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Commonwealth v. Gonsalves, A Massachusetts Offshoot Of The Crawford Rule

In many Massachusetts criminal cases, particularly domestic violence cases, a witness asserts a privilege not to testify at a trial. The most common privileges that are asserted are the marital privilege and the privilege against self-incrimination. Simply stated, in most circumstances the government cannot force a spouse to testify against his or her spouse–this is referred to as the marital privilege. Also, a witness cannot be forced to testify if some of the testimony will incriminate him or her.

If the Commonwealth plans to go to trial and cannot call this witness it may try to call a witness that heard the person make the statement that incriminates the client. In this situation the trial attorney must file a motion to exclude the statement of the witness who is reiterating what a non-testifying witness stated. This is generally done as a “Motion In Limine” filed prior to trial. Depending on the court, this can be done on a date prior to the trial date or immediately before trial. One of the seminole cases in this area is Commonwealth v. Gonsalves, 445 Mass. 1 (2005).


This pre-trial motion should maintain that the statements made by the privilege invoking witnesses to a third party are hearsay and are not admissible pursuant to any exception to the hearsay rule. See Commonwealth v. DelValle, 351 Mass. 489, 491 (1966) (“The broad rule on hearsay evidence interdicts the admission of a statement made out of court which is offered to prove the truth of what it asserted”). The introduction of a non-testifying witnesses statement through a third-party violates the defendant’s state and federal constitutional rights to confrontation and due process. See, U.S.C.A. 6th; Massachusetts Declaration of Rights Article XII; Commonwealth v. Brazie, 66 Mass. App. Ct. at 319 citing Douglas v. Alabama, 380 U.S. 415, 418(1965); Commonwealth v. Fordham, 417 Mass. 10, 18(1994) quoting from Davis v. Alaska, 415 U.S. 308, 315-316(1974).

This legal argument is firmly rooted in The Sixth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment to the United States Constitution, which guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” See Commonwealth v. Saunders, 435 Mass. 691, 694 n.4 (2002). The right of confrontation also is protected by Article 12 of the Massachusetts Declaration of Rights which states that in a criminal trial “every subject shall have a right to . . . meet the witnesses against him face to face.” Although, in certain circumstances, “Article 12 may provide a criminal defendant more protection than its Federal counterpart in these types of cases involving the hearsay rule and its exceptions, the Massachusetts Supreme Judicial Court has always held that the protection provided by Article 12 is coextensive with the guarantees of the Sixth Amendment to the United States Constitution.

Prior to the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), confrontation clause jurisprudence sometimes permitted the out-of-court statements of an unavailable witness to be admitted at trial. Admissibility was determined by whether the statements bore “adequate ‘indicia of reliability.'” Ohio v. Roberts, 448 U.S. 56 (1980). To satisfy this standard, the testimony either had to fall within “a firmly rooted hearsay exception” or otherwise bear “particularized guarantees of trustworthiness.”

The Supreme Court’s decision in Crawford rejected the “adequate indicia of reliability” test for out-of-court statements that are “testimonial” in nature. The Crawford case concerned the admission in evidence of a tape-recorded statement made by a wife during a police interrogation while in police custody; the wife did not testify at trial on the ground of marital privilege, and her statement was admitted because it bore guarantees of trustworthiness. In analyzing whether the admission of the statement was constitutionally sound, the Supreme Court relied on a more literal understanding of “the right to be confronted with the witnesses” where testimonial statements are at issue, stating that the confrontation clause commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” The Court concluded that the confrontation clause of the Sixth Amendment prohibits the admission of out-of-court statements that are testimonial in nature unless (1) the declarant is available at trial or (2) the declarant is formally unavailable to testify, and the defendant had a prior opportunity for cross-examination. In Crawford, the Court deemed the wife’s tape-recorded statement made during police interrogation testimonial, and because there had been no cross-examination of the declarant, the confrontation clause of the Sixth Amendment barred its admission. Id.

In Crawford, the Court declined to articulate a precise and comprehensive definition of “testimonial” statements, leaving that effort for another day. See Crawford v. Washington, supra. However, in considering the historical underpinnings of the confrontation clause, the Court opined that, broadly speaking, a witness’s out-of-court statement was testimonial if it was a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. at 51, quoting Webster’s American Dictionary of the English Language (1828). The Court then proceeded to announce that certain statements are always considered to be testimonial. At a minimum, “testimonial” statements include “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and [statements made during] police interrogations.” Id. at 68. Such statements are per se testimonial and no further analysis is necessary. Commonwealth v. Gonsalves, 445 Mass. 1 (2005).

One of the lead Massachusetts cases in this area is Commonwealth v. Gonsalves, 445 Mass. 1 (2005). In Gonsalves, the Massachusetts Supreme Judicial Court explained that questioning by law enforcement agents, whether police, prosecutors, or others acting directly on their behalf, other than to secure a volatile scene or to establish the need for or provide medical care, is interrogation in the colloquial sense. This includes investigatory interrogation, such as preliminary fact gathering and assessment whether a crime has taken place. There can be no doubt that interrogation involving preliminary fact finding is part of a criminal investigation. Statements elicited by such interrogation are per se testimonial and therefore implicate the Confrontation Clause. No further analysis is needed. The statements are inadmissible unless the declarant testifies at trial or formally is unavailable and was previously subject to cross-examination. Commonwealth v. Gonsalves, 445 Mass. 1 (2005).

Alternatively, in the event that the Court determines that a proposed statement is not “testimonial per se”, an attorney should argue that it would be “testimonial in fact” as a reasonable person in the declarant’s position would anticipate the statement’s being used against the accused in investigating and prosecuting the crime. Crawford v. Washington, 541 U.S. 36 (2004). I

These types of motions are typically filed in cases of domestic assault and battery and assault and battery although there are other situations which may require them to be litigated. Our Attorney has been practicing criminal law for over two decades and routinely fights for the rights of her clients in a Massachusetts courtroom. If you have been charged with a crime contact Our Attorney or on-line and she will get back to you immediately.