Recantation in a Massachusetts Domestic Violence Case: Why the Case Does Not End When the Complainant Changes the Story

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

It happens in a large share of Massachusetts domestic violence prosecutions: days or weeks after the arrest, the complainant tells someone, the prosecutor, a victim-witness advocate, defense counsel, or the defendant’s family, that the police report is wrong, that things were exaggerated in the heat of the moment, that there is no wish to go forward. Defendants hear this and believe the case is over. It is not. Every Massachusetts District Attorney’s Office, Suffolk, Norfolk, Middlesex, Essex, and Plymouth alike, maintains a no-drop posture in domestic violence cases: the Commonwealth, not the complainant, decides whether the prosecution continues. Understanding what recantation actually does, and does not do, to a case pending in the Boston Municipal Court, Quincy District Court, or any Massachusetts court is essential to defending it.

The charging decision belongs to the Commonwealth. A complainant cannot drop charges in Massachusetts. Once the arrest is made or the complaint issues, the case is Commonwealth v. Defendant, and the complainant is a witness. Prosecutors are trained to expect recantation in domestic cases and to treat it skeptically, sometimes attributing it to pressure or reconciliation, and they build cases to survive it from the start: 911 recordings, body camera footage, photographs, medical records, and the observations of responding officers.

A recanting witness can still be a prosecution witness. If the complainant testifies at trial consistently with the recantation, the Commonwealth may confront the witness with prior inconsistent statements, the 911 call, the statement in the police report, grand jury or hearing testimony. Most prior inconsistent statements are admissible only to impeach, not as substantive proof, but statements that qualify as excited utterances come in for their truth whether or not the witness sticks to them, and a case can be built on them. The interplay of the excited utterance doctrine and the confrontation clause after Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), is treated at length in our companion post on excited utterances and forfeiture by wrongdoing [ADD LINK to existing post].

Silence is governed by privilege, not by recantation. What actually removes a complainant’s live testimony from a trial is not a changed story but a valid privilege. A legally married spouse may decline to testify against the other spouse under M.G.L. c. 233, § 20. And a complainant whose own conduct in the incident was arguably criminal, mutual pushing, a thrown object, a threat, may invoke the Fifth Amendment privilege against self-incrimination, with the court’s involvement and typically after consultation with independent counsel. These privileges belong to the witness. Neither the defendant nor defense counsel may procure them, and this is the hard line every defendant must hear: any attempt to pressure, coach, or reward a complainant into silence or recantation is itself a felony, intimidation of a witness under M.G.L. c. 268, § 13B, and it has a second consequence that ends defenses entirely.

Forfeiture by wrongdoing. Under Commonwealth v. Edwards, 444 Mass. 526 (2005), a defendant who procures a witness’s unavailability forfeits both the confrontation objection and the hearsay objection to that witness’s out-of-court statements: the 911 call, the police statement, everything, comes in for its truth, with no cross-examination. The Supreme Judicial Court has applied the doctrine broadly, including in Commonwealth v. Szerlong, 458 Mass. 503 (2010), where marrying the complainant so she could invoke the spousal privilege triggered forfeiture. Jail calls in domestic violence cases are recorded and reviewed for exactly this. The message for defendants, including at arraignment in every BMC division and District Court: have no contact about the case, none, and let counsel do the work.

What recantation is actually worth. Handled correctly, a genuine recantation matters. It is impeachment at trial. It reframes plea negotiations. Where the recantation is credible and corroborated, where the physical evidence never matched the report, where the complainant’s account was shaped by intoxication, anger, or a custody dispute, it supports dismissal motions and, at trial, reasonable doubt. What it is never is automatic. The defense must be prepared to try the case against the Commonwealth’s evidence as if the complainant will testify for the prosecution, will be unavailable, and will testify for the defense, because in a domestic violence case any of the three can happen on trial day.

Key Takeaways. A complainant cannot drop a Massachusetts domestic violence charge; the District Attorney controls the case. Recantation does not remove prior statements from the case, and excited utterances can be admitted for their truth. Only valid privileges, marital under M.G.L. c. 233, § 20, or the Fifth Amendment, remove live testimony, and they belong to the witness alone. Any effort by a defendant to encourage silence risks a felony intimidation charge and forfeiture by wrongdoing under Commonwealth v. Edwards, which admits everything the witness ever said. A credible recantation, developed properly by counsel, remains one of the most powerful facts in the defense of the case.

Contact Serpa Law Office at 617.936.0201. Boston office: 20 Park Plaza #400A. Quincy office: 500 Victory Rd., Suite 400A.

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
• Boston Domestic Violence Defense Lawyer