Secret Recordings in Massachusetts Domestic Violence and 209A Cases

A recording made during a domestic dispute arrives in court more often than any other kind. Someone records an argument, a threat, or a later apology, and brings the file to a restraining order hearing or hands it to a police officer, expecting it to settle the matter. It frequently does something else. This post addresses what happens to that recording, and to the person holding it, in the specific setting of a Massachusetts domestic violence case and the abuse prevention and harassment prevention sessions that accompany it.

The statute itself, G.L. c. 272, § 99, is treated in full on the secret recordings and the Massachusetts wiretap statute page, including the elements, the penalties, the law enforcement exception, and the suppression rules. What follows assumes that framework.

Why This Setting Produces the Problem

Three features of a domestic case combine to produce recordings that create exposure for the person who made them.

The parties live or lived together, so conversations occur in private settings where no one announces anything. The dispute is continuing, so one side has both motive and opportunity to document the other. And the civil order session moves quickly, often within days, which rewards whoever arrives with something concrete.

The result is a recording made in a home, without the other person’s knowledge, offered by the person who made it. Under § 99 that is an interception, and offering it is a separate act.

What Happens at the 209A or 258E Hearing

A hearing under c. 209A or c. 258E is a civil proceeding and is not bound by the strict rules of evidence. The Supreme Judicial Court has held that “the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on.” Frizado v. Frizado, 420 Mass. 592 (1995). A judge therefore has discretion to listen to a recording that would draw sustained objections at a criminal trial, and the suppression remedy in § 99 P by its terms belongs to a defendant in a criminal trial.

Two further holdings in Frizado bear directly on how a recording is met. The plaintiff must prove the case for relief by a preponderance of the evidence, so a recording that does not establish the statutory grounds does not establish the order simply because the judge listened to it. And a defendant has a general right to cross-examine the witnesses against him, subject to the judge’s discretion to limit it for good cause. Where a recording is offered, that right is the mechanism for establishing what the recording leaves out.

The questions that matter at that hearing are ordinary evidentiary questions asked informally. Who made the recording, and on what device. When it starts, and what preceded it. Whether it is complete or an excerpt. Whether it has been edited, trimmed, or re-saved. Whether the voices can be identified. Whether the file offered is the original or a copy forwarded through a messaging application, which strips the metadata that would answer several of those questions.

The Consequence for the Person Who Offers It

Playing a secretly made recording in open court, or providing it to a police officer, is a disclosure or use of an unlawful interception under G.L. c. 272, § 99 C 3. The statute classifies that offense as a misdemeanor punishable by up to two years in a jail or house of correction, a fine of up to $5,000, or both. Making the recording is the more serious offense, punishable under § 99 C 1 by up to five years in state prison.

The civil action under § 99 Q follows the same conduct, and provides actual damages but not less than liquidated damages of $100 per day of violation or $1,000, whichever is higher, together with punitive damages and attorney’s fees.

This exposure is not limited to one side. It runs against whoever made and used the recording, which in these cases is as often the party seeking the order as the party opposing it.

Whether the Recording Can Still Be Used Against a Defendant

A defendant who learns that the other party recorded him unlawfully often assumes the recording is therefore unusable. In a criminal case that assumption is frequently wrong.

Where a private person made the recording and no police or governmental conduct was involved, the Supreme Judicial Court has held that suppression serves no deterrent purpose. Commonwealth v. Santoro, 406 Mass. 421 (1990); Commonwealth v. Rivera, 445 Mass. 119 (2005). The defendant has standing to move under § 99 P, and the Court has described the balance as one the Legislature left to the courts to strike in each case, but the absence of government involvement is ordinarily decisive.

The analysis changes where police participated in the interception, and it changes again where the surveillance occurred inside a home. Warrantless electronic surveillance of conversations in a private home violates art. 14 of the Massachusetts Declaration of Rights, and the resulting recording may not be used for any purpose, including impeachment. Commonwealth v. Fini, 403 Mass. 567 (1988). A participant in the conversation may nonetheless testify from memory.

Testimony About the Recording Affects the Criminal Case

The most common way a restraining order hearing damages a related criminal case is not the recording itself. It is the testimony given about it.

A party who describes making the recording has described conduct that may itself be an offense. A party who describes what the recording contains has given sworn testimony that can be compared against later testimony at a criminal trial. And a defendant who testifies at the civil hearing to explain a recording has testified under oath before the criminal case is developed, without the protections that attach at a criminal trial. The relationship between silence and testimony in that setting is addressed on the Fifth Amendment at the 209A hearing page.

Using a Recording to Pressure a Witness

Playing a recording for a reluctant witness, or threatening to release one, can support a charge of intimidation of a witness under G.L. c. 268, § 13B, for which the maximum sentence is substantially longer than for either wiretap offense. That statute covers conduct directed at a witness or potential witness that is intended, or made with reckless disregard, to impede an investigation or proceeding. A recording used as leverage in a domestic case is a recurring fact pattern in these prosecutions.

What to Do With a Recording That Already Exists

Do not send it, play it, or attach it to an affidavit before counsel has reviewed it. The recording may be admissible against the other party, useless, or evidence of an offense by the person holding it, and often it is more than one of those at once.

Bring the original file rather than a forwarded copy, along with the device it was made on if that is possible, because the metadata answers questions that argument cannot. Note the date, the setting, who was present, and whether anything was said about recording. Whether the other person knew is the element on which the analysis turns, and small facts decide it.

There is usually a lawful route to the same conclusion. Testimony, messages, medical records, police reports, and the other side’s own filings prove what the recording was meant to prove, without converting the person holding the phone into a defendant.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and defends both wiretap charges and the underlying domestic violence cases in which these recordings appear. Serpa Law Office can be reached at 617.936.0201 for a free and confidential consultation. The Boston office is at 20 Park Plaza #400A. The Quincy office is at 25 Braintree Hill Office Park Suite 200A. See also defending 209A and 258E violations and the Massachusetts wiretap and secret recording FAQs.