Recantation in a Massachusetts Domestic Violence Case: Why the Case Does Not End When the Complainant Says it Didn’t Happen

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

An alleged victim changes their account 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 they misled the police or that there is no wish to go forward. Defendants hear this and conclude the case is over. It is not. Massachusetts District Attorney’s offices in Suffolk, Norfolk, Middlesex, Essex, and Plymouth generally take a no-drop posture in domestic violence cases, and the Commonwealth, not the complainant, decides whether the prosecution continues. That is how these cases are charged and resolved in Massachusetts. Understanding what recantation does, and does not do, to a case pending in the Boston Municipal Court, the Quincy District Court, or any Massachusetts court is essential to defending it, and the misunderstanding is dangerous, because the single most destructive thing a defendant can do in reliance on a recantation is contact the complainant about it.

Any attempt to encourage or shape a recantation is itself a felony. Our page on intimidation of a witness in Massachusetts explains where the line sits and why the safest route runs through counsel. The questions recantation raises most often, including when pressure becomes a felony, are answered in our witness intimidation FAQs.

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 Charging Decision Belongs to the Commonwealth

A complainant cannot drop charges in Massachusetts. Once an arrest is made or a complaint issues, the case is captioned Commonwealth versus the defendant, and the complainant is a witness, not a party. Prosecutors are trained to expect recantation in domestic cases and to treat it skeptically, sometimes attributing it to reconciliation, financial dependence, or pressure. They build cases from the first night to survive it, assembling the 911 recording, body-worn camera footage, photographs of injuries and the scene, medical records, and the observations and testimony of the responding officers. This is often called evidence-based or victimless prosecution, and a prosecutor holding that proof does not need a cooperative complainant to go forward, and often will. This is why a defense that consists of waiting for the complainant to recant is not a defense at all.

A Recanting Witness Can Still Be the Prosecution’s Witness

If the complainant appears at trial and testifies consistently with the recantation, the Commonwealth may confront its own witness with prior inconsistent statements, the 911 call, the account in the police report, and prior testimony from a 209A hearing or the grand jury. As a general rule those prior statements come in only to impeach, not as substantive proof of what they assert. There is a critical exception that decides many domestic cases. A statement that qualifies as an excited utterance under Massachusetts Guide to Evidence Section 803(2) is admitted for its truth whether or not the witness stands by it at trial, and a prosecution can be built on the 911 call and the on-scene statements alone. The interplay between the excited utterance exception and the Sixth Amendment confrontation right, after Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), which distinguishes testimonial statements from those made to meet an ongoing emergency, is the doctrinal heart of these cases and is treated in detail in our companion post on excited utterances and forfeiture by wrongdoing. The practical point for a defendant is blunt. The words spoken to the 911 dispatcher and the first officer may be evidence against you no matter what the complainant says months later.

Silence Is Governed by Privilege, Not by Recantation

What removes a complainant’s live testimony from a trial is not a changed story but a valid privilege, and there are two that recur. A legally married spouse may decline to testify against the other spouse under the Massachusetts spousal privilege, M.G.L. c. 233, § 20. That privilege belongs to the witness-spouse, covers most testimony in a criminal case, and does not depend on anyone’s willingness to reconcile. A complainant whose own conduct during the incident was arguably criminal, mutual pushing, a thrown object, or a threat of the kind charged under M.G.L. c. 275, § 2, may invoke the Fifth Amendment privilege against self-incrimination, ordinarily after the court’s inquiry and consultation with independent counsel. That same overlap of conduct can support a self-defense or mutual-combat theory for the defendant. These privileges belong to the witness alone. Neither the defendant nor defense counsel may procure, encourage, or engineer their invocation, and that limit is the hinge of this entire subject.

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

Any attempt by a defendant to pressure, coach, induce, or reward a complainant into silence or recantation is itself a felony, intimidation of a witness under M.G.L. c. 268, § 13B, carrying up to ten years in state prison and, in the domestic context, often a fresh arrest and a dangerousness hearing under M.G.L. c. 276, § 58A. A conviction under chapter 268 carries a lasting collateral consequence, because it cannot later be sealed under M.G.L. c. 276, § 100A, which excludes chapter 268 offenses from the ordinary sealing standards. Witness intimidation also has a second consequence that is, if anything, worse for the defense. 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, so the 911 call, the police statement, and the prior testimony all come in for their truth, with no cross-examination and no privilege to stop it. Forfeiture is not automatic, because under Giles v. California, 554 U.S. 353 (2008), the Commonwealth must show that the defendant acted with the specific intent to make the witness unavailable, not merely that their conduct had that effect. The Supreme Judicial Court has applied the doctrine broadly, including in Commonwealth v. Szerlong, 457 Mass. 858 (2010), where the defendant’s marrying the complainant so she could invoke the spousal privilege was itself treated as wrongful procurement triggering forfeiture. Jail calls in domestic cases are recorded and routinely reviewed for exactly this conduct, and a well-meaning message passed through a relative can be enough. The instruction to every client, from the first court date and repeated at arraignment, is absolute. Have no contact about the case, none, direct or indirect, and let counsel do the work.

What a Genuine Recantation Is Worth

Handled correctly, by counsel and never by the defendant, a genuine recantation matters, sometimes decisively. It is powerful impeachment if the complainant testifies for the Commonwealth. It reframes plea negotiations. Where it is credible and corroborated, where the physical evidence never matched the report, where the original account was shaped by intoxication, anger, or a custody dispute, it supports motions to dismiss and, at trial, reasonable doubt. Developed properly, through counsel’s investigation, an affidavit taken by an independent party where appropriate, and cross-examination prepared in advance, it becomes one of the strongest facts a defense can have. What it never is, is automatic. The defense must be prepared to try the case three ways at once, as though the complainant will testify for the prosecution, as though the complainant will be unavailable and the Commonwealth will proceed on excited utterances, and as though the complainant will testify for the defense, because in a domestic violence case any of the three can be true on the morning of trial. That preparation, across the courts of Eastern Massachusetts and for clients ranging from professionals and students to non-citizens for whom any admission carries collateral consequences, is the work. See Boston domestic violence defense and representative outcomes at Massachusetts Criminal Defense Results. Recordings of those conversations are a problem of their own: secretly recording a recanting witness violates the Massachusetts wiretap statute, and playing or sharing the file is a second crime.

Key Takeaways. A complainant cannot drop a Massachusetts domestic violence charge, and the District Attorney controls the case under a no-drop policy. Recantation does not remove prior statements, and excited utterances can be admitted for their truth even if the witness recants, consistent with Crawford and Davis. Only a valid privilege, spousal under M.G.L. c. 233, § 20 or the Fifth Amendment, removes live testimony, and those privileges belong to the witness alone. Any effort by a defendant to encourage silence risks a felony charge under M.G.L. c. 268, § 13B and triggers forfeiture by wrongdoing under Commonwealth v. Edwards, which admits everything the witness ever said. A credible recantation, developed by counsel and never by the client, remains one of the most powerful facts in the defense of a domestic violence case.

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