The Law of Clerk-Magistrate Hearings in Massachusetts: Your Rights, the Statutes, and Case Law

In Massachusetts, a clerk-magistrate hearing, also called a show cause hearing, is a pre-arraignment procedure designed to determine if there is sufficient probable cause to issue a criminal complaint. The primary purpose of these hearings is to allow the court clerk to screen some criminal matters out of the justice system.

Defendants facing allegations in Eastern Massachusetts have critical window to intercept a charge before it becomes a permanent public record. Serpa Law Office routinely defends clients in clerk-magistrate hearings across the region, including Boston Municipal Court Central, Boston Municipal Court Brighton, Boston Municipal Court Charlestown, Boston Municipal Court Chelsea, Boston Municipal Court Dorchester, Boston Municipal Court East Boston, Boston Municipal Court Roxbury, Boston Municipal Court South Boston, Boston Municipal Court West Roxbury, Quincy District Court, Brookline District Court, Dedham District Court, Stoughton District Court, Cambridge District Court, Waltham District Court, Somerville District Court, Newton District Court, Malden District Court, Woburn District Court, Framingham District Court, Concord District Court, Natick District Court, and Hingham District Court.

The Statutory Right to a Hearing: Misdemeanors vs. Felonies

The right to a show cause hearing is governed largely by Massachusetts General Laws Chapter 218, § 35A.

• If an individual is accused of a misdemeanor that was not committed in the presence of a police officer, and they were not arrested, they are generally entitled to a show cause hearing prior to an arraignment.
• This statutory requirement does not apply if the accused has already been arrested for the allegations, or if the magistrate at the request of police determines there is an imminent threat of bodily injury or a risk of flight.
• Individuals are not automatically entitled to a show cause hearing if the charges include a felony.
• For felony applications brought by a law enforcement officer, the magistrate is only required to schedule a show cause hearing if the officer specifically requests one.

A Uniform Motor Vehicle Citation Also Creates a Right to a Clerk Magistrate Hearing

Traffic stops often lead to criminal clerk-magistrate hearings if the police do not to make an arrest.

• A Massachusetts Uniform Citation may be used as notice to a clerk magistrate hearing for most motor vehicle crimes. The police are not permitted to make arrests for most motor vehicle crimes. Drunk driving (OUI) and operating with a suspended license are notable exceptions.
• All motor vehicle offenses must begin with a criminal uniform citation and the right to a clerk magistrate hearing if there was no arrest. This is true even if the offense was an offense that can end in an arrest, like an OUI. Sometimes, the police do not arrest a person in an OUI case, most often if they are transported to the hospital from the scene of a crime or if they are no longer present at the scene.
• In these cases, a uniform criminal citation is mandatory. If you do not receive one, a judge can dismiss your case on a motion to dismiss under the Massachusetts “no-fix” law.
• If a police officer issues you a citation and checks the criminal offense (“crim”) box and the “Criminal Application” box, you have the right to a clerk magistrate hearing.
• You have four days to submit the criminal citation to the applicable District Court to request your Clerk Magistrate hearing of a motor vehicle crime. The correct court and address must appear on the face of your citation. A complaint will issue against you if you do not request a clerk magistrate hearing at the correct district court.

Presenting Evidence and Cross-Examining Witnesses at Clerk Magistrate Hearings

Show cause hearings are considerably more informal than traditional court proceedings.

• The magistrate’s primary role is to determine if “probable cause” exists.
• Probable cause is a low standard, requiring only sufficient evidence to establish that a crime was committed.
• Nevertheless, clerk magistrates can and often decline to issue the complaint even where probable cause has been established. This is a common outcome for many offenses.
• The Supreme Judicial Court ruled in Commonwealth v. DiBennadetto that the standard is met if the evidence establishes probable cause for an arrest.
• The rules of criminal procedure do not apply in these hearings. Hearsay evidence is usually the only evidence in a clerk magistrate hearing.
• An accused person has the right to be represented by an attorney, to present relevant evidence, and to call witnesses. The Supreme Judicial Court noted that “[u]nreasonable restrictions on the opportunity to present witnesses can be tantamount to the denial of the right of a hearing.”
• However, you have no constitutional right to cross-examine witnesses at a show cause hearing, although it is encouraged. However, excluding defense evidence that merely contradicts the complainant’s testimony will not warrant a dismissal unless that excluded evidence would have completely undercut the testimony, as seen in Commonwealth v. Irick.

Privacy and Public Access

Unlike most criminal court events, clerk-magistrate hearings are shielded from public view.

• The hearings are not generally conducted in a courtroom, but rather in a private meeting room or the clerk’s office.
• There is no public record of the hearing itself.
• If the magistrate decides there is no probable cause and dismisses the application, the records generated are not public, and no searchable criminal record is created.
• Alternatively, the clerk may hold the application in abeyance (a private, pending statees) for a certain period of time (such as six months) and then dismiss the case privately if there are no new criminal accusations in the interim.

Notice Requirements: What If You Don’t Get Notice?

Proper notice is critical of course. When a hearing is scheduled, the court will send a notice via mail along with a copy of the application for the complaint.

If a criminal complaint is issued against you without you ever receiving notice or an opportunity for a hearing under G.L. c. 218, § 35A, you have legal remedies:

• You can challenge the issuance of the complaint by filing a motion to dismiss.
• To succeed, you must present evidence by way of an affidavit proving that the complaint was issued without an opportunity for a show cause hearing, that the offense one for which a clerk magistrate hearing is required, that you were not arrested, and that none of the statutory exceptions applied.
• If the judge allows the motion, under in Commonwealth v. Lyons and Commonwealth v. Tripolone, the complaint will be dismissed without prejudice. This means it can be refiled so a proper show cause hearing can be scheduled.
• Additionally, if you miss a scheduled magistrate’s hearing for a traffic ticket due to an emergency or a good reason beyond your control, you can still file a motion with the court explaining the absence, as the magistrate will otherwise normally issue the criminal complaint and an arrest warrant or summons.

Challenging a Magistrate’s Decision: The DiBennadetto Motion to Dismiss

Sometimes a clerk magistrate incorrectly issues a criminal complaint where there has been no probable cause. Once the complaint is filed, a defendant can file a motion to dismiss under the Massachusetts Supreme Judicial Court’s landmark case of Commonwealth v. DiBennadetto, 436 Mass. 310 (2002). In that case, the Court ruled that a District Court judge cannot conduct a new (de novo) evidentiary hearing simply to second-guess the magistrate’s probable cause determination. Rather, the appropriate and only remedy for the accused is to file a Motion to Dismiss after the complaint has formally issued. 

These motions are known in Massachusetts courts as a “DiBennadetto Motions.” This filing asks a judge to review the legal sufficiency of the complaint. A judge will dismiss the charges if the prosecution failed to present sufficient evidence that there was probable cause presented to the clerk-magistrate. Less commonly, dismissals can occur if the integrity of the clerk magistrate proceeding was fundamentally violated, such as if an officer neglected to present material evidence of innocence. Also, this motion can also be used to secure a dismissal if the magistrate committed a procedural defect during the show cause hearing, such as unreasonably restricting a defendant’s statutory right to present exculpatory witnesses.

In DiBennadetto hearings, a judge cannot conduct a new hearing. They must review only the evidence presented to the clerk magistrate at the original hearing. This is usually achieved by having the judge review the police report only, without considering whether the police report is true and accurate. The real question in a DiBennadetto hearing is whether the facts alleged in the police report, whether true or not, satisfy the elements of the offense a person is accused of.