When the Alleged Victim Will Not Testify in a Massachusetts Domestic Violence Case: Excited Utterances and the Confrontation Clause

Circumstances in Which an Out-of-Court Statement Can Be Used at Trial

A Massachusetts domestic violence case does not automatically end when the complainant recants, declines to testify, or cannot be located. The Commonwealth may try to prove the charge through a 911 recording or an on-scene statement admitted into evidence as a spontaneous utterance under Mass. G. Evid. § 803(2). The statement must also satisfy the Confrontation Clause of the Sixth Amendment.

The judge usually makes two separate inquiries before deciding whether the jury can hear the complainant’s out-of-court words. The statement must satisfy a rule of evidence, such as the spontaneous-utterance exception. The statement must also comply with the defendant’s constitutional right to confrontation.

Satisfying one requirement does not satisfy the other. The judge therefore analyzes the hearsay rule and the Confrontation Clause separately, often statement by statement.

The Spontaneous-Utterance Exception

Massachusetts lawyers have used the terms “excited utterance,” “spontaneous exclamation,” and “spontaneous utterance.” The current Massachusetts Guide to Evidence § 803(2) labels the rule “Excited utterance (spontaneous utterance).”

The exception applies even when the person who made the statement is available to testify. The rationale of the exception is that a sufficiently startling event can suspend ordinary reflective thought, making the statement a spontaneous reaction rather than a considered account.

The Supreme Judicial Court has declined to abandon the exception. The application of the exception remains fact-specific. A judge does not admit a statement into evidence merely because a witness, police officer, or report describes the statement as “excited.”

The Two Requirements Under Section 803(2)

The proponent must establish the following two requirements.

1. An occurrence or event was sufficiently startling to render the observer’s normal reflective thought processes inoperative.
2. The declarant’s statement was a spontaneous reaction to that event, not the product of reflective thought.

The judge considers the complete circumstances. Relevant facts include the time and place of the statement, the speaker’s age and condition, visible emotion or injury, the nature of the event, and whether the speaker had time or reason to formulate an account.

The statement itself may help prove that the startling event occurred. A qualifying speaker can be the person directly involved, a child, a neighbor, or another witness who perceived the event.

That two-element test comes from Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). The Commonwealth bears the burden of establishing each element. The judge decides whether the Commonwealth has met that burden before the jury hears the statement.

There Is No Fixed Time Limit

A statement does not qualify simply because it was made quickly, and it does not fail solely because time passed. The question is whether the speaker remained under the stress of the event when the statement was made.

A short interval may support spontaneity. A longer interval may allow reflection, but later events can renew the speaker’s fear or stress.

In Commonwealth v. Nunez Severino, 105 Mass. App. Ct. 170 (2025), the Appeals Court upheld admission of a 911 caller’s statements about an hour after a shooting. The caller remained in fear, and the shooter’s return had renewed the emergency.

The lapse of time between the startling event and the statement is not an independent requirement. The nexus between the statement and the event that produced it is also not an independent requirement. The judge considers the lapse of time and the nexus as two of several factors bearing on whether the statement was a spontaneous reaction rather than the product of reflective thought. Commonwealth v. Santiago, 437 Mass. 620 (2002).

The trial judge has discretion to decide whether to admit the statement into evidence. A reviewing court will not disturb the trial judge’s decision absent a clear case of improper exercise of that discretion. The parties therefore litigate the admissibility of the statement on the facts of the response. The judge decides admissibility on the record made at the motion hearing.

Answers to Questions Can Still Be Spontaneous

A response to a question can still be spontaneous. The court examines the nature of the questioning, its duration, the speaker’s condition, and whether the answers show reflection.

Brief questions needed to understand an unfolding emergency are different from a structured interview about completed events. The same conversation may begin with spontaneous answers and later become a deliberate narrative.

911 Calls, Text Messages, and Written Statements

A 911 call can qualify, but the court must examine the actual recording. The caller’s tone and repetition can show excitement as plainly as the words in the transcript. The court may also consider the caller’s pauses, answers, and description of present danger.

A text message or other writing can also qualify. Writing usually permits more reflection than speech, so the circumstances must provide especially persuasive evidence that the message was spontaneous.

A delayed written statement or composed account is less likely to satisfy the exception. A later police affidavit, hospital interview, or detailed chronology must be analyzed on its own facts and under any other evidentiary rule the proponent invokes.

Each level of hearsay needs an independent basis for admission when a 911 caller repeats what someone else said.

The Judge’s Voir Dire

The judge should conduct a careful voir dire when the Commonwealth offers a spontaneous utterance from a person who will not be a trial witness. The voir dire occurs outside the jury’s presence.

The judge may hear testimony and review the recording, body-camera footage, dispatch information, or other evidence bearing on the foundation. The court then decides whether the statement satisfies Section 803(2).

The defense can test the timing, questioning, demeanor, source of knowledge, and circumstances that may show reflection. Defense counsel should object to each particular statement at issue rather than to an entire call or interview as a single unit.

The Confrontation Clause Is a Separate Test

In a criminal case, the Sixth Amendment and article 12 of the Massachusetts Declaration of Rights restrict testimonial hearsay offered against the accused. A testimonial statement from an absent witness is generally inadmissible unless the witness is unavailable and the defendant previously had an adequate opportunity to cross-examine that witness.

The central question is the statement’s primary purpose. Under the current Massachusetts framework, a statement is testimonial when its primary purpose is to create an out-of-court substitute for trial testimony. That purpose must be directed toward use in court.

The test is objective. The judge considers the purpose a reasonable person would assign to the statement in light of the surrounding circumstances, not merely what the speaker or officer later says was intended.

Crawford v. Washington, 541 U.S. 36 (2004), bars the admission of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford abrogated the reliability approach of Ohio v. Roberts, 448 U.S. 56 (1980). Reliability alone no longer satisfies the Confrontation Clause. Admissibility under the Confrontation Clause depends on whether the statement is testimonial.

Ongoing Emergency or Investigation of Past Events?

A statement made to obtain help during an ongoing emergency is generally nontestimonial. A statement made after the danger has ended, primarily to establish past facts for prosecution, is more likely testimonial.

The judge may consider whether the alleged assailant remained nearby, whether a weapon was involved, whether anyone needed medical care, what information responders needed, and how formal the questioning had become.

The purpose of the statements can change during a single call. Early statements may address present danger, while later questions may develop evidence about a completed incident.

Massachusetts cases illustrate the difference between an ongoing emergency and an investigation of past events. In Commonwealth v. Hart, 493 Mass. 130 (2023), a gravely injured person’s statements during an ongoing emergency were nontestimonial. In Commonwealth v. Brum, 492 Mass. 581 (2023), a stabbing victim’s request for aid and identification of the assailant were also treated as nontestimonial.

Davis v. Washington, 547 U.S. 813, 822 (2006), established the primary purpose test. Statements made when the primary purpose is to enable police assistance in an ongoing emergency are non-testimonial. Statements are testimonial when the circumstances objectively indicate no ongoing emergency and a primary purpose of proving past events for later prosecution.

Michigan v. Bryant, 562 U.S. 344 (2011), extended the test to include the threat posed to responding officers and the public, not only to the complainant. In Massachusetts, the Supreme Judicial Court has held that the ongoing emergency in a domestic violence case continues until police have arrived and secured the scene, or until the assailant has left, even if the assailant is not armed. Commonwealth v. Beatrice, 460 Mass. 255 (2011).

The assessment of the emergency is objective and made without hindsight. The trial judge decides, on the specific facts of each case, the exact point at which an emergency arises and dissipates. Commonwealth v. Middlemiss, 465 Mass. 627, 634 (2013). The controlling Massachusetts analysis is the primary purpose test. Statements made in response to police interrogation are not testimonial per se, although they qualify as testimonial in many cases. Commonwealth v. Wardsworth, 482 Mass. 454, 464 n.18 (2019), clarifying Commonwealth v. Gonsalves, 445 Mass. 1 (2005).

The 911 Call and the Later Police Interview May Differ

A call made while violence is occurring may satisfy both Section 803(2) and the confrontation rule. The same speaker’s later account to an officer can present a different question once the scene is secure.

There is no automatic rule that every 911 statement is admissible or every on-scene statement is testimonial. The court must assess the purpose and circumstances of the particular words offered.

Defense counsel should review the recording, body-camera footage, report, and dispatch timeline together because the 911 call and the later police interview may differ. A transcript alone may omit tone, overlap, delay, or changes in the emergency.

Body-Camera Footage When the Alleged Victim Does Not Testify

The Commonwealth can use body-camera footage of the alleged victim’s statements even though the alleged victim does not testify, but only where the statements satisfy both the hearsay rule and the Confrontation Clause. The judge applies the same two tests to a statement on video as to a 911 call. The first question is whether the statement qualifies as a spontaneous utterance under Section 803(2). The second question is whether the statement is testimonial.

The officer’s own observations are separate evidence. The officer can describe the scene, the injuries, and the alleged victim’s demeanor from the witness stand, whether or not the judge admits the recording into evidence.

The footage often helps the defense on both tests. The footage shows how much time passed between the event and the statement, and whether the alleged victim was still under the stress of the event or had grown calm. The recording also shows how many questions the officer asked and how the answers came.

In Commonwealth v. Rodriguez, 90 Mass. App. Ct. 315 (2016), an officer arrived at the home within five to ten minutes of the dispatch. The officer found the alleged victim crying, disheveled, and trembling, with a torn shirt and visible bruises. The judge admitted the statements into evidence as spontaneous utterances. The Appeals Court agreed that the statements were spontaneous utterances.

The Appeals Court held that the statements were testimonial. The defendant had left, the statements described only past events, and the officer did not need them to handle an ongoing emergency.

The Appeals Court held the statements admissible anyway. The alleged victim was unavailable at trial because she had invoked her privilege against self-incrimination. She had testified at the earlier dangerousness hearing under G.L. c. 276, § 58A, and counsel had cross-examined her there. That earlier cross-examination satisfied the Confrontation Clause. The Commonwealth may offer at trial the statements of an alleged victim who is unavailable to testify, if defense counsel had an adequate opportunity to cross-examine the alleged victim at a dangerousness hearing.

Forfeiture by Wrongdoing

Forfeiture by wrongdoing can permit the Commonwealth to use a witness’s statements when the defendant intentionally helped make that witness unavailable. The current rule appears in Massachusetts Guide to Evidence § 804(b)(6).

The Commonwealth must prove the following three facts by a preponderance of the evidence.

1. The witness is unavailable.
2. The defendant was involved in, or responsible for, procuring the unavailability.
3. The defendant acted with the intent to procure the witness’s unavailability.

The doctrine does not apply merely because the complainant independently decides not to testify. The defendant must have contributed to that result in a legally significant way and must have intended the unavailability.

The conduct need not be violent or separately criminal. Persuasion, pressure, collusion, assistance, or conduct designed to make a privilege available can qualify when the required intent and causal connection are proved.

After an evidentiary hearing, the judge decides whether the defendant has forfeited the confrontation and hearsay objections and should make findings on the record or in writing. Due process still requires that the hearsay be sufficiently reliable even when confrontation and hearsay objections are forfeited.

A defendant should not contact a complainant about testimony or cooperation. Such contact can also support a separate witness-intimidation charge or a new charge for violating the no-contact terms of a 209A restraining order.

Massachusetts adopted the doctrine in Commonwealth v. Edwards, 444 Mass. 526 (2005). Under Edwards, the judge must find that the witness is unavailable, that the defendant was involved in or responsible for procuring the unavailability, and that the defendant acted with the intent to procure the unavailability. Edwards, 444 Mass. at 540. The Commonwealth must prove forfeiture by a preponderance of the evidence. The defendant’s conduct need not be a crime.

The intent requirement comes from Edwards. Under Giles v. California, 554 U.S. 353 (2008), forfeiture of the Sixth Amendment confrontation right requires the same intent. Proof that the defendant caused the unavailability is not enough. The defendant must have engaged in conduct designed to prevent the witness from testifying. In Commonwealth v. Szerlong, 457 Mass. 858 (2010), a defendant who married the complainant so that she could invoke the spousal privilege forfeited his objections, because making her unavailable was a purpose of the marriage.

The defense can still challenge the hearsay after the judge makes a forfeiture finding. Due process requires that hearsay admitted into evidence after forfeiture be reliable. The indicia of reliability must be substantial where the Commonwealth offers the hearsay as the only evidence against the defendant. Szerlong, 457 Mass. at 866; Commonwealth v. Valentin, 91 Mass. App. Ct. 515 (2017).

Impeaching an Absent Declarant Under Section 806

The credibility of a hearsay declarant may still be challenged. Under Massachusetts Guide to Evidence § 806, the declarant may be impeached with evidence that would be admissible if that person had testified.

The court may admit into evidence the declarant’s inconsistent statement or conduct regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. A later recantation, contradiction, or material omission can therefore become relevant after the judge admits the original statement into evidence.

Other impeachment remains subject to the ordinary rules of evidence. Bias, motive, prior convictions, and reputation evidence each have their own limits and foundation requirements.

A later statement does not become substantive evidence merely because Section 806 applies. The judge may limit the use of the later statement to credibility unless another rule permits substantive use.

Impeachment Is Available as If the Declarant Had Testified

The governing principle is equality of treatment. In Commonwealth v. Mahar, 430 Mass. 643, 649 (2000), the Supreme Judicial Court accepted the principles of proposed rule 806. Testimony admitted into evidence through a hearsay exception should be open to the same impeachment by prior inconsistent statements or other evidence as the testimony of a live witness.

The court explained that the fact finder is given a distorted and incomplete view of the evidence when hearsay testimony is not open to the same impeachment as live testimony. The court also saw no reason to put the proponent of an absent witness in a better position than the proponent of a live witness.

Defense counsel may therefore use the material that counsel would have used on cross-examination if the complainant had taken the stand. Prior inconsistent statements, conduct inconsistent with the account, bias, motive to fabricate, and the ordinary means of contradiction are all available on the terms that would have applied if the complainant had testified.

Impeachment of an absent declarant is easier in one respect than impeachment of a live witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the hearsay statement, is not subject to any requirement that the declarant have been afforded an opportunity to deny or explain it. Mahar, 430 Mass. at 649. Counsel need not confront the absent declarant with the inconsistency first.

The defense can also challenge the accuracy of the spontaneous utterance itself. In Commonwealth v. Moquette, 439 Mass. 697 (2003), the Supreme Judicial Court identified three questions the defense may raise about a spontaneous utterance. The first is whether the words ascribed to the declarant at trial were what the declarant said. The second is whether the witness reporting the words misunderstood or misremembered the remark in the excitement of the moment. The third is whether the excitement surrounding the event rendered the declarant’s own observations confused or inaccurate.

The defense faces two limits. The judge keeps the authority to exclude or limit impeachment evidence on the same grounds that would apply if the declarant had taken the stand. Mahar, 430 Mass. at 649.

In addition, a spontaneous utterance is sufficient by itself to support a conviction, even where the declarant later contradicts it, because the jury decides what weight to give the evidence. Moquette, 439 Mass. at 702. Defense counsel therefore designs the cross-examination to give the jury a reason to discount the statement, not to win the case as a matter of law.

An Alleged Victim Who Says the Police Report Is Wrong or That They Lied

The Commonwealth can proceed even where the alleged victim comes to court and says the police report is wrong, or that the account given at the scene was false. The prosecutor offers the earlier statement through the officer who heard it. The jury then decides which version to believe.

The Supreme Judicial Court settled the sufficiency question in Commonwealth v. Moquette, 439 Mass. 697 (2003). A spontaneous utterance is sufficient, by itself, to support a conviction. The court declined to require corroboration for that exception.

The jury gives the later recantation whatever weight it deserves. The court held that jurors may credit what the alleged victim said in the moment over what the same person says later in the courtroom.

The two recantations differ in substance. An alleged victim who says the officer wrote it down wrong challenges the accuracy of the report, but an alleged victim who says the first account was false challenges that account itself. In either situation, the judge admits the earlier statement into evidence if the statement qualifies. The jury then weighs the earlier statement against the alleged victim’s testimony at trial.

Counsel challenges the weight of the earlier statement by bringing out what the alleged victim says at trial, the circumstances of the first account, and everything in the recording that is inconsistent with the foundation of the earlier statement.

Cross-Examining the Officer Who Heard the Statement

An officer who arrived later usually did not see the underlying event. The officer can testify to personal observations and, if the judge admits the statement into evidence, describe what was heard.

Cross-examination can address the time line, the questions asked, the speaker’s demeanor, inconsistent words, omissions from the report, and differences between the written report and recorded evidence.

Cross-examination of the officer does not replace the constitutional right to confront a testimonial declarant. Counsel may use the cross-examination of the officer to test the officer’s account and the evidentiary foundation. The judge decides separately, under the Confrontation Clause, whether the absent person’s words may be used.

The firm’s article on cross-examining an absent accuser under Section 806 addresses the trial sequence in greater detail.

Photographs, Medical Records, and Other Evidence

Excluding one statement does not necessarily end the case. The Commonwealth may offer photographs, medical records, messages, or recordings. The Commonwealth may also rely on physical evidence, admissions, or testimony from another witness.

Each category has its own foundation. A photograph must be authenticated. Medical records must satisfy the governing statutes. Statements within those records also require a separate analysis of purpose, hearsay, and confrontation.

The defense should examine each item rather than treating the police and medical files as a single admissible package.

How the Issue Is Litigated

The defense first identifies every out-of-court statement the Commonwealth may offer. That review includes 911 recordings, body-camera audio, police interviews, and text messages. The review also includes medical statements, affidavits, and statements made in a related 209A restraining order proceeding.

A motion in limine can ask the judge to exclude statements that fail Section 803(2) or the Confrontation Clause. The defense can request an evidentiary hearing and findings on each required element if the Commonwealth alleges forfeiture.

At trial, counsel preserves objections to the particular statements offered. Counsel must have Section 806 impeachment and other admissible contradictory evidence ready if the judge admits a statement into evidence.

Recantation, Refusal to Testify, and Related Cases

A complainant may change an account or decline to testify for many reasons. The prosecutor, not the complainant, decides whether the criminal case continues.

The practical consequences of a recantation are explained in the firm’s article on recantation in a Massachusetts domestic violence case. Short answers appear in the excited-utterance and recanting-accuser FAQs.

A companion article addresses the Confrontation Clause and forfeiture by wrongdoing. Those resources apply frequently to assault and battery on a family or household member, strangulation or suffocation, and threats to commit a crime. Those resources also apply to alleged violations of 209A restraining orders or 258E harassment prevention orders.

Two rules govern the effect of a recantation. A spontaneous utterance is sufficient by itself to support a conviction, even where the declarant later contradicts it, because the jury decides what weight to give the evidence. Commonwealth v. Moquette, 439 Mass. 697, 702 (2003).

The marital privilege is narrower than families expect. General Laws c. 233, § 20 contains two distinct protections. Section 20, First disqualifies a spouse from testifying to the contents of a private marital conversation. The Section 20, First disqualification is a rule of competency rather than a privilege. Neither spouse can waive the disqualification, and later disclosure to a third person does not remove the disqualification. Gallagher v. Goldstein, 402 Mass. 457 (1988); Commonwealth v. Garcia, 476 Mass. 822 (2017).

Section 20, Second gives the witness spouse a privilege not to be compelled to testify against the other spouse. That privilege belongs to the witness spouse rather than the defendant. The privilege applies only to live testimony. The privilege does not exclude the complainant’s out-of-court statements. The admission of those statements at trial therefore depends on the spontaneous utterance and forfeiture doctrines.

How Attorney Serpa Approaches These Cases

Attorney Serpa reviews the original recordings rather than relying only on a police summary. He considers when each statement was made, whether any emergency had ended, the speaker’s condition, and later inconsistent accounts before deciding which motions to file and how to prepare for trial.

Serpa Law Office defends Massachusetts domestic violence cases in the Boston Municipal Court and District Courts throughout the Commonwealth. For a confidential consultation, call 617.936.0201.

Related Evidence and Defense Resources

• Recantation in Massachusetts Domestic Violence Cases
• Cross-Examining an Absent Accuser Under Section 806
• The Confrontation Clause and Forfeiture by Wrongdoing
• Excited-Utterance and Recanting-Accuser FAQs
• Intimidation of a Witness
• Massachusetts 209A Restraining Orders (Abuse Prevention Orders)

A person who has been falsely accused should read the firm’s page on defending a false accusation of domestic violence in Massachusetts, which explains how counsel proves bias and motive.