When the Alleged Victim Will Not Testify in a Massachusetts Domestic Violence Case: FAQs

An excited utterance, which the Supreme Judicial Court calls a spontaneous utterance, is an out-of-court statement that a court may admit into evidence even though the statement is hearsay. Commonwealth v. Hart, 493 Mass. 130 (2023). Under Section 803(2) of the Massachusetts Guide to Evidence, the statement qualifies when a startling event rendered the speaker’s normal reflective thought processes inoperative and the statement was a spontaneous reaction to that event rather than the product of reflection. Commonwealth v. Barbosa, 477 Mass. 658, 672-673 (2017); Commonwealth v. Santiago, 437 Mass. 620, 623 (2002).

Often yes. A 911 call made during an ongoing emergency, to get help against a present danger, is usually treated as nontestimonial and can be admitted into evidence even without the caller. Davis v. Washington, 547 U.S. 813 (2006). A statement is testimonial, and barred, only 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). The question whether a particular call qualifies for admission depends on the content of the call and the circumstances. The defense can contest each statement in the call separately.

A conviction is possible even if the accuser recants or refuses to testify. Massachusetts prosecutors pursue domestic violence cases without the accuser, relying on the 911 recording, the responding officer, photographs, and medical records. The defense contests the admissibility of the Commonwealth’s evidence, and whether the evidence proves the charge beyond a reasonable doubt, through the hearsay and confrontation rules and through cross-examination.

The judge’s decision whether to admit each statement depends on the primary purpose of the statement. Words spoken to meet an ongoing emergency are nontestimonial and may be admitted into evidence. An account given to an officer after the scene is secure, in answer to questions about what happened, is testimonial and cannot be admitted into evidence through the officer unless the accuser testifies. Davis v. Washington, 547 U.S. 813 (2006); Crawford v. Washington, 541 U.S. 36 (2004); Commonwealth v. Imbert, 479 Mass. 575 (2018).

Forfeiture by wrongdoing is the doctrine under which the Commonwealth may introduce an absent witness’s statements into evidence when the defendant wrongfully caused the absence. The Commonwealth must prove, by a preponderance of the evidence, that the witness is unavailable, that the defendant procured the unavailability, and that the defendant intended that result. Commonwealth v. Edwards, 444 Mass. 526 (2005); Giles v. California, 554 U.S. 353 (2008). The defendant’s wrongdoing need not be violent. A defendant who persuades a complainant not to cooperate, including through calls from jail, can commit enough wrongdoing for the doctrine to apply. Commonwealth v. Szerlong, 457 Mass. 858 (2010); Commonwealth v. Valentin, 91 Mass. App. Ct. 515, 520 (2017). Forfeiture by wrongdoing does not apply when an accuser stays away on their own.

Yes. Section 806 of the Massachusetts Guide to Evidence permits the defense to attack the accuser’s credibility as if the accuser had testified, after the judge admits the accuser’s out-of-court words into evidence. The defense may use a prior inconsistent statement, such as a recantation, to attack the accuser’s credibility. The prior inconsistent statement is admissible regardless of whether the accuser had an opportunity to explain it. Mass. G. Evid. § 806; Commonwealth v. Mahar, 430 Mass. 643, 649 (2000); Commonwealth v. Gray, 463 Mass. 731, 748 & n.17 (2012).

Not easily. A written statement requires heightened indicia of reliability, because writing usually involves reflection. The Supreme Judicial Court held a written statement inadmissible where the statement was made at least eight and one half hours after the event. Commonwealth v. DiMonte, 427 Mass. 233, 239 (1998). A formal interview conducted after the event, including a sexual assault nurse examiner interview, can lack the required spontaneity. Commonwealth v. McCoy, 456 Mass. 838, 849 (2010).

A spontaneous utterance can be in response to a dispatcher or police question. A spontaneous utterance can also be a statement that was not a response to a question. The factor that determines whether a statement qualifies as a spontaneous utterance is whether the declarant is still under the frightening influence of the event such that they cannot think to fabricate or exaggerate. Commonwealth v. Simon, 456 Mass. 280, 296 (2010). There is no fixed time limit. The Appeals Court upheld the decision to admit into evidence a 911 call made about an hour after the incident, where the caller was still under the frightening influence of what had happened. Commonwealth v. Nunez Severino, No. 24-P-1211 (Mass. App. Ct. Oct. 15, 2025).

A complainant cannot dismiss a criminal case alone, because the Commonwealth, not the accuser, controls the prosecution. A person facing the charge should speak with a lawyer before relying on any assurance that the case will be dismissed. The Commonwealth may still proceed with the case using the 911 recording and the officer’s testimony. A parallel 209A restraining order may also remain in place. The evidentiary framework is explained on the firm’s page about excited utterances and spontaneous utterances when an accuser recants or refuses to testify. Attorney Serpa can be reached at 617.936.0201.

A witness can refuse to answer only where a privilege applies. The spousal privilege under G.L. c. 233, § 20 allows a husband or wife to decline to testify against the other in a criminal case. The Fifth Amendment allows any witness to decline to answer where the answer would tend to incriminate them. An alleged victim who is not married to the defendant and faces no criminal exposure has no privilege, so the judge can order the alleged victim to answer. A witness who refuses anyway can be held in contempt.

The case continues. The district attorney’s office decides whether the Commonwealth proceeds. The prosecution does not end merely because the alleged victim is absent. The prosecutor can ask the judge for a continuance and can summons the witness. The Commonwealth can go forward without the alleged victim’s testimony where it can prove the case through the 911 call, the responding officer, photographs, or medical records. Some cases are dismissed when the Commonwealth cannot meet its burden without the witness, but the dismissal is the judge’s decision on the evidence, not an automatic result of the witness’s absence.

The prosecutor can proceed without the alleged victim. The Commonwealth, not the alleged victim, prosecutes the charge. Without the alleged victim, the Commonwealth often tries the case on the 911 call, the responding officer’s observations, photographs of injuries, and medical records. The judge decides separately, under the hearsay rule and the Confrontation Clause, whether the jury may hear any out-of-court statement. The Commonwealth may be unable to go forward if the judge excludes the out-of-court statements and no other evidence proves the elements.

The prosecutor tells the judge the witness is absent and either asks for a continuance or moves forward on the other evidence. The judge can issue a summons for the witness, and in some cases a capias. The Commonwealth may try the case on the 911 call, the responding officer, photographs, and medical records. The judge can allow a motion for a required finding of not guilty if the judge excludes the out-of-court statements and the remaining evidence does not prove the elements.

Hearsay is not admissible unless an exception applies. In a domestic violence trial the Commonwealth most often relies on the spontaneous utterance exception in Section 803(2) of the Massachusetts Guide to Evidence, which covers a statement made under the stress of a startling event. Statements for medical diagnosis or treatment and business records have their own exceptions. A statement that qualifies under a hearsay exception must also satisfy the Confrontation Clause. The Confrontation Clause bars a testimonial statement unless the defendant has had a chance to cross-examine the person who made it.

A statement to a police officer is admissible only where it satisfies the hearsay rule and the Confrontation Clause. The judge first decides whether the statement is a spontaneous utterance under Section 803(2). The judge then decides whether the statement is testimonial. A statement made to meet an ongoing emergency is not testimonial, but a statement given after the scene is secure, in answer to questions about what happened, is usually testimonial. The defense objection is more likely to succeed when more time has passed between the event and the statement, and when the statement more closely resembles an interview.

A statement to an emergency medical technician or a physician can be admitted into evidence where the person made the statement for diagnosis or treatment and the statement is reasonably pertinent to that purpose. Medical records are admissible under G.L. c. 233, § 79 so far as they relate to treatment and medical history. Under § 79, a reference in the medical records to the question of liability is not admissible. The defense often contests a statement identifying the person who caused an injury on both grounds, as not pertinent to diagnosis or treatment and as a reference to the question of liability. The judge decides the confrontation question separately.

Photographs can be admitted into evidence without the alleged victim’s testimony. A photograph must be authenticated, which means a witness testifies that it fairly and accurately shows what it depicts. The responding officer who saw the injuries can usually authenticate the photographs. A photograph is not a statement, so the hearsay rule and the Confrontation Clause do not apply to the image itself. The defense objection is ordinarily to the foundation, to what the photograph actually shows, or to unfair prejudice where the image adds little beyond inflaming the jury.

The Commonwealth can still prove the case using the earlier statement. The jury decides which version was proven beyond a reasonable doubt. The prosecutor calls as a witness the officer who heard the statement. The Supreme Judicial Court held in Commonwealth v. Moquette, 439 Mass. 697 (2003), that a spontaneous utterance is sufficient by itself to support a conviction, and declined to require corroboration. The jury gives the later account whatever weight it deserves. A witness who says the officer wrote something down wrong is saying something different from a witness who admits making the statement and later says it was false.

A judge can admit into evidence prior inconsistent statements of a recanting witness. The jury will hear the current version from the live testimony of the witness. A lawyer will then elicit the prior inconsistent statement. The jury will consider both versions and all other admitted evidence in deciding whether the Commonwealth has proven its case beyond a reasonable doubt. The defense can cross-examine on the reason for the original statement and on everything that bears on credibility. Section 806 of the Massachusetts Guide to Evidence allows the defense to impeach a declarant who never takes the stand.

Reporting a crime falsely to police is a crime under G.L. c. 269, § 13A. Lying under oath is perjury under G.L. c. 268, § 1. A defendant convicted of perjury outside a capital trial can be sentenced to state prison for up to twenty years, to jail for up to two and a half years, or fined up to one thousand dollars. Section 1 bars a perjury prosecution where the person corrects the false statement in the same continuous proceeding before it affects the case. Prosecutors in Massachusetts rarely bring either charge against a complaining witness in a domestic violence case. A witness considering changing an account given to the police should speak with their own lawyer first, because the defendant’s attorney does not represent that witness.