Clerk Magistrate Hearings in Massachusetts
If you receive a notice to appear for a "magistrate's hearing on a complaint application," also known as a Massachusetts show cause hearing or a clerk's hearing, you should take advantage of this very powerful opportunity to prevent a criminal case from ever appearing on your Massachusetts criminal record or "CORI." Read below for advice on how to respond to your notice to appear for a clerk magistrate hearing in Massachusetts.
Arrests, Arraignments and Clerk's Hearings
In the Massachusetts District Court or Boston Municipal Court, your criminal case can begin in two ways. First, you can be ARRESTED. Second, you can receive a NOTICE TO APPEAR in court by mail.
If your notice is by mail, your first appearance will be either for a clerk magistrate hearing or for an arraignment.
- Arrest: If you are arrested, you must be brought to court for an arraignment within 24 hours (weekends excluded). A police officer can arrest you only under three limited circumstances. Arrests can occur for any felony charges. Arrests can also occur if a police officer witnesses an alleged misdemeanor involving a "breach of the peace" or certain driving or domestic violence offenses. Finally, a police officer can also arrest you if there is an arrest warrant.
You may not be arrested for any other misdemeanor offense. In felony cases, a police officer can also choose not to arrest you and instead to give you notice to appear for a clerk's hearing in a felony accusation. The officer can also elect to skip the clerk magistrate hearing and schedule your case for an arraignment. The court will send you a notice by mail to appear in either case. For the difference between a felony and a misdemeanor in Massachusetts, see our explanation here.
Again, a police officer cannot arrest you for a misdemeanor that the officer did not witness firsthand, with a few exceptions. The most common exceptions are some driving offenses and domestic violence offenses. You can be arrested for drunk driving, ("OUI" or Operating Under the Influence in Massachusetts) and for reckless operation where there was serious bodily injury, for example. Also, certain specific criminal laws in Massachusetts allow arrests for misdemeanor offenses committed outside of the officer's presence. Massachusetts General Laws allows a police officer to arrest you for several domestic violencemisdemeanors committed outside of the officer's presence or for offenses involving a 209A abuse prevention order violation, more commonly known as a restraining order violation.
- Notice by Mail: Either way, if you are not arrested, the court will mail you a notice to appear for a clerk magistrate's hearing for all other misdemeanors (and for felonies that the police officer elects to proceed by clerks hearing), or a notice to appear for arraignment.
For Massachusetts motor vehicle offenses, the procedure is a little different. Your Uniform Motor Vehicle Citation, or "ticket," is also your ticket to a clerk magistrate's hearing. Here, however, it is your responsibility to deliver the citation to the local district court within FOUR DAYS of receiving the ticket for a criminal motor vehicle offense such as leaving the scene of an accident or reckless operation of a motor vehicle. For an explanation of this process, please see our page HERE.
How Are Massachusetts Clerk Magistrate Hearings Scheduled?
Clerk magistrate hearings begin with a written request by a police officer. The request is called an application for a criminal complaint. When a court receives the request, the court will schedule a "show cause hearing" in the Massachusetts District Court or Boston Municipal Court. In these cases, you will receive a notice to appear for the hearing by mail, again instead of being arrested or going to directly to arraignment. Under Massachusetts General Laws chapter 218, section 35A a police officer must begin your case with a clerk magistrate hearing for most misdemeanors. If the officer does this, the court must give you an opportunity to appear at your hearing before a formal criminal complaint is filed.
Clerk's hearings can also be available for complaints of felonies in the district or municipal court. A police officer may, if she chooses, apply for a clerk's hearing of a felony application for a criminal complaint. If the officer chooses to notify you this way rather than arrest you, the court must hold a clerk magistrate's hearing before a felony criminal complaint can begin against you. See M.G.L. chapter 218, section 35A.
(In the Massachusetts Superior Court, the procedure can be different. These cases may also begin in the district court and later be transferred to the Superior Court. They may also begin with a Grand Jury indictment directly in the Superior Court. We discuss the indictment process here.)
Civilians, people who are not police officers, may also ask the court to charge you with a crime. You will not be arrested cases where civilians apply for criminal complaints. Instead, you will receive a notice to appear for a clerk's hearing in a Massachusetts district court if the court accepts the civilian application for a criminal complaint.
What Happens at a Massachusetts Clerk's Hearing?
Clerk’s hearings are private. They are your opportunity to stop the complaint and have the court dismiss your case before you are formally charged in district court at an arraignment. If you win at a clerk's hearing, there will never be a record of this criminal accusation on your criminal history. You have this opportunity to dismiss your case privately whether your accuser is a police officer or a civilian. Therefore. if you receive a Massachusetts application for a criminal complaint and a notice to appear for a clerk’s hearing, you have an opportunity to have the clerk dismiss your case before an arraignment and a public case in the Trial Court.
The dilemma is that the statements you make at clerk’s hearing can be used against you. This is why you should always have an attorney with you at a clerk’s hearing.
Serpa Law Office’s Boston criminal defense attorney’s office will prepare and investigate your case before appearing at your clerk’s hearing. We will arrange for the testimony of any witnesses that can assist in your defense, and attempt to contact the accusing party to arrive at some resolution or to better understand the accusation.
Clerk’s hearings are less formal than hearings before judges in the district court, but they are still serious proceedings that require an experienced attorney. You can present evidence in your defense. You can review the evidence alleged against you and respond to it. You can also cross-examine the witnesses against you to stop the case from going forward. This is a critical opportunity to prevent your criminal case from ever making its way into court. Clerk’s hearings are also an opportunity for a skilled lawyer to negotiate with the police or your accuser to stop a criminal case before it begins.
Contact us if you have any questions about a pending or possible clerk's hearing at 617.936.0201.