Clerk-Magistrate's Hearings in Massachusetts

Massachusetts Application for a Criminal Complaint and Notice to Appear for a Clerk-Magistrate's Hearing or a Massachusetts Show Cause Hearing

If you receive a notice to appear for a Massachusetts clerk-magistrate's hearing, or a Massachusetts show cause 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."

In the Massachusetts district (or municipal) court, your criminal case can begin in two ways.  First, you can be arrested and brought to court for an arraignment. A police officer can arrest you if he or she witnesses an alleged misdemeanor involving a "breach of the peace," or a felony.  Comm. v. Gorman, 288 Mass. 294, 192 N.E. 618 [1934]; Comm. v. Mitchell, 353 Mass. 426, 233 N.E. 2d 205 [1967].

Massachusetts Misdemeanor Arrests

However, a police officer may not arrest you for a misdemeanor that the officer did not witness firsthand, with a few exceptions. If there is a warrant for your arrest for failure to appear in court, an officer can arrest you for a misdemeanor accusation. 

Also, certain specific criminal laws in Massachusetts allow arrests for misdemeanor offenses committed outside of the officer's presence.  Massachusetts General Laws chapter 276, section 28 allows a police officer to arrest you for several domestic violence misdemeanors committed outside of the officer's presence.  Massachusetts General Laws chapter 276, section 28 also allows a misdemeanor arrest for offenses involving or restraining order violations even if the officer didn't see the event.

Massachusetts Show Cause Hearings 

The second way to begin a criminal case is by way of a "show cause hearing" or a "clerk magistrate's hearing" in the Massachusetts district or municipal court.  In these cases, you will receive a notice to appear for a show cause hearing instead of being arrested.  Under Massachusetts General Laws chapter 218, section 35A a police officer must, for most misdemeanors, first ask the court to notify you before a criminal complaint is filed against you. If the officer does this, you have the right to a clerk’s hearing, or a clerk magistrate’s hearing, before you can be formally charged in district court.

Clerk's hearings may also be available for complaints of felonies in the district or municipal court.  A police office may, in his or her discretion, apply for a clerk's hearing of a felony complaint.   If the office 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.

(Felony cases tried in the Massachusetts superior court may also begin in the district court and later be transferred by indictments or probable cause hearings to 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.  

Other Exceptions to the Right to a Massachusetts Clerk's Hearing

Some general exceptions exists in all cases where you would otherwise have a right to a clerk's hearing.  A clerk's hearing is not required for people who are accused of crimes and are not yet arrested, if "there is an imminent threat of bodily injury, of the commission of a crime, or of flight from the commonwealth by the person against whom such complaint is made."  M.G.L. chapter 218, section 35A. In these cases, the person applying for the criminal complaint must ask specifically that no clerk's hearing occur under one of these exceptions.

What Happens at a Massachusetts Clerk's Hearing?

Clerk’s hearings 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 whether your accuser is a police officer or a civilian.

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 even before an arraignment in district 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. In fact, they are a key opportunity to prevent your criminal cases from ever making its way into court. An accuser will be there to testify about what you are alleged to have done. You have the right to, and should, present your own evidence and bring your own witnesses. Clerk’s hearings are also an opportunity for a talented lawyer to negotiate with 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.