For many misdemeanor infractions in Massachusetts, the police officer may not arrest you for a crime that was not seen by law enforcement first hand. Also, the police may not arrest you for many motor vehicle violations. Instead of being arrested and arraigned (the first way to initiate a criminal case in the state), you could have a ‘show cause hearing,’ better known as a clerk magistrate’s hearing.
In this situation you will receive a notice to appear for a show for cause hearing rather than being place under arrest. Massachusetts General Laws Chapter 218 (Malegislature.gov) states a police officer is required for most misdemeanor charges to ask the court to inform you before the criminal complaint is filed. If this is done, you have a legal right to a clerk magistrate’s hearing before you are allowed to be formerly, criminally charged in district court.
If you have gotten a notice to show up for a Massachusetts clerk magistrate’s hearing, it is important to take full advantage of this excellent opportunity to avoid a criminal case from showing up on your criminal record in Massachusetts (CORI).
Exceptions to a Right to a Massachusetts Clerk Magistrate’s Hearing
Massachusetts General Laws Chapter 90, Section 21 (Malegislature.gov) notes some exceptions to having a right to such a hearing. It is legal to be immediately arrested for DUI and for reckless operation with serious bodily injury. Also, the law states if there is imminent threat of bodily injury, of the commission of a crime, or flight from the state by the person.
What Happens At The Hearing
The clerk’s hearing is your first chance to stop the criminal complaint in its tracks and to have the court dismiss your case before you are even formally charged in district court. If you prevail at the clerk magistrate’s hearing, there is never a record of the criminal accusation on your criminal record. This is a great chance to dismiss a case no matter if you are being accused by a civilian or a police officer. It is also why you want to have a good attorney with you at your clerk’s hearing.
When you first arrive at the hearing, you should speak to the clerk at the magistrate’s office, unless there is a notice or sign at the courthouse that says you should do something else.
The hearing is typically conducted by the clerk magistrate, or by the assistant. Keep in mind that in the magistrate hearing, formal evidence rules do not apply. The police department will give its evidence to support the charges against you. At this point, you can then tell the magistrate why you do not think you were responsible. You also can offer evidence that provides support for your view.
The clerk’s hearing is not as formal as hearings before the judge in district court. But remember they still are serious legal proceedings and you will need an experienced criminal defense attorney to help you with your defense.
Some of the evidence that you and your attorney can supply to show that the case against you should not proceed include:
- Pictures: If you have photos that show you did not commit a crime or that another party did, this evident can be very helpful to have charges never brought against you.
- Documents: If you have documents that prove no crime was committed, this can be strong evidence in your favor.
- Witnesses: Statements from reliable witnesses could exonerate you.
Three Possible Outcomes for Clerk Magistrate Hearing
- If the clerk thinks probable cause is present, there will be a complaint charging you with a crime.
- If the clerk thinks there is no probable cause, the application for the complaint will be dismissed.
- The clerk may opt to hold the application; it will not be dismissed right away, but will hold it up to a year, and dismiss it there are no further allegations.
After you have presented all of your evidence, the magistrate then makes a decision. Note that if you were cited just for a civil violation, the magistrate decides if the police department has provided enough proof for each civil violation. The police must provide a preponderance of the evidence, or whether it is more or less likely that you committed the violation. If so, the magistrate then will find that you are responsible for that violation. If not, the magistrate will find that you are not responsible for that violation.
Note that you do NOT have a right to a jury trial for a civil violation
If you were cited for a criminal violation, the magistrate has to decide if there is probable cause to issue a criminal complaint against you. If the magistrate does issue a criminal complaint, you will have the right to have a trial by judge or jury to plead guilty. A grand jury can then be called.
Does Citing Officer Need to Be Present?
A common question is whether the citing officer needs to be present at your magistrate hearing in Massachusetts. The answer to this is no. The citing officer is not required to be present or to testify. Rather than the citing officer, the police department may choose to provide a copy of the citation or the police report as evidence against you
If you only were cited for a civil violation, Massachusetts law states that the citation alone is enough for evidence against you. However, the citation alone is not conclusive. If the citing officer does not appear, and no other police representative appears and you do show up, the magistrate will find that you are not responsible for any civil violation, and will also deny any criminal complaint.
If you only were cited for a civil violation, and the citing officer and no other police officer comes to the magistrate hearing, and YOU also do not show up, your request for a hearing will be denied. You will need to pay the citation as written.
If you are found responsible for a civil violation, the magistrate usually will impose the fine that is one the citation. For a speeding violation, the magistrate is required to impose the scheduled assessment. This is $50 plus $10 for each mile per hour over the limit.
So What's Next
While these hearings seem informal, this is a vital step in criminal proceedings. Your goal at this vital hearing is to show the magistrate there is not enough evidence to make it more likely than not that you committed a crime. So, if you are going to a Massachusetts Clerk Magistrate hearing in Massachusetts you need to have a strong, skilled and experienced defense attorney working for you. This is your big opportunity to prevent criminal charges from appearing on your record. Take advantage of it. For a legal consultation, please contact Attorney Geoffrey Nathan at (617) 472-5775.
- Commonwealth of Massachusetts General Laws. (n.d.). Retrieved from https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleI/Chapter218
- Commonwealth of Massachusetts General Laws. (n.d.). Retrieved from: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXIV/Chapter90/Section21