Massachusetts Spousal Privilege and Marital Communications FAQ

Massachusetts law separates a spouse’s choice not to testify from the rule governing private conversations during marriage. The first is the spousal testimonial privilege. The second is the marital-communications disqualification. They apply at different times, belong to different people, and contain different exceptions.

The questions below give short answers for defendants, spouses, and families. The complete legal analysis appears on Massachusetts spousal privilege and marital communications. The governing language is in M.G.L. c. 233, § 20.

Prepared by Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995 | Serpa Law Office, Boston and Quincy | Last Reviewed: August 2026

General Questions

What is spousal privilege in Massachusetts?

M.G.L. c. 233, § 20, Second generally permits a person who is legally married to refuse to testify against the other spouse at a criminal trial. Only the spouse called as a witness may invoke that privilege.

Massachusetts also has a separate rule that ordinarily disqualifies either spouse from testifying about qualifying private oral conversations made during the marriage. That second rule is not controlled solely by the witness-spouse and has its own exceptions.

Are spousal privilege and the marital-communications rule the same thing?

No. The testimonial privilege lets the witness-spouse choose not to testify. The communications disqualification can exclude the contents of a private oral marital conversation even when a spouse is willing to testify, unless an exception applies.

The first question concerns whether the spouse must take the stand. The second concerns whether the court may hear the contents of a particular conversation.

Who decides whether a spouse will testify?

The witness-spouse decides whether to invoke the testimonial privilege. The defendant-spouse cannot require the witness to invoke it and cannot prevent a willing spouse from testifying merely because they are married.

The judge ordinarily addresses the witness-spouse’s decision outside the jury’s presence and may determine whether a decision to testify is knowing and voluntary.

Can a defendant force a spouse to testify for the defense?

No. The testimonial privilege applies whether the proposed testimony would favor the defendant or the Commonwealth. A spouse called by the defense may invoke the privilege and decline to testify.

Does the privilege apply if the couple married after the alleged incident?

It can. The testimonial privilege depends on whether the couple is legally married when testimony is sought, not whether they were married when the alleged incident occurred.

The separate communications disqualification is different. It protects only qualifying private conversations made during the marriage, not conversations that occurred before the wedding.

Does separation end spousal privilege?

No. Living apart or filing for divorce does not itself end the legal marriage. A separated spouse may still invoke the testimonial privilege while the marriage remains valid.

The facts of the separation can still affect whether a particular conversation was reasonably private and whether a constitutional exception applies.

Does spousal privilege continue after divorce?

The testimonial privilege generally ends when the marriage ends because it depends on a current marriage when testimony is sought.

The communications rule looks to whether the parties were married when the conversation occurred. A former spouse may therefore remain disqualified from recounting a qualifying private oral conversation made during the marriage, subject to the rule’s exceptions.

Does Massachusetts recognize spousal privilege for dating partners or fiances?

No. Massachusetts recognizes no equivalent spousal testimonial privilege for an unmarried dating partner, fiance, or cohabitant. A 209A order may cover people in those relationships, but the protective-order law and the rules of evidence answer different questions.

See Massachusetts 209A abuse prevention orders for the relationship requirements and hearing procedure under Chapter 209A.

Private Conversations and Written Messages

What is a private marital conversation?

A private marital conversation is an oral exchange between spouses during a valid marriage in circumstances in which the conversation was private. The judge decides privacy from the setting, who was present, what another person could hear, and related facts.

The rule protects the contents of a qualifying conversation. It does not necessarily prevent testimony that a conversation occurred or that a spouse took an action afterward.

Are text messages between spouses protected by Section 20?

A spouse should not assume that § 20, First protects text messages. The Supreme Judicial Court has held that written communications fall outside the statutory term “private conversations,” and the Massachusetts Guide to Evidence states that written communications are not included. Commonwealth v. Szczuka, 391 Mass. 666, 678 n.14 (1984).

No published Massachusetts appellate decision has squarely decided whether a spousal text exchange is a “conversation” under § 20, First. The statutory language and existing authority give the Commonwealth a direct argument that texts are unprotected writings. A text must still be authenticated and satisfy the hearsay and constitutional rules. See digital evidence in Massachusetts criminal cases.

Are emails or letters between spouses protected?

Not by the marital-communications disqualification merely because they were confidential. In Commonwealth v. Szczuka, the Supreme Judicial Court stated that written communications were outside § 20, First. The writings may still face authentication, hearsay, search-and-seizure, or other evidentiary objections.

Is a voice message or recorded call protected?

The answer depends on how the recording was created, the nature of the communication, and the purpose for which it is offered. A voice message should not automatically be treated as either a protected live conversation or an unprotected writing.

A secretly recorded conversation can also raise a separate question under the Massachusetts wiretap statute. A police search of the device or account raises the separate rules governing phone and computer searches.

Does telling someone else about a marital conversation waive the protection?

Later disclosure by a spouse does not by itself change the private character of the original conversation. Commonwealth v. Garcia, 476 Mass. 822 (2017).

That rule does not protect a conversation that was never private in the first place, and it does not prevent a third person who personally overheard the original conversation from testifying to what that person heard.

Is a conversation private if a child was present?

The child’s presence does not create 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. Commonwealth v. Stokes, 374 Mass. 583 (1978).

Can a spouse testify about conduct without repeating a conversation?

Yes. Section 20, First governs qualifying private conversations. It does not generally prevent a spouse from describing conduct, an injury, an event, or an action taken after a conversation.

Words that constitute or accompany abuse, threats, or an assault on the spouse are also outside the protected category. In a criminal case alleging a crime against the other spouse, the statute contains an independent exception to the communications disqualification.

Criminal and Domestic Violence Cases

Can a spouse refuse to testify in a Massachusetts domestic violence case?

In an adult criminal case, a person who remains legally married to the defendant may ordinarily invoke the testimonial privilege and decline to testify, subject to the statutory exceptions. Only the witness-spouse can make that choice.

The marriage does not prevent the Commonwealth from continuing the domestic violence prosecution with other admissible evidence.

If the spouse chooses to testify, are private conversations excluded?

Not in a criminal proceeding alleging that one spouse committed a crime against the other spouse. Section 20, First expressly excepts that proceeding from the marital-communications disqualification.

This produces the central distinction in an adult domestic violence case: the witness-spouse may choose not to testify, but if the spouse testifies, § 20, First does not bar private marital conversations on that ground.

Does the same rule apply to a restraining-order violation?

Section 20, First contains an exception for a criminal proceeding alleging that one spouse violated a qualifying vacate, restraining, or no-contact order obtained by the other spouse. The court must still address the separate testimonial privilege, hearsay, authentication, and confrontation questions.

The elements and penalties for that charge appear on the page about violating a 209A abuse prevention order.

Does child abuse create an exception?

Yes. The child-abuse exception applies to both spousal protections and includes incest. It is not limited to abuse of the couple’s own child and applies in criminal as well as civil child-abuse proceedings.

Will the case be dismissed if the spouse refuses to testify?

Not automatically. The Commonwealth may rely on admissible 911 calls, police observations, body-worn camera recordings, photographs, medical records, messages, or statements to another witness. Each item must satisfy the rule governing that evidence.

The standards for ending a prosecution over the Commonwealth’s objection appear on how criminal cases get dismissed in Massachusetts.

Can the Commonwealth use what the spouse said before trial?

Possibly. The testimonial privilege governs compelled live testimony. It does not itself exclude every earlier statement. The Commonwealth must establish a hearsay exception, and testimonial statements remain subject to the Confrontation Clause.

The exception litigated frequently in domestic violence cases is the excited or spontaneous utterance exception. Whether a 911 call or police statement qualifies depends on the circumstances surrounding that particular statement.

What happens if the spouse recants?

A spouse’s recantation does not require the Commonwealth to dismiss the case. Prosecutors may compare the recantation with the 911 call, police report, body-worn camera footage, messages, photographs, and other evidence. Read more about recantation in Massachusetts domestic violence cases.

Can the defendant ask the spouse not to testify?

A defendant should not contact a spouse or complaining witness about testimony, a subpoena, a request to recant, or a pending criminal case. The contact may violate a no-contact order, support forfeiture by wrongdoing, or create a separate witness-intimidation charge.

Necessary communication about children or property must comply with every court order. Counsel can determine whether and how lawful communication may occur.

What is forfeiture by wrongdoing?

Forfeiture by wrongdoing prevents a defendant from intentionally making a witness unavailable and then relying on that unavailability to exclude the witness’s prior statements. The Commonwealth must prove by a preponderance of the evidence the witness’s unavailability, the defendant’s involvement in procuring it, and the intent to make the witness unavailable.

Marriage by itself does not establish forfeiture. A marriage entered into or used as part of an agreement to prevent testimony can support the claim when the required intent is proven. Commonwealth v. Szerlong, 457 Mass. 858 (2010).

Grand Jury and Court Procedure

Can a spouse refuse to testify before a grand jury?

The § 20, Second testimonial privilege does not apply before a grand jury. Matter of a Grand Jury Subpoena, 447 Mass. 88 (2006).

The separate marital-communications disqualification can still restrict testimony about a qualifying private conversation unless an exception applies. A spouse who receives a grand-jury subpoena should obtain legal advice before appearing or producing records.

How does a spouse invoke the testimonial privilege?

The judge ordinarily conducts a hearing outside the jury’s presence and asks whether the witness-spouse wishes to invoke the privilege. The spouse need not explain the reasons for that decision.

The jury should not hear argument or comment inviting an adverse inference from the invocation. A pretrial motion can alert the judge to the anticipated issue, but counsel should preserve the position when the witness is called and when evidence is offered.

Can a judge raise the marital-communications rule without either spouse requesting it?

The communications rule is an evidentiary disqualification rather than a personal privilege belonging only to a spouse. A judge may identify the rule, and counsel should still make a timely and specific objection to preserve the issue.

If no one objects, the court may admit the conversation and consider it for its full evidentiary value.

What information does a lawyer need to evaluate the claim?

Counsel needs the date of the marriage, the present marital status, the exact proposed testimony, the form of the communication, the date and location of the exchange, the people who were present, the charge or proceeding, and any order governing contact between the spouses.

For digital evidence, counsel also needs the original device or account information, the complete conversation rather than selected screenshots, and the warrant, consent record, or other authority police used to obtain it.

Representation by Serpa Law Office

How does Attorney Serpa address spousal-privilege evidence?

Attorney Serpa separates the witness-spouse’s testimonial choice from the admissibility of oral conversations, written messages, recordings, prior statements, and conduct. He uses motions in limine and hearings outside the jury’s presence to obtain rulings before the jury hears disputed evidence where the procedure permits it.

He also examines the separate authentication, hearsay, Confrontation Clause, device-search, wiretap, and forfeiture questions that can remain after a spouse invokes the testimonial privilege.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. Serpa Law Office can be reached at 617.936.0201 for a free and confidential consultation. The Boston office is at 20 Park Plaza, Suite 400A. The Quincy office is at 500 Victory Rd., Suite 400A.

Related Serpa Law Office Resources

• Massachusetts Spousal Privilege and Marital Communications
• Rights and Legal Concepts in a Massachusetts Criminal Case
• Boston Domestic Violence Defense Lawyer
• Massachusetts Domestic Violence Law FAQs
• Excited and Spontaneous Utterances in Massachusetts
• Digital Evidence in Massachusetts Criminal Cases
• Phone and Computer Searches in Massachusetts
• Massachusetts 209A Abuse Prevention Orders
• How Massachusetts Domestic Violence Charges Are Prosecuted and Resolved