Massachusetts Marital Privilege and the Marital Communications Disqualification

Massachusetts General Laws chapter 233, § 20 establishes two separate spousal protections that serve different functions and have materially different rules of control, waiver, and scope. Section 20, First bars a spouse from testifying to a private conversation with the other spouse; section 20, Second permits a spouse called to testify against the other spouse to decline to do so. The Supreme Judicial Court treats the former as a categorical evidentiary disqualification and the latter as a personal testimonial privilege.

Keeping that distinction clear is essential: a spouse’s willingness to testify may resolve the question under the Second clause, but it does not permit testimony about a protected private marital conversation under the First clause. Commonwealth v. Garcia, 476 Mass. 822 (2017).

I. Section 20 Creates a Communications Disqualification and a Separate Testimonial Privilege

A. The First Clause categorically excludes private marital conversations

The protection in Mass. Gen. Laws ch. 233, § 20, First is properly characterized as the marital-communications disqualification, rather than an ordinary privilege. It excludes a spouse’s testimony concerning private conversations between the spouses. Commonwealth v. Garcia, 476 Mass. 822 (2017). The classification matters because the statutory bar is absolute: neither spouse can waive it, even if both want the evidence admitted. Gallagher v. Goldstein, 402 Mass. 457 (1988). Thus, the court must exclude testimony within the First clause’s scope rather than balance the spouses’ competing preferences or infer consent from one spouse’s voluntary cooperation.

The disqualification turns on the character of the communication, whether it was a private marital conversation, not on whether one spouse later revealed its content to another person. Disclosure to a third party does not itself remove the statutory bar to a spouse’s testimony about the underlying private conversation. Commonwealth v. Garcia, 476 Mass. 822 (2017). The rule therefore protects the marital conversation as a defined category of evidence, rather than merely protecting secrecy in the conventional privilege sense.

That category is not unlimited. The statute reaches private conversations, not every utterance made between spouses. Threats, abusive words, and statements constituting or accompanying abuse or assault fall outside the protected class; treating those statements as protected marital conversation would extend the statute beyond its confidentiality-based purpose. Commonwealth v. Gillis, 358 Mass. 215 (1970). The operative inquiry is consequently functional and contextual: whether the proposed testimony recounts a private marital exchange, as opposed to threatening or abusive conduct that the First clause does not shelter.

B. The Second Clause gives only the witness-spouse the choice whether to testify

Mass. Gen. Laws ch. 233, § 20, Second creates a different protection: the testimonial privilege. It belongs solely to the spouse called as a witness, not to the defendant-spouse. Commonwealth v. DiPietro, 373 Mass. 369 (1977). The witness-spouse may invoke the privilege to resist compelled testimony against the other spouse, but the defendant cannot invoke it to prevent a willing spouse from testifying. Commonwealth v. Maillet, 400 Mass. 572 (1987); Commonwealth v. DiPietro, 373 Mass. 369 (1977).

Because the Second clause protects against compulsion rather than inquiry itself, a prosecutor may call the spouse to the stand and the spouse may then elect whether to assert the privilege. Commonwealth v. DiPietro, 373 Mass. 369 (1977). If invoked, the spouse’s resulting testimony is unavailable for purposes that depend on witness unavailability. Commonwealth v. DiPietro, 373 Mass. 369 (1977).

If the witness-spouse elects to testify, however, that election does not override the First clause: testimony may be voluntary under the testimonial privilege yet still inadmissible if it recounts a private marital conversation. Commonwealth v. Garcia, 476 Mass. 822 (2017).

II. Practical Sequence for Applying the Two Protections

A court should address the protections independently. First, it should determine whether the evidence is testimony about a private conversation between spouses. If so, § 20, First disqualifies the testimony without regard to either spouse’s consent, later disclosure, or tactical preference. Gallagher v. Goldstein, 402 Mass. 457 (1988); Commonwealth v. Garcia, 476 Mass. 822 (2017).

If the evidence does not fall within that categorical communications bar, the court should separately ask whether the witness is being compelled to testify against a spouse and, if so, whether the witness-spouse elects to invoke § 20, Second. That sequence gives effect to the Legislature’s distinct choices: an absolute exclusion for protected private marital communications and a personal option for the witness-spouse to decline adverse testimony.

III. Statutory and Doctrinal Limits on Marital Protections

The protections in § 20 are substantial but not boundless. Before treating testimony as excluded or unavailable, a court must identify the particular statutory exception or doctrinal limitation that bears on the evidence and distinguish a genuinely private marital communication from conduct, statements, or circumstances outside the statute’s reach.

A. Child-abuse proceedings fall within an express exception

The child-abuse exception applies broadly to proceedings concerning abuse of a child; it is not confined to abuse of the spouses’ own child or a child related to either spouse in a manner that could support an incest charge. Villalta v. Commonwealth, 428 Mass. 429 (1998). Nor is the exception limited to civil proceedings. The term “proceeding” in § 20 encompasses both civil and criminal child-abuse matters, so the communications disqualification cannot exclude otherwise covered testimony merely because the prosecution is criminal. Commonwealth v. Burnham, 451 Mass. 517 (2008).

Accordingly, where the proceeding relates to child abuse, the court should apply the exception according to the subject of the proceeding rather than grafting onto the statute a family-relationship or civil-case limitation. This construction ensures that a spouse cannot use either form of marital protection to withhold evidence solely because the abused child is not the couple’s child.

B. The First clause protects communications, not abusive conduct or statements integral to it

Section 20, First concerns private marital conversations, not all conduct occurring between spouses. Threatening and abusive words are outside the protected category because they are statements constituting or accompanying abuse, rather than confidential marital exchanges. Commonwealth v. Gillis, 358 Mass. 215 (1970); Commonwealth v. Burnham, 451 Mass. 517 (2008). Thus, a party offering evidence of assaultive conduct, threats, or abuse need not establish an exception to a communications disqualification that never attached in the first place.

The distinction requires attention to what the evidence proves. Testimony describing an act or words that implement, threaten, or accompany abuse is admissible on that basis even if it occurred in the marital relationship; only testimony that recounts a qualifying private conversation triggers the First clause. That limitation prevents the disqualification from becoming a shield for abuse while preserving its defined protection for marital communications.

C. A third person’s contemporaneous presence defeats the required privacy

A conversation is not “private” for purposes of § 20, First when a third person is present while it occurs. The third person need not hear every word for the disqualification to be unavailable. Commonwealth v. Perez, 460 Mass. 683 (2011). The relevant question is therefore whether another person was contemporaneously present in circumstances that defeat the conversation’s private character, not whether that person can supply a complete account.

This rule is distinct from later disclosure of an otherwise private marital conversation. Later disclosure does not eliminate the statutory disqualification, but third-party presence at the time of the exchange means the threshold requirement of a private conversation was never met. Commonwealth v. Garcia, 476 Mass. 822 (2017); Commonwealth v. Perez, 460 Mass. 683 (2011). Courts should consequently focus on the setting at the time of the communication.

D. Constitutional trial rights can outweigh the communications disqualification

Even where testimony otherwise concerns a private marital conversation, a defendant’s constitutional rights to confrontation, cross-examination, and a fair trial may override the First clause when the evidence is material and significant to the defense. Commonwealth v. Sugrue, 34 Mass. App. Ct. 172 (1993). The inquiry is not whether the evidence is merely useful; it is whether its exclusion would materially impair the defendant’s ability to test adverse testimony or present the defense.

That limitation is especially forceful where the excluded communication bears on a witness’s concrete motive to fabricate and the marital relationship is already in disrepair. In those circumstances, exclusion may burden core constitutional protections without advancing the confidentiality interest underlying the statutory disqualification. Commonwealth v. Sugrue, 34 Mass. App. Ct. 172 (1993). A court must therefore assess the evidence’s specific defensive value before enforcing the statutory bar at the expense of a fair trial.

E. A defendant cannot procure a spouse’s unavailability and then benefit from it

The forfeiture-by-wrongdoing doctrine prevents a defendant from relying on marital protections after intentionally procuring the witness’s unavailability. Its application requires findings that the witness is unavailable, that the defendant was involved in procuring that unavailability, and that the defendant acted with the intent to procure it; the wrongdoing need not itself be criminal. Commonwealth v. Szerlong, 457 Mass. 858 (2010). Collusion or a marriage undertaken to enable the witness to invoke spousal privilege can satisfy the doctrine when accompanied by that purpose. Commonwealth v. Szerlong, 457 Mass. 858 (2010).

The doctrine accordingly prevents strategic manufacture of testimonial unavailability. When the required findings are supported, the defendant may not convert conduct intended to suppress testimony into a basis for excluding the witness’s prior statements or insulating the defendant from the consequences of that conduct.

F. The testimonial privilege does not extend to grand-jury proceedings

The § 20, Second testimonial privilege is limited by the type of proceeding in which testimony is sought. A Massachusetts Superior Court has concluded that the statutory reference to the trial of an indictment, complaint, or other criminal proceeding does not encompass a grand-jury proceeding. Commonwealth v. Economou, 10 Mass. L. Rptr. 29 (Mass. Super. Ct. 1999). That construction rests on the Legislature’s inclusion of express grand-jury language elsewhere in § 20, but not in the spousal-testimony provision. Commonwealth v. Economou, 10 Mass. L. Rptr. 29 (Mass. Super. Ct. 1999).

Accordingly, a witness-spouse subpoenaed before a grand jury cannot rely on the Second clause merely because the testimony may be adverse to the other spouse. The limitation concerns the testimonial privilege’s procedural reach; it does not itself resolve whether particular testimony is independently barred by the First clause’s rule for private marital conversations.

G. Joint criminal activity removes communications from the statute’s protective purpose

Communications between spouses jointly engaged in criminal activity fall outside the ordinary rationale for the marital-communications disqualification. Anderson v. Barrera, 6 Mass. L. Rptr. 481 (Mass. Super. Ct. 1997). Where the spouses are acting together to advance criminal conduct, the communication is not the kind of private marital exchange for which exclusion promotes domestic peace, conjugal loyalty, or the sanctity of marriage. Anderson v. Barrera, 6 Mass. L. Rptr. 481 (Mass. Super. Ct. 1997).

The necessary focus is on joint participation, rather than the bare fact of marriage or one spouse’s unilateral criminal conduct. If the evidence shows that both spouses were engaged in the criminal undertaking to which their communications relate, the court may admit those communications without treating § 20, First as a shield for their collaborative wrongdoing.

H. Business communications made in professional capacities are not protected marital conversations

A spouse’s business communications made solely in an employer-employee relationship are likewise outside § 20’s marital-communications protection. Anderson v. Barrera, 6 Mass. L. Rptr. 481 (Mass. Super. Ct. 1997). When the spouses communicate as business principals rather than as marital partners, the marital relationship is incidental to the professional relationship, and exclusion does not advance the purposes underlying the disqualification. Anderson v. Barrera, 6 Mass. L. Rptr. 481 (Mass. Super. Ct. 1997).

Thus, courts should evaluate the capacity in which the spouses communicated and the subject of the exchange. A communication confined to employment duties or business operations is not transformed into a protected private marital conversation simply because the participants are married.

I. In civil litigation between spouses, the disqualification must be timely raised

The First clause may arise in civil litigation between spouses, including divorce proceedings, but a party must object to preserve an evidentiary challenge based on private marital conversations. Miller v. Miller, 448 Mass. 320 (2007). Where no objection is made, the judge may consider the testimony for its full probative value. Miller v. Miller, 448 Mass. 320 (2007).

The practical consequence is that § 20, First is not self-executing through appellate review of an unpreserved objection in a dispute between spouses. Counsel in civil marital litigation should identify any private-conversation testimony when it is offered and make a contemporaneous objection; otherwise, the court may rely on the evidence in resolving the parties’ dispute.

IV. Procedure for Invoking, Resolving, and Preserving Marital Protections

A. The identity of the holder depends on which statutory protection is at issue

Procedure begins with identifying the protection at issue. The § 20, Second testimonial privilege is personal to the witness-spouse alone; the defendant-spouse cannot compel its assertion, prevent a willing spouse from testifying, or control the witness-spouse’s decision even when the defendant calls that spouse as a witness. Commonwealth v. Maillet, 400 Mass. 572 (1987); Commonwealth v. DiPietro, 373 Mass. 369 (1977).

By contrast, § 20, First operates as a disqualification of testimony concerning private marital conversations, rather than as the witness-spouse’s personal option. The court may therefore raise that bar by objection on its own initiative; it need not await a spouse’s claim. Commonwealth v. McCreary, 12 Mass. App. Ct. 690 (1981).

That distinction forecloses a common procedural error: treating the defendant-spouse’s objection as an invocation of the Second-clause privilege. The witness-spouse must make that election. But when proposed testimony implicates the First clause, counsel should identify the particular private conversation and object, while the court retains authority to enforce the disqualification independently.

B. Assertion may occur on the stand, but pretrial litigation should prevent avoidable prejudice

Because the testimonial privilege protects against compulsion rather than inquiry, a witness-spouse may be called and assert the privilege in response to questioning. Commonwealth v. DiPietro, 373 Mass. 369 (1977). A pretrial motion is also an available mechanism for alerting the court that the witness intends to invoke § 20, Second. Commonwealth v. Labbe, 6 Mass. App. Ct. 73 (1978).

When it is clearly known in advance that the witness will refuse to testify, however, the better procedure is to resolve the issue outside the jury’s presence rather than call the witness before the jury solely to invoke the privilege, which risks an adverse inference. Commonwealth v. Labbe, 6 Mass. App. Ct. 73 (1978).

Thus, counsel should use a pretrial motion to obtain a ruling or clarify the anticipated assertion, and should renew the objection if the prosecution later proposes to call the spouse. The court may permit an on-stand assertion where necessary to establish the witness’s election and resulting unavailability, but it should manage that procedure to avoid inviting the jury to treat the assertion as substantive evidence against either spouse.

C. Timely renewal and contemporaneous objection preserve the issue; silence can forfeit it

A party seeking review of the procedure surrounding a spouse’s testimony must object seasonably when the witness is called. A pretrial objection does not indefinitely preserve the issue when the circumstances later change; failure to renew it may forfeit appellate review. Commonwealth v. DiPietro, 373 Mass. 369 (1977). The same practical rule applied where the prosecutor’s plans changed after a pretrial representation that the spouse would not be called: the defendant was required to renew the objection when the witness was called. Commonwealth v. Labbe, 6 Mass. App. Ct. 73 (1978).

Accordingly, counsel should preserve a clear record at each procedural stage: identify whether the objection concerns compelled testimony under the Second clause or a private communication under the First; request resolution outside the jury’s presence where appropriate; and renew the objection when testimony is actually offered. That practice both permits the trial judge to apply the correct protection and avoids treating earlier motion practice as a substitute for a contemporaneous objection.

D. The party seeking forfeiture bears the burden to establish its required factual predicates

Forfeiture by wrongdoing is not triggered simply because a spouse is unavailable or because the marriage gives the witness a basis to invoke § 20, Second. The party seeking to overcome the protection must establish the factual predicates for forfeiture: the witness’s unavailability, the defendant’s involvement in procuring it, and the defendant’s intent to procure it. Commonwealth v. Szerlong, 457 Mass. 858 (2010). The requisite procurement may be collusive and need not itself be criminal, but intent, not mere awareness of a consequence, is essential. Commonwealth v. Szerlong, 457 Mass. 858 (2010).

A court considering forfeiture should therefore make findings directed to each element and distinguish evidence of a marital relationship from evidence that the defendant deliberately caused or assisted the witness’s unavailability for the purpose of preventing testimony. Without those findings, forfeiture cannot serve as a procedural shortcut around the statutory protections.

V. The Privilege Applies to Live Testimony, and the Case Can Proceed Without It

The privilege in § 20, Second excuses the witness-spouse from taking the stand. It does not exclude what that spouse said before trial. In Massachusetts domestic violence cases, the Commonwealth regularly proceeds after the privilege is invoked, and it does so by offering the complainant’s out-of-court statements through hearsay exceptions rather than through live testimony.

The exception used most often is the spontaneous utterance. Admission requires an occurrence startling enough to render inoperative the normal reflective thought processes of the observer, and a statement that was a spontaneous reaction to that occurrence rather than the product of reflective thought. Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). The 911 call and the statements made to the first responding officers are the usual candidates.

A spontaneous utterance is sufficient by itself to support a conviction, even where the declarant later contradicts it. Commonwealth v. Moquette, 439 Mass. 697, 702 (2003). That is the rule that decides most trials in which the spouse does not testify, and it is why an invocation of the privilege is not the end of the case.

The Confrontation Clause supplies a separate limit. Testimonial hearsay is barred unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36 (2004). Statements made while the primary purpose is to resolve an ongoing emergency are not testimonial, and in Massachusetts the emergency is treated as continuing until the police have arrived and secured the scene, or until the assailant has left. Commonwealth v. Beatrice, 460 Mass. 255 (2011).

The invocation itself is protected. A spouse may be brought out only to state whether the privilege is claimed, and no comment may be made and no adverse inference drawn from the claim. Commonwealth v. Szerlong, 457 Mass. 858 (2010). Counsel should secure that ruling before the jury hears anything about the spouse’s absence.

Two further points follow for a defendant whose spouse has decided not to testify. The decision to prosecute belongs to the Commonwealth, so a spouse who recants or asks that the matter be dropped does not end the case, and the grounds on which a judge can dismiss a case without the prosecutor are narrow. Contact with the complainant about the case can also support a forfeiture finding and can be charged separately as intimidation of a witness.

VI. How Attorney Serpa Handles a Case Where the Spouse Will Not Testify

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995, and cases in which the complaining witness is a spouse arise regularly in the Boston Municipal Court and in the District Courts of Suffolk, Norfolk, and Plymouth counties. The work begins well before trial, because the rulings that decide these cases are made on motions in limine and at voir dire rather than in front of the jury.

The first step is to separate the two protections on the record. A defense objection is not an invocation of the § 20, Second privilege, and treating it as one forfeits the point. Where the witness-spouse intends to claim the privilege, Attorney Serpa moves to have the election taken outside the presence of the jury, so that the jury does not watch a witness refuse to answer.

The First clause is litigated separately and on the facts of each conversation. That means identifying the specific exchange the Commonwealth intends to prove, establishing where it happened and who else was present, and holding the prosecutor to the requirement that the testimony recount a private marital conversation rather than threats or conduct that the statute never covered.

Where the privilege is invoked, the real fight is over the out-of-court statements the Commonwealth offers in the spouse’s place. Attorney Serpa examines the 911 audio for composure and deliberation, reviews body-worn camera footage and the police report for the complainant’s demeanor, and marks the point at which the officers’ questioning turned from the present danger to what had happened. The argument then proceeds statement by statement.

Where the Commonwealth moves for a forfeiture finding, the burden is on the prosecution to prove unavailability, the defendant’s involvement in procuring it, and the intent to procure it. Contact that had an innocent purpose, such as arranging childcare or retrieving property, is not conduct designed to prevent testimony, and the timing and content of every contact is examined on that question.

These issues arise most often in prosecutions for assault and battery on a family or household member, and frequently alongside a 209A abuse prevention order with its own hearing and its own consequences. Both proceedings are handled together, because a statement made in one can be used in the other.

Related Resources

The firm maintains a fuller treatment of the hearsay exception that decides most of these trials at excited and spontaneous utterances in Massachusetts, along with a companion article on cross-examining an absent accuser under Section 806.

For the surrounding procedure and consequences, see how Massachusetts domestic violence charges are prosecuted and resolved and the firm’s Boston domestic violence FAQs.

Speak With a Massachusetts Criminal Defense Lawyer

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