Clerk Magistrate Hearings in Massachusetts
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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."
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." A police officer can also arrest you if there is an arrest warrant for, or if the officer witnesses, any felony.
The police may not arrest you for any misdemeanor unless it involves a "breach of the peace" witnessed by the officer, or if it is a domestic violence offense or certain driving offenses (see below).
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. For the difference between a felony and a misdemeanor in Massachusetts, see our explanation here.
Either way, if you are not arrested, you will receive 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).
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.Massachusetts Misdemeanor Arrests vs. Clerk's Hearings
Again, 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 that misdemeanor accusation.
Likewise, a police officer may not arrest you for MOST motor vehicle offenses. General Laws chapter 90, section 21 creates a couple of exceptions. 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 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.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.Massachusetts Show Cause Hearings
How will my criminal case begin if I was not arrested?
The second way to begin a criminal case is with 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 if the court accepts the civilian application for a criminal complaint.
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 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 case 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.