What Happens at a Massachusetts Clerk-Magistrate Hearing

A Massachusetts clerk-magistrate hearing, often called a show cause hearing, occurs before a criminal complaint and arraignment. G.L. c. 218, § 35A gives an eligible person the right to oppose the application for a criminal complaint before a public court case begins. A clerk-magistrate, not a judge, conducts the hearing. Ordinary hearings are presumptively private and follow informal procedures rather than the procedures of a trial.

This page describes each step of the hearing, from the court’s notice through the clerk-magistrate’s decision. The separate page on representation at a Massachusetts clerk-magistrate hearing explains how defense counsel prepares for the hearing and presents the defense. The clerk-magistrate hearing FAQs provide concise answers to individual questions.

1. Read the Notice and Identify the Deadline

The court notice ordinarily identifies the proposed offense, the applicant, and the date, time, and location of the hearing. The applicant is often a police department, but may be a private person. The court sends the notice after a police officer or private person applies for a criminal complaint. No complaint or formal charge exists merely because the notice arrived.

No arraignment or Criminal Offender Record Information (CORI) entry exists merely because of the application, notice, or hearing. A police report, citation, school record, licensing record, or agency record may nevertheless exist. The firm’s show cause notice guide explains what to do after the notice arrives.

G.L. c. 90C, § 3 sets a separate four-day deadline for a person who receives a criminal motor-vehicle citation. A person accused of a motor-vehicle misdemeanor with no accompanying felony must request the hearing in writing within four days of the violation. The request goes to the clerk-magistrate for the district where the alleged offense occurred. The firm’s criminal motor-vehicle citation guide explains how to make the written request.

2. Review the Proposed Charge and Available Materials

Defense counsel begins preparation with the elements of the proposed offense rather than a general presentation about the person’s character. The available materials may include the complaint application, police report or narrative, citation, photographs, video, messages, and other records. Defense counsel identifies each element of the proposed offense, the source of the allegations, disputed identification evidence, missing information, and facts the clerk-magistrate may weigh in deciding, as a matter of discretion, whether to issue a complaint.

In a private application, the available material may be limited to the applicant’s written statement. In a police application, the police report may be the main account of the incident, even when the officer who wrote the report does not attend the hearing. The clerk-magistrate may consider the police report, but the report may still be incomplete, inaccurate, or legally insufficient.

In Attorney Serpa’s experience, the Boston Police Department’s standard practice is to begin every fake ID case with an application for a felony complaint under G.L. c. 90, § 24B and a clerk-magistrate hearing rather than an arrest. That practice is specific to the Boston Police Department. Section 24B covers a falsely made or altered license, learner’s permit, or identification card of the kind issued by the Registry of Motor Vehicles (“RMV”). G.L. c. 138, § 34B makes it a misdemeanor to use or carry a false identification card or license, or to use another person’s card.

Under G.L. c. 218, § 35A, a person not under arrest is entitled to be heard on a police felony application when the officer requests a hearing. Counsel compares the card, the officer’s description of the card, and the facts alleged with the elements of § 24B and § 34B. Attorney Serpa addresses the school and record concerns of students charged with fake ID offenses at the same hearing.

Clerk-magistrates also hear applications for shoplifting and larceny, motor vehicle offenses, assault and battery, threats, criminal harassment, malicious destruction of property, and domestic offenses. Counsel reviews different materials for each kind of offense.

A shoplifting application under G.L. c. 266, § 30A typically includes the police narrative and a report from the store’s loss-prevention staff. Counsel asks whether the store preserved surveillance video, who viewed it, and what it shows about concealment and intent. Counsel also reviews the store’s list of the merchandise and the value the store assigns to the merchandise.

Larceny under G.L. c. 266, § 30 is a felony where the property is valued at more than $1,200. Larceny of property valued at $1,200 or less is a misdemeanor. Attorney Serpa’s article on shoplifting and larceny clerk-magistrate hearings covers those hearings in detail.

Police begin many motor vehicle prosecutions by issuing a citation under G.L. c. 90C marked as a criminal application. The driver obtains a hearing by requesting a hearing in writing within four days of the violation, as described in the article on the criminal uniform traffic citation. In an operating after suspension case under G.L. c. 90, § 23, counsel obtains the RMV driving record and the suspension notices. The Commonwealth must prove that the driver received notice of the suspension. Commonwealth v. Crosscup, 369 Mass. 228 (1975).

In applications for leaving the scene after property damage and for negligent operation, both under G.L. c. 90, § 24(2)(a), the identity of the driver is often the central question. A registration record identifies the owner of the vehicle, but the record does not show who was driving. Counsel reviews whether a witness, video, or statement identifies the driver, or whether the application relies on the registration alone.

Private citizens apply for complaints directly, most often after disputes between neighbors, coworkers, former partners, or business associates. Messages attached to an application are often a selection from a longer exchange, so counsel obtains the complete threads. The page on criminal charges between roommates explains how a clerk-magistrate hears a roommate’s complaint application against a college student. Assault and battery under G.L. c. 265, § 13A requires an intentional touching that was harmful, an intentional touching that was offensive and without consent, or a reckless act that caused bodily injury.

Threats to commit a crime under G.L. c. 275, § 2 requires an expressed intent to commit a crime, the ability to carry it out, and circumstances that justify the recipient’s apprehension. Under Commonwealth v. Cruz, 495 Mass. 110 (2024), the Commonwealth must also prove that the speaker was at least reckless as to the threatening character of the words.

Criminal harassment under G.L. c. 265, § 43A requires a willful and malicious pattern of conduct directed at a specific person. The pattern must consist of three or more incidents. Commonwealth v. Welch, 444 Mass. 80 (2005). Malicious destruction of property under G.L. c. 266, § 127 is punished more severely when the damage was willful and malicious than when the damage was wanton. The maximum penalty also depends on the value of the property. In each of these applications, counsel builds a timeline of every incident the applicant describes, because the clerk-magistrate considers the history between the parties in deciding probable cause and in exercising discretion.

Under G.L. c. 209A, § 6(7), arrest is the preferred response when an officer witnesses or has probable cause to believe that a person committed an assault and battery or another misdemeanor involving abuse. G.L. c. 276, § 28 authorizes that arrest without a warrant. In Attorney Serpa’s experience, domestic offenses that no officer witnessed, or that were reported days or weeks later, sometimes proceed by application to a clerk-magistrate hearing instead.

Those applications include assault and battery on a family or household member under G.L. c. 265, § 13M, threats, malicious destruction of property, and violation of a restraining order (abuse prevention order) under G.L. c. 209A, § 7.

The clerk-magistrate may issue the complaint without a hearing where there is an imminent threat of bodily injury. G.L. c. 218, § 35A requires the clerk-magistrate to consider the person’s criminal record and the statewide domestic violence record keeping system in deciding whether that threat exists. Counsel reviews the time between the incident and the report, any 209A restraining order and the affidavit filed to obtain the order, the return of service, and the history between the parties.

3. Select the Evidence, Witnesses, and the Accused Person’s Role

The formal rules of evidence do not control the hearing. A clerk-magistrate may consider hearsay, including a police report, and may hear short statements rather than trial testimony. Defense counsel therefore selects the few exhibits and witnesses that address the disputed issue. A large, unfocused packet can hide the disputed element, or the practical reason for a favorable result, from the clerk-magistrate.

The accused person may present relevant witnesses and documents. In Commonwealth v. DiBennadetto, 436 Mass. 310, 314 (2002), the Supreme Judicial Court held that unreasonable restrictions on relevant defense witnesses may deny the statutory opportunity to be heard. The clerk-magistrate may limit cumulative or irrelevant testimony. Defense counsel interviews each proposed witness before deciding whether to call that witness.

The documents that help the defense differ from case to case. Those documents may include video, photographs, messages, business records, proof of restitution, treatment records, academic materials, employment information, or professional-license materials. Each selected item should establish a material fact and relate to probable cause, reliability, identification, discretion, or a specific collateral consequence.

The accused person does not have to speak. The Commonwealth may use a statement the accused person makes at the hearing as evidence if the clerk-magistrate issues a complaint. Defense counsel should decide from the evidence whether the person should remain silent or make a short, prepared statement. Counsel should make that decision before the hearing rather than in response to an unexpected question in the room.

4. Arrive at Court and Confirm the Hearing Room

Most clerk-magistrate hearings occur in a conference room, clerk’s office, or small hearing room rather than a public courtroom. The clerk-magistrate or assistant clerk-magistrate presides. A police prosecutor, citing officer, or other police representative ordinarily presents a police application. A private complainant presents a citizen application. No judge or jury takes part in the hearing.

Ordinary hearings are presumptively private, but privacy is not absolute. The Supreme Judicial Court has recognized that the public may have a claim to attend a hearing in an unusual case of special public significance. A family member, friend, reporter, or other observer should not assume a right to attend. The clerk-magistrate controls attendance and procedure.

Defense counsel should confirm the hearing room, check in, identify who is present for the applicant, and learn the expected order of presentation. Procedures vary by court, clerk-magistrate, proposed offense, and source of the application.

5. The Applicant Presents the Complaint Application

In a police matter, the police representative may summarize or read from the police report and identify supporting documents. The officer who wrote the report may be absent. In a private application, the complainant ordinarily describes the alleged incident and requested charge. The clerk-magistrate must decide whether to issue a criminal complaint on the application.

The accused person has no right to cross-examine the officer or complainant at a Section 35A hearing. The clerk-magistrate decides whether to permit questioning and how far the questioning may go. When the clerk-magistrate permits questioning, defense counsel may ask about the elements, source of knowledge, identification, inconsistencies, missing evidence, and discretion. Otherwise, counsel may address those weaknesses in the defense presentation.

6. The Defense Addresses Probable Cause and Discretion

Probable cause requires reasonably trustworthy information supporting each element of the proposed offense and the accused person’s identity as the offender. Probable cause is a lower standard than proof beyond a reasonable doubt, but the clerk-magistrate must still find trustworthy information on every element. The clerk-magistrate may deny the application because of a missing element, an unsupported inference, an unreliable identification, or an allegation that does not describe a crime.

In some hearings, the clerk-magistrate may also decline to issue a complaint as a matter of discretion. The extent of that discretion depends on who applied and which offense the applicant proposed. The Supreme Judicial Court has recognized that a clerk-magistrate may decline to issue a complaint on a private citizen’s application even when probable cause exists, because a private citizen has no right to compel a prosecution. When a district attorney decides to pursue a legally valid complaint, the clerk-magistrate may not bar the prosecution. Commonwealth v. Clerk-Magistrate of the West Roxbury Division of the District Court Department, 439 Mass. 352 (2003).

Where the clerk-magistrate has that discretion, defense counsel may present reasons not to issue a complaint. The presentation may address the person’s record, restitution, treatment, corrective action, academic or professional history, the complainant’s position, and the consequences of arraignment. Each point should relate to the particular application rather than rely on a generic request for leniency.

7. The Clerk-Magistrate Determines the Outcome

Depending on the court and the issues, the clerk-magistrate may announce the decision at the hearing, take the application under consideration, or continue the matter. Clerk-magistrates usually reach one of the four outcomes described below. The wording and conditions of each outcome vary from court to court.

Application Denied

When the clerk-magistrate denies an application, no complaint, arraignment, or CORI entry results from that application. A denial is not a final judgment barring every later lawful application. In Commonwealth v. Cabrera, 496 Mass. 179 (2025), the Supreme Judicial Court confirmed that a clerk-magistrate’s denial is not a final judgment barring every later lawful application.

Application Held in Abeyance

An application held in abeyance remains pending for a stated period. During that period, the clerk-magistrate may require the person to commit no new offense, pay restitution, complete treatment, take corrective action, or complete another agreed step. The application is not final while it remains open. If the person satisfies the stated conditions and the clerk-magistrate closes the application, no complaint, arraignment, or CORI entry results from the application.

Hearing Continued

The clerk-magistrate may continue the hearing when a witness is unavailable, more information is needed, or a practical resolution remains under discussion. The application stays pending until the new hearing date the court sets. The person should learn what the clerk-magistrate expects to happen before that date, including any condition the person must meet in the meantime.

Criminal Complaint Issued

If the clerk-magistrate authorizes the complaint, the court schedules an arraignment. The court case and CORI entry ordinarily begin at arraignment, not at the clerk hearing. The person does not receive a new show cause hearing after the clerk-magistrate issues the complaint. Defense counsel may instead raise a procedural defect in the clerk-magistrate hearing through a motion to dismiss the complaint. The firm’s Massachusetts arraignment guide explains what happens at arraignment.

8. Address Records and Collateral Concerns Precisely

A denial or successful abeyance can prevent a complaint, arraignment, and CORI entry from that application. A denial or completed abeyance does not erase every police, school, licensing, immigration, or agency record. The firm’s Massachusetts criminal-record guide explains the difference between a complaint application, a court case, CORI, sealing, and other records.

A person who answers a question about criminal history on an application or form must answer according to the exact wording of the question and the law governing that application or form. The answer can affect a college or university student, a licensed professional, or a person with F-1, J-1, or another immigration status. An immigration lawyer may determine after reviewing the exact record and question that disclosure is not legally required.

9. Prepare Before the Hearing Date

A clerk-magistrate hearing gives a person the chance to prevent a formal criminal case. Not every case receives a hearing, and no lawyer can promise a result. Preparation should address the proposed offense, the materials supporting the application, the available defense evidence, local procedure, and any lawful basis on which the clerk-magistrate may decline, as a matter of discretion, to issue a complaint.

Attorney Joe Serpa has represented people at clerk-magistrate hearings in the Boston Municipal Court and District Courts throughout Greater Boston since 1995. Selected complaint denials and other hearing outcomes appear on the firm’s case-results page. Past outcomes do not predict the clerk-magistrate’s decision on a new application.

To discuss a show cause notice, complaint application, or criminal motor-vehicle citation, call Serpa Law Office at 617-936-0201.

Last Reviewed: August 2026