Excited Utterances, Spontaneous Utterances, and a Recanting Accuser: Massachusetts FAQs

An excited utterance, which the Supreme Judicial Court now calls a spontaneous utterance, is an out-of-court statement a court may admit even though it 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 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). Whether a particular call qualifies depends on its content and the circumstances, and the defense can contest it statement by statement.

It is possible. Massachusetts prosecutors pursue domestic violence cases without the accuser, relying on the 911 recording, the responding officer, photographs, and medical records. Whether that evidence is admissible, and whether it proves the charge beyond a reasonable doubt, is contested through the hearsay and confrontation rules and through cross-examination.

The law turns on the primary purpose of the statement. Words spoken to meet an ongoing emergency are nontestimonial and may be admitted, while an account given to an officer after the scene is secure, in answer to questions about what happened, is testimonial and cannot be admitted 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).

It is the doctrine the Commonwealth uses to admit an absent witness’s statements 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 wrongdoing need not be violent; persuading a complainant not to cooperate, including through calls from jail, can suffice. Commonwealth v. Szerlong, 457 Mass. 858 (2010); Commonwealth v. Valentin, 91 Mass. App. Ct. 515, 520 (2017). An accuser who stays away on their own does not create a forfeiture.

Yes. When the Commonwealth admits the accuser’s out-of-court words, Section 806 of the Massachusetts Guide to Evidence permits the defense to attack that person’s credibility as if they had testified, including with a prior inconsistent statement such as a recantation, and the prior statement comes in 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, and the Supreme Judicial Court held one inadmissible where it 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).

It can. A question does not by itself turn a spontaneous reaction into a reflective account, and a statement given in response to a question may still be admitted if the stress of the event still controlled the speaker. Commonwealth v. Simon, 456 Mass. 280, 296 (2010). There is no fixed time limit, and the Appeals Court recently upheld admission of a 911 call made about an hour after the startling event where the caller remained under its stress. 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 disappear, because the 911 recording and the officer’s testimony may allow it to proceed, and a parallel 209A restraining order may 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.