When a Massachusetts Domestic Violence Case Goes to Trial Even Though the Alleged Victim Recants or Refuses to Testify: Excited Utterances and Spontaneous Utterances

A Massachusetts domestic violence case can reach trial even when the alleged victim recants, refuses to testify, or cannot be found. The Commonwealth, not the accuser, controls the prosecution, and it can try to prove the charge through the 911 recording and through the officer who repeats what the accuser said at the scene. Whether those out-of-court words reach the jury turns on two bodies of law: the spontaneous utterance exception to the rule against hearsay, long known as the excited utterance exception, and the Confrontation Clause. This page explains when such a case goes forward, when it does not, and the tool that Section 806 of the Massachusetts Guide to Evidence gives the defense once such a statement is admitted. It is current as of the most recent decisions of the Supreme Judicial Court and the Appeals Court, because this area of the law continues to develop.

The stakes are practical. When the exception applies and the statement is not barred by confrontation principles, a case can proceed on the accuser’s recorded words even though that person never takes the stand. When the exception does not apply, or the statement is testimonial and no exception to confrontation is shown, the same words are excluded and the prosecution can collapse. The analysis is technical, and it is litigated before trial and at trial through motions, a voir dire hearing, and cross-examination.

The Spontaneous Utterance Exception

The exception appears in Section 803(2) of the Massachusetts Guide to Evidence. Courts and lawyers have called it by several names, including spontaneous exclamation, spontaneous utterance, and excited utterance, and the Supreme Judicial Court has stated that it will use the term spontaneous utterance. Commonwealth v. Hart, 493 Mass. 130 (2023); Commonwealth v. Gonsalves, 445 Mass. 1, 4 n.1 (2005). The premise of the exception is a theory about reliability. A person seized by the stress of a startling event is thought to speak reflexively rather than deliberately, and a statement made in that condition is treated as carrying less risk of contrivance than a considered account given later.

The Supreme Judicial Court has recently reaffirmed the exception against the argument that current understanding of memory and deception should end it, declining to abandon the rule. Commonwealth v. Imbert, 479 Mass. 575 (2018). The exception is therefore settled, but its application is fact-specific, and each statement the Commonwealth offers is tested on its own circumstances rather than admitted on its label.

The Two Requirements the Statement Must Meet

The proponent of the statement must show two things. There must be an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and the declarant’s statement must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought. Commonwealth v. Barbosa, 477 Mass. 658, 672-673 (2017); Commonwealth v. Santiago, 437 Mass. 620, 623 (2002); Mass. G. Evid. § 803(2). The judge weighs the surrounding circumstances, including the place, the timing, the degree of excitement, and the age and condition of the declarant. Commonwealth v. Baldwin, 476 Mass. 1041, 1042 (2017). A visible emotional state or physical distress can support a finding that the speaker was still reacting to the event rather than describing it from a distance. Commonwealth v. Barbosa, 477 Mass. 658 (2017).

The Startling Event and Who May Speak

The event must be one that would still the ordinary processes of reflection, and a jury may treat the statement itself as proof that the event occurred. Commonwealth v. Nunes, 430 Mass. 1, 4 (1999); Commonwealth v. King, 436 Mass. 252, 255 (2002). A person who witnessed the event but did not take part in it may still make a qualifying statement, because the exception reaches a startled bystander as well as a participant. Commonwealth v. Harbin, 435 Mass. 654, 657-658 (2002). In a domestic violence case the declarant is usually the person who reports the assault, but the exception can also reach a child, a neighbor, or another witness who was present, and each such statement is examined against the same two requirements.

Time, Questioning, and the Form of the Statement

There is no fixed time limit between the event and the statement. Commonwealth v. McLaughlin, 364 Mass. 211, 221-222 (1973). What matters is whether the stress of the event still controlled the declarant when the words were spoken, so a longer interval makes the spontaneity harder to establish and a shorter interval easier. A statement made in answer to a question can still qualify, because a question does not by itself convert a spontaneous reaction into a reflective account. Commonwealth v. Simon, 456 Mass. 280, 296 (2010). The Appeals Court has recently treated a 911 call as a spontaneous utterance even when it was made about an hour after the startling event, where the caller was still under the stress of that event and in fear of the person involved. Commonwealth v. Nunez Severino, No. 24-P-1211 (Mass. App. Ct. Oct. 15, 2025).

The form of the statement matters as well. A recorded 911 call can qualify, and it may carry information the caller learned from another person whose own statement also meets the exception. Commonwealth v. Alcantara, 471 Mass. 550, 558-559 (2015). Even a text message has been treated as a spontaneous utterance in the right circumstances. Commonwealth v. Mulgrave, 472 Mass. 170, 176 (2015). Each of these forms is examined against the same two requirements rather than admitted on its label.

Written Statements and Later Accounts

The further a statement moves from the moment of stress, and the more it takes the form of a composed account, the weaker the claim of spontaneity. A written statement requires heightened indicia of reliability before it will be admitted as a spontaneous utterance, because writing ordinarily involves reflection, and the Supreme Judicial Court has held a statement inadmissible where it was made at least eight and one half hours after the event. Commonwealth v. DiMonte, 427 Mass. 233, 239 (1998). A structured interview conducted well after the event can fail the test entirely. Statements made during a sexual assault nurse examiner interview have been held to lack the required spontaneity. Commonwealth v. McCoy, 456 Mass. 838, 849 (2010). These limits matter in domestic violence cases, where the Commonwealth may seek to admit not only the first cry for help but also a later, fuller narrative given after the emergency had passed.

The Voir Dire Before the Statement Is Admitted

Because the exception admits the words of a person who does not testify at trial, the trial judge is directed to conduct a careful voir dire before allowing the spontaneous utterance of a non-testifying declarant in a criminal case. Commonwealth v. Hurley, 455 Mass. 53, 68 n.14 (2009). The voir dire is a hearing held outside the presence of the jury, and it is where the judge decides, statement by statement, whether the two requirements of Section 803(2) are met. That hearing is the first place the defense contests admission. The officer who heard the statement is examined on the interval between the event and the words, on whether the account came only after a sequence of questions, and on the demeanor that undercuts a claim of continuing stress. A statement excluded at the voir dire never reaches the jury.

The Confrontation Clause After Crawford

Satisfying the hearsay exception is only half of the question. The Sixth Amendment and article 12 of the Massachusetts Declaration of Rights give the accused the right to confront the witnesses against them. A statement admissible as a spontaneous utterance must also satisfy the Confrontation Clause, which bars the admission of a testimonial out-of-court statement by a witness who does not appear at trial unless the witness is unavailable and the defendant had an earlier opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36 (2004); Commonwealth v. Mulgrave, 472 Mass. 170, 176 (2015). Massachusetts applies that rule and reads its own confrontation right to be at least as protective. Commonwealth v. Gonsalves, 445 Mass. 1 (2005). A statement can therefore be a valid spontaneous utterance and still be excluded because it is testimonial, so the two questions are answered separately.

Testimonial and Nontestimonial Statements

A statement is testimonial where its primary purpose is creating an out-of-court substitute for trial testimony. Michigan v. Bryant, 562 U.S. 344 (2011); Commonwealth v. Imbert, 479 Mass. 575 (2018). Statements are nontestimonial when the circumstances objectively indicate that the primary purpose is to enable police to meet an ongoing emergency, and testimonial when there is no ongoing emergency and the primary purpose is to establish or prove past events for a later prosecution. Davis v. Washington, 547 U.S. 813 (2006). That decision and its companion case drew the line in the domestic violence setting. A 911 caller describing an assault as it happened, seeking protection from a present danger, was giving nontestimonial statements that could be admitted. In the companion case, statements a person gave to officers at the home after the violence had ended, in answer to questions about what had happened, were testimonial and barred.

The 911 Call and the On-Scene Statement

The practical result in a domestic violence case is a split record. The frantic 911 call often survives as a nontestimonial spontaneous utterance. The account the same person gives to the responding officer minutes later, once the scene is secure and the officer is asking what happened, is frequently testimonial, and it cannot come in through the officer unless the declarant testifies or the Commonwealth proves an exception. The defense sorts the recording and the report into these categories, statement by statement, rather than accepting that everything the accuser said is a single admissible block.

When the Emergency Is Ongoing

The existence and scope of an ongoing emergency is judged objectively from all of the circumstances rather than from the label a party attaches to it. Michigan v. Bryant, 562 U.S. 344 (2011). Among the circumstances the courts weigh are whether a weapon was present, whether the assailant remained at large, whether the declarant was injured and in need of aid, the location and the formality of the questioning, and whether the danger was still live or had passed. The same conversation can shift from nontestimonial to testimonial as the emergency ends, so a call that begins as a plea for help while a fight is in progress may include later statements, given after the police have arrived and secured the scene, that are testimonial. Recent decisions continue to apply this line, treating statements made by a person still seeking aid as nontestimonial. Commonwealth v. Hart, 493 Mass. 130 (2023). The defense parses the recording for the point at which the emergency ended.

Forfeiture by Wrongdoing

The Commonwealth has one route around the confrontation bar. Under the doctrine of forfeiture by wrongdoing, a defendant is deemed to have lost the right to object, on both confrontation and hearsay grounds, to the out-of-court statements of a witness whose unavailability the defendant has played a meaningful role in procuring. Commonwealth v. Edwards, 444 Mass. 526 (2005). To establish forfeiture, the Commonwealth must prove, by a preponderance of the evidence, 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 it. Commonwealth v. Edwards, 444 Mass. 526, 540, 542 (2005).

The intent element is decisive and is often where the doctrine fails. It is not enough that the defendant knew the conduct might keep the witness away. The defendant must have intended that result. Giles v. California, 554 U.S. 353 (2008). The wrongdoing is the intentional act of making the witness unavailable to testify or helping the witness become unavailable, and it need not involve threats or violence. Commonwealth v. Szerlong, 457 Mass. 858, 861 (2010). The Supreme Judicial Court found forfeiture where a defendant married the complaining witness for the purpose of allowing that witness to invoke the spousal privilege, holding that preventing the testimony need only be a partial purpose of the act. Commonwealth v. Szerlong, 457 Mass. 858, 864 (2010). The Appeals Court has applied the doctrine where a defendant used calls from jail, personally and through a family member, to persuade the complainant not to cooperate, after which the complainant invoked the privilege against self-incrimination. Commonwealth v. Valentin, 91 Mass. App. Ct. 515, 520 (2017).

Two limits protect the defense. A statement admitted under forfeiture must still carry sufficient indicia of reliability. Commonwealth v. Szerlong, 457 Mass. 858, 866 (2010). And a defendant who had no intent to procure the absence, and who did nothing to bring it about, does not forfeit the confrontation right merely because the accuser chose on their own not to appear. The contest over forfeiture is a contest over the intent element on the facts.

Impeaching the Absent Declarant Under Section 806

When an out-of-court statement is admitted, the person who made it becomes a witness in substance even though that person never took the stand, and the law recognizes that. Section 806 of the Massachusetts Guide to Evidence provides that when a hearsay statement has been admitted, the declarant’s credibility may be attacked, and later supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. Mass. G. Evid. § 806; Commonwealth v. Mahar, 430 Mass. 643, 649 (2000).

Section 806 removes a foundation requirement that usually protects a live witness. The court may admit evidence of the declarant’s inconsistent statement or conduct regardless of when it occurred and regardless of whether the declarant ever had a chance to explain or deny it. That provision is powerful in a recantation case. When the accuser told the 911 operator one thing and later swore to a different account, or signed an affidavit asking that the case be dropped, that later inconsistent statement is admissible to impeach the admitted utterance even though the accuser is not present to be confronted with it. The Supreme Judicial Court has enforced this principle, holding that a prior statement of an absent declarant was improperly excluded when offered to impeach that declarant’s admitted account. Commonwealth v. Gray, 463 Mass. 731, 748 & n.17 (2012).

The reach of Section 806 is the full range of impeachment. The defense may show the declarant’s bias and motive to fabricate, may prove a prior inconsistent statement or a revealing omission, and may offer a prior conviction within the limits the statute sets, all against a person who is not in the courtroom. G.L. c. 233, § 21. In a domestic violence case the recantation, the pending divorce or custody dispute, and any immigration benefit that turns on the accusation are the material of that examination. Where the accuser does testify and is impeached with a prior inconsistent statement, the resulting conflict goes to the weight the jury gives the account rather than to its admission. Commonwealth v. Rivera, 482 Mass. 259 (2019). Section 806 opens the door to that impeachment once the Commonwealth chooses to put the accuser’s words before the jury.

Cross-Examining the Officer Who Repeats the Statement

When the accuser does not testify, the Commonwealth’s witness is usually the officer who heard the statement, and that officer is examined on everything the exception and the recording leave open. The officer did not witness the underlying event and knows only what the accuser reported. The officer can be questioned on how much time had passed, on whether the words came in answer to a series of questions rather than as a spontaneous cry, and on the calm or composed manner that undercuts the claim of stress. Each of those points bears on whether the statement was spontaneous under Section 803(2) and on whether it was testimonial under the primary-purpose test.

The record the officer created is examined the same way. A report that captured only the words that pointed toward guilt, and omitted the accuser’s later hesitation or contradiction, is a partial record, and the body camera, the cruiser recording, and the booking video often show a scene different from the one the report describes. The officer is also the person through whom the accuser’s inconsistencies reach the jury under Section 806, so the same examination that tests the foundation for the statement also lays out the recantation and the motive. The discipline of that examination is the subject of the firm’s page on cross-examination in Massachusetts criminal trials.

Photographs, Medical Records, and the Nurse Examiner Interview

The 911 call and the officer’s account are not the only out-of-court evidence in these cases. The Commonwealth often offers photographs of injuries, hospital records, and the report of a sexual assault nurse examiner, and each carries its own admissibility question. Photographs require a witness to establish what they show. Medical and hospital records are admitted under the statutory provisions that govern them, G.L. c. 233, §§ 78 and 79, and a statement within a record is admissible only so far as those provisions and the confrontation right allow. A nurse examiner interview conducted after the emergency has passed can fail the spontaneity test and can raise confrontation concerns. Commonwealth v. McCoy, 456 Mass. 838, 849 (2010). The defense examines each document and each recorded statement against the same rules, rather than allowing the file to come in as a single package.

The Recanting or Non-Testifying Complainant

A complainant may decline to testify for many reasons that have nothing to do with the truth of the original report, including reconciliation, financial dependence, fear, or the discovery that an accusation made in anger was untrue. Massachusetts prosecutors pursue many of these cases without the accuser, building the proof from the 911 recording, the officer’s testimony, photographs, and medical records. The dynamics of a recantation, and the lawful limits on it, are addressed in the firm’s post on recantation in Massachusetts domestic violence cases. The same incident often produces a parallel 209A abuse prevention order or 258E harassment prevention order case, and a statement made in one proceeding can be used in the other. The defense meets that approach by holding each piece to the rules described above.

The interaction of these rules with the broader confrontation doctrine in domestic violence prosecutions is treated in the firm’s post on the Confrontation Clause and forfeiture by wrongdoing, and the underlying charges are addressed on the Massachusetts domestic violence defense page.

The Sequence of the Litigation

The work follows an order. Before trial, a motion in limine asks the court to hold a voir dire and to exclude the recording and the reported statements that fail the spontaneous utterance test or that are testimonial under the Confrontation Clause. Where the Commonwealth asserts forfeiture, the defense contests the intent element on the facts at that stage. At trial, the defense renews its objections statement by statement as the evidence is offered, so that the record preserves each ruling for appeal. Once a statement is admitted, the Section 806 impeachment is ready, and the recantation, the motive, and the inconsistencies go to the jury through the officer and through the documents. Preparing that sequence in advance is what turns a difficult evidentiary posture into a contested trial.

The Defense Approach in a Pending Case

A domestic violence case in which the accuser recants or refuses to testify is not a case the defense concedes. It is a case that is won or lost on the hearsay and confrontation rules and on cross-examination. Attorney Serpa litigates these questions in domestic violence cases throughout Greater Boston, reading the 911 recording and the reports before the first hearing so that the motions and the examinations are prepared and the record is made at every step.

If you are facing a Massachusetts domestic violence charge in which the accuser may not testify, contact Attorney Serpa at 617.936.0201 for a confidential consultation.

Who Attorney Serpa Represents

Attorney Serpa defends people accused of domestic violence offenses across every kind of relationship the statutes reach, including spouses and former spouses, partners and former partners, and family or household members. Many of these cases involve an accuser who has recanted, reconciled, or declined to appear. The firm represents people charged with assault and battery on a family or household member, strangulation or suffocation, and threats to commit a crime, as well as those responding to a 209A or 258E order. It also represents professionals, students, and non-citizens for whom a domestic violence charge carries consequences beyond the criminal case.

Massachusetts Courts Where Attorney Serpa Tries These Cases

Attorney Serpa handles domestic violence cases in the Boston Municipal Court and in the district courts of Eastern and Central Massachusetts, including the Quincy, Cambridge, Dedham, Woburn, Waltham, Hingham, Framingham, Malden, Somerville, and Lowell District Courts, and elsewhere in the Commonwealth as a case requires. Each courthouse has its own judges, prosecutors, and practices, and thirty years of trying cases in these buildings informs the defense in every case.

Related Resources

• Cross-Examining an Absent Accuser. Blog Post
• Excited Utterance and Recanting Accuser FAQs. FAQ
• Boston Domestic Violence Defense Lawyer. Practice Area Hub
• Massachusetts Criminal Defense Practice Areas. Practice Area Overview
• Restraining and Harassment Prevention Orders. Practice Area Hub
• Cross-Examination in Massachusetts Criminal Trials
• The Confrontation Clause and Forfeiture by Wrongdoing in Domestic Violence Cases. Blog Post
• Recantation in Massachusetts Domestic Violence Cases. Blog Post
• Assault and Battery on a Family or Household Member (M.G.L. c. 265, § 13M)
• Strangulation or Suffocation (M.G.L. c. 265, § 15D)
• Threats to Commit a Crime (M.G.L. c. 275, § 2)
• 209A Abuse Prevention Orders
• 258E Harassment Prevention Orders
• Domestic Violence and Immigration Consequences