applied Davis to hold that the non-testimonial character of a 911 call can shift mid-call if the emergency resolves and the primary purpose of the conversation changes to fact-gathering for prosecution. 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 foundation requirements are:

A startling event occurred. A domestic assault, a strangulation, an assault with a dangerous weapon. these events qualify. 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 she 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.

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 relevant circumstances for determining whether an emergency is ongoing include not just the complainant’s situation but the threat posed by the defendant 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 in a typical domestic violence call is measured in minutes, and defense counsel should identify exactly when that transition occurred with respect to each statement the Commonwealth seeks to introduce.

Forfeiture by Wrongdoing: Giles v. California

The forfeiture by wrongdoing doctrine is recognized in Giles v. California (554 U.S. 353, 2008) and adopted in Massachusetts. 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. The Commonwealth must prove forfeiture by a preponderance of the evidence. Giles requires not merely that the defendant caused the witness’s unavailability, but that the defendant did so with the specific 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. 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 Giles requirement of specific intent to prevent testimony gives defense counsel an argument. A defendant who had innocent contact with the complainant. such as arranging childcare, retrieving personal property, or attending a shared family event, and whose contact is 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 carries a felony conviction that cannot be sealed or expunged.

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 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. See: 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. 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/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.

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. See: 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; statements made to document facts for prosecution are testimonial.
• Michigan v. Bryant (562 U.S. 344, 2011) extended the ongoing emergency concept to include threats to 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 specific intent to prevent testimony for forfeiture by wrongdoing. 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. Boston office: 20 Park Plaza #400A. Quincy office: 500 Victory Rd., Suite 400A. 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