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Massachusetts Domestic Assault and Battery crimes: How are they prosecuted without the victim’s cooperation

How are Massachusetts Domestic Assault and Battery Cases prosecuted without the cooperation of the victim?  The case of Commonwealth v. Roy Rand, decided by the Massachusetts Appeals Court on June 29, 2020 demonstrates how even without the victim testifying, prosecutors in Massachusetts can secure a conviction of domestic assault and battery.  The key piece of evidence is the 911 call which can come into evidence, despite the fact that you will not have the opportunity to cross examine the victim if the Court defines the call as non-testimonial.  The Rand cases discusses what makes a statement admissible under this rule and under the Sixth Amendment to the United States Constitution.  


The defendant was charged with Strangulation and Domestic Assault and Battery.  The case was indicted and brought to the Superior Court.  This means that the incident must have been particularly vicious and or the defendant had a bad record as most Strangulation cases would stay in district court.  

The defendant was charged with Strangulation in Violation of G.L. c. 265 Section 15D and domestic assault and battery in violation of Chapter 265 Section 13A.  The victim, like in most domestic assault and battery cases was not cooperating with the Commonwealth.  However, the Commonwealth prosecuted the case using the 911 call.  

At trial, the trial judge permitted the Commonwealth to play the 911 call in its entirety.  On Appeal, the Massachusetts Court of Appeals found it was an error to allow the entire 911 call into evidence.  However, the Appeals Court did rule that part of the call was admissible.  The beginning part of the call was allowed into evidence which typically id the most damaging part of the call for the defendant.  

  • What guidance did the Appeals Court provide as to when a 911 call is admissible in evidence at trial?  

The Appeals Court stated that the Court engages in a two step inquiry to determine when an out of court statement can be admitted:  

  1. Whether the statement is admissible under the rules of evidence; 
  2. Whether the admission of the statement would violate the defendant right of confrontation.  

The Appeals Court reviewed the law on whether statements are testimonial versus non testimonial. 

The Court stated that statements are non testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police to respond to an ongoing emergency.  If however, there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove a paste event relevant to criminal prosecution, the statements are testimonial.  


The Massachusetts Supreme Judicial Court, interpreting the United States Supreme Court decision in Michigan v. Bryant, held that the touchstone of confrontation clause analysis is whether the primary purpose of the defendant’s out-of-court statement is intended to prove past events potentially relevant to criminal prosecution.  

The Court stated that the existence of an ongoing emergency is one factor but an important factor. 

Other factos include:  

  1. The formality of the statement; 
  2. The nature of the statements and actions of both the declarants and interrgators; 

The determination of an ongoing emergency is objective and highly context-dependent according to the Court.  The existence and duration of the emerency depends on the type and scope of the danger posted to the victim, the police and the public.  Factors bearing on the existence of an ongoing emergency include:  

  1. Whether the defendant is armed
  2. The type of weapon employed 
  3. The severity of the victim’s injuries or medical condition 

The SJC said thus the potential scope of the ongoing emergency could contribute to the length of the emergency; The Commonwealth  bears the burden of proving the facts necessary to determination of admissibility by a preponderance of the evidence.  

Factors that distinguish testimonial statements from non testimonial statements:  

  1. Whether the declarant was speaking about an event as they were actually happening rather than describeng past events
  2. Whether any reasonable listener would recognize that the declarant was facing an ongoing emergency rather than to simply learn what happened in the past.  
  3. The level of formality of the interview.  

Was the initial Statement to the Dispatcher Admissible into Evidence 

The Appeals Court said that the initial statement, identifying the defendant and saying he beat her up was non-testimonial. 

Statements in response to dispatcher asking what happened were testimonial.  

The Appeals Court held that the call returned to a non-testimonial topics when the dispatcher asked about the victim’s medical condition and to prepare the first responders.  The Court would allow in statement that the defendant needed medical attention and her sister left the scene.  

The Appeals Court in Roy found that once the police arrived at the scene there was no ongoing emergency and those statements were all testimonial.  

Massachusetts Criminal Defense Lawyers need to object and make Confrontation Clause arguments under the Sixth Amendment and Article 12

As Massachusetts criminal defense lawyers, it is important to object to the initial statement coming into evidence without the right to confront the witness.  The primary purpose test is a result oriented test that will allow the initial statement into evidence in most cases.  This initial statement is typically the strongest statement and may be all the prosecutor needs to prove the case; the fact that other corroborating statements are found to be testimonial, may not help the client when the jury hears the initial statement from the call.  With changes in the United States Supreme Court, the Sixth Amendment is one area where defendant may obtain a greater right to confrontation as Judges who adopt a textualism judicial philosophy general favor reading the Sixth Amendment as it is written that the defendant has the right to confront his or her accuser in Court.  The Primary purpose analysis of the Michigan v. Bryant case turns that logic on its head as Justice Scalia wrote in his dissenting opinion:   That the virtue of the Court’s test is that judges can reach the fairest result under the circumstances and manipulate the test to achieve the desired result.  Justice Scalia stated that the Court’s distorted view creates an expansive exception to the Confrontation Clause for violent crimes.  The late Justice Ginsburg joined Justice Scalia dissenting opinion finding the decision undermines the right of confrontation.  As criminal defense lawyers, it is important to continue to try to move the court back toward the original meaning of the Sixth Amendment.  If Amy Coney Barrett is confirmed to the United States Supreme Court, she could move the Court toward a greater right of confrontation as

she was a former law clerk to Justice Scalia and shares his judicial philosophy so in this area of the law.

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