NOT GUILTY: Domestic Assault and Battery Acquittal After Victim Recants Under Oath
How cross-examination and evidence exposed the flaws in an excited utterance prosecution
June 9, 2026 | Criminal Defense | Attorney Michael P. Murray
On Monday, June 8, 2026, a Massachusetts jury returned a verdict of NOT GUILTY in Commonwealth v. [Defendant], Docket No. 2448 CR 1524. My client had been charged with Domestic Assault and Battery — a charge that carries serious consequences including potential jail time, a permanent criminal record, and the loss of constitutional rights.
The Commonwealth took this case to trial. The jury heard all the evidence. And they found my client not guilty.
Here’s why.
The Commonwealth’s Strategy: Prosecuting Without a Cooperative Victim
Domestic assault cases present a unique challenge for prosecutors: the alleged victim often does not want to cooperate. Whether due to reconciliation, fear of consequences, or recognition that the original allegations were exaggerated or false, many alleged victims ask prosecutors to drop the charges.
Prosecutors rarely do.
Instead, they rely on exceptions to the hearsay rule — particularly the excited utterance exception — to introduce the alleged victim’s statements to police without requiring her to testify consistently at trial. The theory is that statements made in the immediate aftermath of a traumatic event are inherently reliable because the person has no time to fabricate.
In this case, the Commonwealth proceeded on exactly that theory. They planned to convict my client based on what the alleged victim told responding officers at the scene — regardless of what she might say at trial.
Our Defense: Undermining the Foundation of the Excited Utterance
We attacked the Commonwealth’s case on multiple fronts:
1. The Alleged Victim Was Highly Intoxicated
During cross-examination, we elicited testimony from the responding officers that the alleged victim was highly intoxicated at the time she made her statements. This matters because the excited utterance exception assumes the declarant is reacting to a startling event — not that she is impaired by alcohol to the point where her perceptions and statements are unreliable.
An intoxicated person’s excited utterance is not more reliable than her sober testimony. It’s less reliable.
2. The Photos Showed No Injury
The Commonwealth introduced photographs taken at the scene. They intended these photos to support the allegations. Instead, they supported the defense.
The photos showed no visible injury — no bruising, no redness, no marks of any kind consistent with an assault and battery. If my client had committed the assault described in the original allegations, there would have been evidence of it. There wasn’t.
3. The Alleged Victim Recanted — Sober, Under Oath, Against Her Own Interest
At trial, the alleged victim took the stand and recanted all of her statements to the police.
This was not a reluctant witness mumbling “I don’t remember” to avoid helping either side. She affirmatively testified that her original statements were not accurate. She did so:
Sober — unlike when she made the original statements
Under oath — subject to penalties of perjury
Against her own penal interest — admitting she made false statements to police exposes her to potential criminal liability
Subject to cross-examination — the Commonwealth had every opportunity to challenge her credibility
The jury was left with a choice: believe the intoxicated statements made to police at the scene, or believe the sober, sworn testimony given in open court. They chose correctly.
The Takeaway: Excited Utterance Is Not a Magic Wand
Prosecutors often treat the excited utterance exception as an automatic ticket to conviction in domestic cases. It isn’t.
The exception requires that the statement be made while the declarant is under the stress of the exciting event and before she has time to fabricate. But when the declarant is intoxicated, when the physical evidence contradicts her allegations, and when she recants under oath at trial — the foundation of the exception crumbles.
My client walked out of court a free man with no criminal record because we held the Commonwealth to its burden. Accusations are not evidence. Intoxicated statements are not proof. And a recantation under oath — sober, against penal interest, and subject to cross-examination — is powerful evidence of innocence.
Facing Domestic Assault Charges in Massachusetts?
If you’ve been charged with domestic assault and battery, you need an attorney who understands how to attack the Commonwealth’s case at every level — from the reliability of the original statements to the physical evidence to the credibility of witnesses at trial.
Call the Law Office of Michael Patrick Murray, P.C. at (508) 393-4162 for a free consultation.
Attorney Michael P. Murray, defends clients facing domestic violence charges throughout Worcester County and Massachusetts. Results vary by case. Prior outcomes do not guarantee future results.