Recantation in a Massachusetts Domestic Violence Case: Why the Case Does Not End When the Complainant Says It Did Not Happen

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

Recantation is common in Massachusetts domestic violence cases. Days or weeks after an arrest, a complainant may say that the police report is inaccurate, that the incident was exaggerated in the moment, or that they no longer want to participate. A defendant may hear that and assume the case is over. It is not.

The prosecution belongs to the Commonwealth. Massachusetts prosecutors generally follow a no-drop or evidence-based approach, which means they may continue without the complainant’s support. The broader arrest, 209A, and defense framework appears on the firm’s Boston Domestic Violence Defense Lawyer page and in our explanation of how these cases are charged and resolved in Massachusetts.

That rule applies in the Boston Municipal Court, Quincy District Court, and every other Massachusetts trial court. The most damaging response to a recantation is direct or indirect contact intended to influence the complainant’s account. The case should be handled through counsel.

Section 13B does not turn every conversation into a crime. It does, however, prohibit threats, injury, gifts, promises, misleading conduct, intimidation, or harassment—direct or indirect—when accompanied by the intent or reckless disregard specified in the statute. Depending on the words and circumstances, an effort to shape a recantation can produce a separate felony charge.

Our page on intimidation of a witness in Massachusetts explains the statute and the safest role for counsel. The recurring practical questions, including when a request can cross the line, are addressed in the witness-intimidation FAQs.

One of the most misunderstood questions is whether the complaining witness can simply drop the charge. A complainant may express a preference or decline voluntary cooperation, but cannot unilaterally dismiss a Massachusetts criminal case.

The charging and dismissal decisions belong to the Commonwealth. Our guide to how criminal cases get dismissed in Massachusetts explains what can happen when a witness wants a case to end and why a judge’s authority to dismiss over the prosecutor’s objection is narrow.

The Charging Decision Belongs to the Commonwealth

Once an arrest is made or a complaint issues, the case is captioned Commonwealth versus the defendant. The complainant is a witness, not a party with authority to end the prosecution.

Prosecutors expect accounts to change in domestic cases and often collect independent evidence from the first night. That evidence can include the 911 recording, body-camera footage, photographs, medical records, and the responding officers’ observations.

This approach is often called evidence-based prosecution. When the independent proof is strong, a prosecutor may proceed without a cooperative complainant. Waiting for a recantation is therefore not a defense strategy.

A Recanting Witness Can Still Be the Prosecution’s Witness

If the complainant testifies consistently with the recantation, the Commonwealth may use prior inconsistent statements to challenge that testimony. The disputed material may include a 911 call, statements at the scene, and prior sworn testimony from a 209A hearing or grand jury.

Most prior inconsistent statements are admitted only to impeach credibility. Certain sworn prior statements may be admitted for their truth when the Massachusetts requirements are satisfied. An excited utterance presents a separate route to substantive admission if the judge finds that the statement was a spontaneous response to a sufficiently startling event.

The Sixth Amendment adds another layer when the declarant does not testify. Under Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), the court must determine whether a statement was testimonial or instead was made during an ongoing emergency. The framework is discussed in our companion article on excited utterances, forfeiture by wrongdoing, and the Confrontation Clause.

The practical point is straightforward: a recantation does not erase what was said to a dispatcher, an officer, a grand jury, or a judge. Whether any particular statement is admissible depends on its form, purpose, foundation, and the right to confrontation.

Silence Is Governed by Privilege, Not by Recantation

A changed account does not excuse a subpoena or automatically remove a witness from trial. Two privileges recur in domestic cases:

• Spousal privilege. Under M.G.L. c. 233, § 20, Second, a legally married witness generally may decline to testify against the defendant-spouse at a criminal trial. The privilege belongs to the witness-spouse. A willing spouse may testify, and the privilege has defined limits.
• Privilege against self-incrimination. A witness may invoke the Fifth Amendment and Article 12 when truthful answers would create a real risk of self-incrimination. The privilege is ordinarily evaluated by the judge as to particular questions or subjects, often after the witness consults independent counsel. See the Fifth Amendment in Massachusetts civil and related proceedings.

When both people may have used force—for example, during mutual pushing, an object being thrown, or a disputed threat—the same facts can also support a self-defense or mutual-combat theory for the defendant. The witness’s potential exposure and the defendant’s trial defense are related but legally distinct.

These privileges belong to the witness, not to the defendant. Defense counsel may identify the issue, bring it to the court’s attention, and facilitate independent advice where appropriate. Neither a defendant nor counsel may pressure a witness to assert a privilege or tell the witness what testimony to give.

The Line That Ends Defenses: Witness Intimidation and Forfeiture by Wrongdoing

A defendant risks a separate charge by pressuring, threatening, rewarding, misleading, intimidating, or harassing a witness in order to affect an investigation or proceeding. Witness intimidation under M.G.L. c. 268, § 13B is a felony punishable by up to ten years in state prison or two and one-half years in a house of correction, along with a fine.

A Section 13B charge also permits the Commonwealth to seek a dangerousness hearing under M.G.L. c. 276, § 58A. A conviction under chapter 268 is excluded from the ordinary sealing standards in M.G.L. c. 276, § 100A.

Witness interference can also damage the original defense. Under the forfeiture-by-wrongdoing doctrine, a judge may find after an evidentiary hearing that a defendant intentionally helped make a witness unavailable. A supported finding can forfeit hearsay and confrontation objections to statements covered by the doctrine, although Massachusetts due process still requires reliability.

Commonwealth v. Edwards, 444 Mass. 526 (2005), supplies the Massachusetts framework. Giles v. California, 554 U.S. 353 (2008), requires an intent to make the witness unavailable, not merely conduct that happens to have that effect. In Commonwealth v. Szerlong, 457 Mass. 858 (2010), evidence supported forfeiture where the defendant helped create the witness’s unavailability by marrying her so that she could invoke the spousal privilege.

Jail calls are recorded, and messages passed through relatives or friends may become evidence of indirect contact. Court orders and bail conditions may separately prohibit contact. The safest rule, beginning at arraignment, is to follow every order and let counsel handle all case-related communication.

Do not ask the complainant to recant, stay away from court, claim a privilege, or change testimony. Do not use another person to send that message.

What a Genuine Recantation Is Worth

Handled lawfully through counsel, a genuine recantation can matter—sometimes decisively. Its value depends on credibility, timing, consistency, and corroboration. A recantation may:

• expose material inconsistencies if the complainant testifies for the Commonwealth;
• change the prosecutor’s evaluation of the evidence and the terms of negotiation; or
• support reasonable doubt when physical, medical, digital, or eyewitness evidence does not match the original account.

The defense should investigate the change in account without the defendant directing the process. Counsel can compare the recantation with the 911 call, body-camera footage, photographs, medical records, messages, prior testimony, and any evidence of intoxication, anger, or a custody dispute. Where appropriate, counsel can arrange for an independent investigator or attorney to document the account.

A prepared defense assumes that any of three things may happen on the trial date:

1. the complainant testifies for the prosecution;
2. the complainant is unavailable and the Commonwealth seeks to use admissible prior statements; or
3. the complainant testifies consistently with the recantation and is challenged with the earlier account.

That preparation must account for the client’s other exposure. The stakes can be especially significant for students and non-citizens. See the firm’s Boston domestic violence defense page and Massachusetts Criminal Defense Results for the broader defense framework.

Do not secretly record a recanting witness. Massachusetts generally requires prior authorization from every party to an audio recording. A secret recording can create criminal exposure under the Massachusetts wiretap statute, and knowingly using or disclosing an unlawful recording may create additional exposure. Consult counsel before making, playing, or sharing any recording.

Key Takeaways

• A complainant cannot unilaterally drop a Massachusetts domestic violence charge. The Commonwealth controls the prosecution.
• A recantation does not erase prior statements. Admissibility depends on why the statement is offered and whether the hearsay and confrontation requirements are satisfied.
• The spousal privilege and the privilege against self-incrimination belong to the witness. Their existence and scope are legal questions, not decisions for the defendant.
• Threats, promises, gifts, misleading conduct, intimidation, harassment, or indirect pressure can create a Section 13B charge and support forfeiture by wrongdoing.
• A credible, corroborated recantation can materially help the defense when it is investigated lawfully through counsel.

I defend domestic violence cases in the Boston Municipal Court and the District and Superior Courts across Eastern Massachusetts and am available around the clock. Contact me at 617.936.0201 for a confidential consultation.

Related Serpa Law Office resources

• Excited Utterances, Forfeiture by Wrongdoing, and the Confrontation Clause
• Assault and Battery on a Family or Household Member (M.G.L. c. 265, § 13M)
• Intimidation of a Witness (M.G.L. c. 268, § 13B)
• Violation of a 209A Abuse Prevention Order (M.G.L. c. 209A, § 7)
• Massachusetts Domestic Violence Law FAQs
• Massachusetts Criminal Defense Results
• Boston Domestic Violence Defense Lawyer