Massachusetts Spousal Privilege and Marital Communications

Massachusetts law has two separate rules involving testimony by a spouse. Under M.G.L. c. 233, § 20, Second, a person who is legally married when testimony is sought generally may choose not to testify against the other spouse at a criminal trial. Under § 20, First, a different rule ordinarily disqualifies testimony by either spouse about private oral conversations made during the marriage.

The rules protect different things and contain different exceptions. The testimonial privilege belongs to the spouse called as a witness. The marital-communications disqualification concerns the content of a qualifying private conversation. It does not create a general privilege for everything spouses tell, text, email, send, or show each other.

The distinction is especially consequential in a criminal case alleging that one spouse committed a crime against the other. The witness-spouse may ordinarily choose not to testify at the trial, but if that spouse elects to testify, the statute’s crime-against-a-spouse exception permits testimony about private marital conversations. The court must apply each clause separately.

The complete statutory language appears in M.G.L. c. 233, § 20, and the Massachusetts Trial Court organizes the governing decisions in Massachusetts Guide to Evidence § 504. Short answers to common client questions appear in the Massachusetts Spousal Privilege and Marital Communications FAQ.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. Serpa Law Office represents defendants in the District Courts, the Boston Municipal Court, and the Superior Courts when testimony by a spouse, prior statements, digital messages, or an alleged effort to prevent testimony may affect the prosecution. Contact the office at 617.936.0201 for a confidential consultation.

The Two Rules in M.G.L. c. 233, § 20

The defendant-spouse cannot require the witness-spouse to invoke the testimonial privilege. The defendant also cannot prevent a willing spouse from testifying merely because the witness is married to the defendant. Commonwealth v. DiPietro, 373 Mass. 369 (1977); Commonwealth v. Maillet, 400 Mass. 572 (1987).

The communications rule operates differently. If a spouse proposes to testify about a qualifying private conversation and no exception applies, a timely objection excludes the contents even if both spouses want the court to hear them. Gallagher v. Goldstein, 402 Mass. 457 (1988). The judge must first decide whether the evidence concerns a private oral conversation made during the marriage and whether an exception removes it from the disqualification.

The Spousal Testimonial Privilege

The Witness-Spouse Decides Whether to Testify

Section 20, Second provides that neither spouse shall be compelled to testify against the other at the trial of an indictment, complaint, or other criminal proceeding. Only the spouse called as a witness may claim that privilege.

The privilege applies whether the proposed testimony would help or hurt the defendant-spouse. A defendant cannot force a spouse to testify for the defense, and the defendant cannot stop a willing spouse from testifying for the Commonwealth. If the witness-spouse chooses to testify, the judge should determine outside the jury’s presence that the decision is knowing and voluntary. Commonwealth v. Stokes, 374 Mass. 583 (1978).

The Couple Must Be Married When Testimony Is Sought

The testimonial privilege depends on a valid marriage when the spouse is called to testify. It can apply even if the couple was not married when the alleged incident occurred and married afterward. Commonwealth v. DiPietro, 373 Mass. 369 (1977).

Separation does not by itself end a marriage. A spouse who remains legally married may still invoke the privilege even when the spouses live apart or a divorce case is pending. Once the marriage has ended, the former spouse no longer holds the testimonial privilege based on that marriage.

Massachusetts recognizes no comparable spousal testimonial privilege for dating partners, engaged couples, or unmarried cohabitants. Commonwealth v. Diaz, 422 Mass. 269 (1996).

The Privilege Does Not Apply in Every Proceeding

The testimonial privilege applies at a criminal trial. It does not prevent a spouse from being compelled to testify in an ordinary civil case, and the Supreme Judicial Court has held that it does not apply before a grand jury. Matter of a Grand Jury Subpoena, 447 Mass. 88 (2006).

The Supreme Judicial Court has not defined the privilege’s full reach at every pretrial or posttrial proceeding. It has applied the privilege at a pretrial hearing on a motion in limine. Commonwealth v. Szerlong, 457 Mass. 858 (2010). Counsel should therefore identify the exact proceeding rather than assume that a trial rule supplies the answer everywhere.

Statutory Exceptions to the Testimonial Privilege

The testimonial privilege does not apply in a proceeding relating to child abuse, including incest. Section 20 also contains an exception tied to M.G.L. c. 273, § 7, and the Massachusetts Guide to Evidence identifies prosecutions for nonsupport, desertion, and neglect of parental duty among the proceedings outside the privilege.

The adult crime-against-a-spouse exception appears in § 20, First, the communications provision. It does not appear in § 20, Second. As a result, an adult spouse who is the alleged victim may ordinarily decline to testify at the criminal trial, even though the communications disqualification would not restrict the testimony if the spouse chose to give it.

The Marital-Communications Disqualification

The Rule Protects Private Oral Conversations During Marriage

Section 20, First ordinarily prevents either spouse from testifying about the contents of a private conversation with the other spouse during their marriage. The rule applies in civil and criminal proceedings. It protects the contents of the qualifying conversation rather than giving either spouse a personal option to disclose or withhold it.

The marriage must have existed when the conversation occurred. The rule does not protect conversations before marriage. Commonwealth v. Azar, 32 Mass. App. Ct. 290 (1992). The rule measures marital status when the conversation occurred, not when testimony is later sought.

The disqualification survives the death of a spouse, subject to the statutory rule for certain declarations by a deceased person in civil proceedings. Dexter v. Booth, 84 Mass. 559 (1861); M.G.L. c. 233, § 65.

The Judge Decides Whether the Conversation Was Private

Privacy is a preliminary factual question for the judge. The setting, the people who were present, what those people could hear, and whether the spouses reasonably spoke privately can all affect the ruling. Commonwealth v. Stokes, 374 Mass. 583 (1978).

The presence of a child does not produce an automatic answer. The judge may consider whether the child overheard the conversation and whether the child was old and attentive enough to understand it. A conversation in the presence of another adult will ordinarily present a different record from a quiet exchange that a young child could not understand.

Later disclosure by one spouse does not by itself change the private character of the original conversation. Commonwealth v. Garcia, 476 Mass. 822 (2017). But a third person who personally overheard the conversation is not disqualified from testifying about what that person heard. Commonwealth v. O’Brien, 377 Mass. 772 (1979).

The Rule Protects Contents, Not the Fact That a Conversation Occurred

Section 20, First can exclude testimony recounting what the spouses said. It does not necessarily prevent a witness from establishing that a conversation occurred or that a spouse took an action afterward. Gallagher v. Goldstein, 402 Mass. 457 (1988); Sampson v. Sampson, 223 Mass. 451 (1916).

The distinction can decide a motion in limine. A court may bar the witness from repeating the words of a protected conversation while permitting evidence that the spouses spoke and that one of them then called another person, left a location, transferred property, or took some other independently relevant action.

A Timely Objection Is Required

The contents of a qualifying conversation are excluded when a party objects and no exception applies. If no one objects, the judge may admit the testimony and give it its full evidentiary value. Commonwealth v. Stokes, 374 Mass. 583 (1978); Miller v. Miller, 448 Mass. 320 (2007).

Counsel should identify the particular conversation, the date of the marriage, the people present, the purpose for which the evidence is offered, and the exception asserted by the opposing party. Describing the evidence generally as “spousal privilege” does not preserve the separate question under § 20, First.

Section 20 Protects Conversations, Not Written Communications

The marital-communications disqualification does not create a general confidentiality rule for everything spouses exchange. Section 20, First uses the term “private conversations,” and the Supreme Judicial Court has held that written communications fall outside that language. In Commonwealth v. Szczuka, 391 Mass. 666, 678 n.14 (1984), the Court held that letters between spouses were not within the disqualification.

The current Massachusetts Guide to Evidence states the rule directly: the disqualification applies only to conversations, not to other forms of communication, and written communications are not included. A spouse therefore cannot exclude a letter merely by showing that one spouse wrote it privately to the other during the marriage.

Text messages, emails, direct messages, and shared digital documents present the modern form of the same problem. No published Massachusetts appellate decision has squarely decided whether a text exchange between spouses qualifies as a “conversation” under § 20, First. The statutory language, Szczuka, and the Massachusetts Guide to Evidence give the Commonwealth a direct argument that an electronic writing falls outside the disqualification. A defendant should not assume that a private text, email, or direct message is protected merely because only the spouses originally received it.

The absence of protection under § 20, First does not make a message automatically admissible. The proponent must still authenticate the message, establish a hearsay basis when one is required, and satisfy constitutional limits. The defense may also challenge how police obtained the device or account. Those questions are treated separately on the pages covering digital evidence in Massachusetts criminal cases and police searches of phones and computers.

A recording presents additional questions. A voice message, recorded call, or secretly captured conversation should not be classified mechanically as either an oral conversation or a writing. Counsel must determine how the recording was created, whether the Massachusetts wiretap statute permits its use, whether the speaker can be identified, and what hearsay or constitutional rule applies. The site addresses that separate body of law on the page covering secret recordings and the Massachusetts wiretap statute.

The Exceptions to the Marital-Communications Disqualification

Section 20, First and related Massachusetts law contain several exceptions. The judge must identify the type of proceeding and the purpose for which the evidence is offered before deciding whether an exception applies.

A Criminal Charge Involving a Crime Against the Other Spouse

The disqualification does not apply in a criminal proceeding in which one spouse is alleged to have committed a crime against the other. If the witness-spouse chooses to testify in that case, § 20, First does not bar testimony about private marital conversations.

This exception applies to the communications rule. The witness-spouse retains the separate choice under § 20, Second whether to testify in an adult criminal case. Courts and counsel must not combine those two questions.

A Qualifying Protective-Order Violation

The statute also excepts a criminal proceeding alleging that one spouse violated a qualifying vacate, restraining, or no-contact order obtained by the other spouse. That category includes specified Massachusetts orders and similar protection orders issued by another jurisdiction.

A 209A abuse prevention order creates separate civil and criminal questions. The existence of an order, the terms of the order, the alleged violation, and the admissibility of a spouse’s statements must each be addressed under the rule governing that question. The criminal charge itself is covered on the page about violating a 209A abuse prevention order.

Child-Abuse Proceedings

Both spousal protections contain child-abuse exceptions. The exception is not limited to abuse of the couple’s own child and applies to criminal as well as civil child-abuse proceedings. Villalta v. Commonwealth, 428 Mass. 429 (1998); Commonwealth v. Burnham, 451 Mass. 517 (2008).

Contract, Parentage, Support, and Related Proceedings

The communications disqualification does not apply in specified proceedings involving contracts between spouses, parentage, support, nonsupport, desertion, or neglect of parental duty. These exceptions arise most often outside a criminal-defense case, but they prevent § 20 from being treated as a general rule covering every dispute between spouses.

A Deceased Spouse’s Declaration in a Civil Proceeding

M.G.L. c. 233, § 65 permits certain declarations of a deceased person in a civil proceeding when the judge finds that the declaration was made in good faith and from personal knowledge. The statute expressly addresses private conversations between spouses in that setting.

The Defendant’s Constitutional Right to Present a Defense

A defendant’s constitutional rights can require admission of a marital conversation when excluding it would materially impair confrontation, cross-examination, or the presentation of the defense. The court examines the evidence’s significance rather than treating every claim of usefulness as a constitutional exception. Commonwealth v. Sugrue, 34 Mass. App. Ct. 172 (1993); Commonwealth v. Perl, 50 Mass. App. Ct. 445 (2000).

The site’s page on cross-examination in Massachusetts criminal trials explains the related confrontation and impeachment principles.

Threats, Abuse, Conduct, and Exclamations Are Different From Private Conversations

Not every word exchanged by spouses is a private marital conversation. Words constituting or accompanying abuse, threats, or an assault on the other spouse are outside the protected category. Commonwealth v. Gillis, 358 Mass. 215 (1970); Commonwealth v. Foxworth, 473 Mass. 149 (2015). Complaints and exclamations of pain are also not treated as private conversations. Commonwealth v. Jardine, 143 Mass. 567 (1887).

Conduct is likewise different from conversation. A spouse may describe an alleged act, injury, movement, or event without recounting a protected private exchange. The judge should identify exactly what the proposed testimony would prove before deciding whether § 20, First applies.

In an adult prosecution alleging a crime by one spouse against the other, the express statutory exception independently removes the communications disqualification. The distinction between abusive words and a confidential exchange can still matter in another proceeding or when the alleged victim is someone other than the spouse.

Spousal Privilege in a Massachusetts Domestic Violence Case

A marriage does not require the Commonwealth to dismiss a Massachusetts domestic violence case. The witness-spouse may invoke the testimonial privilege, but the prosecution may seek to prove the charge through admissible evidence that does not require live testimony from that spouse.

The Commonwealth commonly examines 911 audio, body-worn camera recordings, police observations, medical records, photographs, messages, and statements to other witnesses. An out-of-court statement remains subject to the hearsay rules and the Confrontation Clause. The testimonial privilege does not itself make a prior statement admissible.

The hearsay exception litigated frequently in these cases is the spontaneous or excited utterance exception. The Commonwealth must establish that a startling event made normal reflective thought inoperative and that the statement resulted from the event rather than later reflection. Commonwealth v. Santiago, 437 Mass. 620 (2002).

If the statement is testimonial, the Confrontation Clause ordinarily bars it unless the witness is unavailable and the defendant had a prior opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36 (2004). Whether a 911 or police statement is testimonial depends on its primary purpose and the circumstances when the speaker made it. The site’s companion article explains how the defense can challenge statements attributed to an absent accuser under Massachusetts evidence law.

A spouse who recants or asks the Commonwealth to end the prosecution does not control the charging decision. A judge also has limited authority to dismiss a complaint over the prosecutor’s objection. The governing rules appear on the page explaining how criminal cases get dismissed in the Massachusetts District and Municipal Courts.

Forfeiture by Wrongdoing and Contact With the Witness-Spouse

A defendant cannot intentionally cause a witness to become unavailable and then use that unavailability to exclude the witness’s prior statements. To establish forfeiture by wrongdoing, the Commonwealth must prove by a preponderance of the evidence the witness’s unavailability, the defendant’s involvement in procuring it, and the defendant’s intent to make the witness unavailable. The conduct need not itself be a separately charged crime. Commonwealth v. Edwards, 444 Mass. 526 (2005); Commonwealth v. Szerlong, 457 Mass. 858 (2010). The current Massachusetts Guide to Evidence § 804 collects the governing forfeiture and unavailability rules.

A marriage entered into or used as part of an agreement to prevent testimony can support a forfeiture claim when the required intent is proven. Marriage alone is not enough. The judge must make findings about procurement and intent.

A defendant should not contact a spouse or complaining witness about testimony, a pending case, a subpoena, or a request to recant. Contact may violate a court order and may support a separate charge of intimidation of a witness. Necessary communication about children, property, or another legitimate subject must comply with every existing order and should proceed through counsel where the order or pending case creates uncertainty.

How the Court Resolves a Spousal-Privilege Question

The judge ordinarily resolves the witness-spouse’s election outside the jury’s presence. The judge may determine whether the couple remains legally married, whether the witness understands the testimonial privilege, and whether a decision to testify is knowing and voluntary. The court should not require the spouse to explain the reasons for invoking the privilege, and the jury should not draw an adverse inference from that decision. Commonwealth v. Szerlong, 457 Mass. 858 (2010).

The marital-communications question requires a different record. Counsel should identify:

1. The words the proponent seeks to introduce.
2. Whether the evidence is oral conversation, a writing, a recording, conduct, or an exclamation.
3. Whether the parties were legally married when the communication occurred.
4. Where the communication occurred and who was present.
5. Whether the proceeding falls within a statutory exception.
6. Whether the evidence is offered to prove its contents, the fact that a conversation occurred, a later action, bias, motive, or another purpose.
7. Whether a constitutional right requires admission.

A motion in limine can place these questions before the judge before the jury hears the evidence. Counsel must renew an objection when the evidence is offered if the court has not entered a definitive ruling or the circumstances have changed.

How Attorney Serpa Handles These Cases

Attorney Serpa separates the testimonial privilege, the communications disqualification, hearsay, confrontation, authentication, and forfeiture questions. A ruling under one doctrine does not decide the others.

Where a witness-spouse intends to invoke § 20, Second, Attorney Serpa asks the judge to address the election outside the jury’s presence. Where the Commonwealth offers an alleged marital conversation, he identifies the form of the communication, when it occurred, who was present, and the statutory or constitutional exception the Commonwealth relies upon.

If the prosecution offers a 911 call, body-worn camera recording, text message, or another prior statement, the defense examines each statement separately for authentication, hearsay, and confrontation. The defense also reviews how police obtained a phone, account, recording, or message and whether a warrant or another legal basis authorized that acquisition.

These questions arise frequently in prosecutions for assault and battery on a family or household member and in cases involving a 209A order. The broader sequence from arrest through trial appears in the firm’s guide to how Massachusetts domestic violence charges are prosecuted and resolved.

Related Massachusetts Evidence and Domestic Violence Resources

• Massachusetts Spousal Privilege and Marital Communications FAQ
• Rights and Legal Concepts in a Massachusetts Criminal Case
• Boston Domestic Violence Defense Lawyer
• Excited and Spontaneous Utterances in Massachusetts
• Digital Evidence in Massachusetts Criminal Cases
• Cross-Examination in Massachusetts Criminal Trials
• Massachusetts 209A Abuse Prevention Orders
• Massachusetts Domestic Violence Law FAQs

Serpa Law Office can be reached at 617.936.0201. The firm maintains offices at 20 Park Plaza, Suite 400A, Boston, and 500 Victory Road, Suite 400A, Quincy. Consultations are free and confidential.