What a Massachusetts District Attorney Can and Cannot Decide

A Massachusetts district attorney represents the Commonwealth in criminal prosecutions. The district attorney decides whether and how the Commonwealth prosecutes a case, including which charges to pursue, whether to seek an indictment, whether to enter a nolle prosequi, and what plea offer or sentencing recommendation to make.

Article 30 of the Massachusetts Declaration of Rights separates the district attorney’s prosecutorial authority from legislative and judicial power. The Massachusetts Legislature defines statutory offenses, assigns jurisdiction, and establishes authorized penalties and statutory dispositions. A Massachusetts judge rules on motions and release, accepts or rejects pleas, presides over the trial, and imposes a lawful sentence. The prosecutor may advocate for a result but cannot issue a complaint, return a verdict, accept a plea, or impose a sentence.

The District Attorney’s Statutory and Constitutional Authority

Under G.L. c. 12, § 12, voters elect a district attorney for a four-year term. District attorneys appear for the Commonwealth in Superior Court criminal cases under G.L. c. 12, § 27 and in the District Court and the Boston Municipal Court under G.L. c. 218, § 27A(g).

Article 30 provides that the judicial department may not exercise executive power. The Supreme Judicial Court has held that the decision whether to prosecute a particular defendant belongs exclusively to the executive branch. Commonwealth v. Clerk-Magistrate of the West Roxbury Division of the District Court Department, 439 Mass. 352, 359 to 360 (2003), citing Commonwealth v. Taylor, 428 Mass. 623, 629 (1999).

How a Criminal Case Begins

In the District Court and the Boston Municipal Court, a criminal case begins when a clerk-magistrate, assistant clerk, or judge authorizes a complaint under Mass. R. Crim. P. 3 and G.L. c. 218, §§ 33 and 35. A police officer usually submits the application, although a private person or the district attorney’s office may also apply. The clerk-magistrate, assistant clerk, or judge determines whether the application and supporting information establish probable cause. The district attorney does not issue the complaint.

G.L. c. 218, § 35A requires the court to give an accused person who is not under arrest an opportunity to be heard on a misdemeanor application and on a felony application received from a law enforcement officer who requests a hearing. The clerk-magistrate, assistant clerk, or judge who receives the application may also hold a hearing on a felony application that did not come from law enforcement. No hearing is required when there is an imminent threat of bodily injury, commission of a crime, or flight from Massachusetts. Separate rules apply when a motor vehicle citation has already issued.

A clerk-magistrate may decline to issue a misdemeanor complaint even when probable cause exists if prosecution is unlikely. The denial is not a final judgment. The complainant may ask a judge to redetermine the application, but a private complainant has no right to compel the issuance of a complaint. Cabrera v. Commonwealth, 496 Mass. 179 (2025); Trustees of Boston University v. Clerk-Magistrate of the Cambridge Division of the District Court Department, 495 Mass. 56, 63 and n.12 (2024).

In Commonwealth v. Clerk-Magistrate of the West Roxbury Division of the District Court Department, the Supreme Judicial Court distinguished the clerk-magistrate’s statutory responsibilities from the district attorney’s prosecutorial authority. The court held that the clerk-magistrate could not postpone action on two felony applications until hearings that § 35A did not then authorize, because the delay improperly interfered with the executive branch’s prosecutorial discretion. 439 Mass. at 357 to 360. The Legislature later amended § 35A to cover a felony application received from a law enforcement officer who requests a hearing.

The clerk-magistrate may issue the complaint on a finding of probable cause, subject to the limited discretion to decline a misdemeanor complaint described above. If the complaint issues, the accused cannot obtain a second show-cause hearing before a judge. The accused instead challenges the complaint through a motion to dismiss, which may assert insufficient probable cause or a defect that impaired the integrity of the complaint proceeding. Commonwealth v. DiBennadetto, 436 Mass. 310, 313 to 314 (2002).

The page on who receives a clerk-magistrate hearing and the page on what happens at the hearing explain the complaint process before arraignment. The arrest and arraignment page explains how a case begins by arrest or summons and what happens at the first court date.

In the Superior Court, assistant district attorneys present evidence to a grand jury under Mass. R. Crim. P. 5. An indictment requires the concurrence of 12 or more grand jurors. The district attorney decides whether to seek the indictment, but the grand jury decides whether to return it.

The Charging Power Once the Case Is in Court

A clerk-magistrate issues most District Court and Boston Municipal Court complaints on a police application before an assistant district attorney appears in the case. In Superior Court cases, assistant district attorneys ordinarily present the evidence to a grand jury before arraignment on the indictment.

Once a prosecution is pending, the district attorney decides whether and how the Commonwealth will continue the prosecution, subject to the governing law and the court’s rulings.

The district attorney may proceed on the complaint or the indictment as issued. The district attorney may move to amend the complaint or indictment, to reduce a count, or to dismiss a count. A judge allows or denies that motion. The district attorney may enter a nolle prosequi under Mass. R. Crim. P. 16(a).

A nolle prosequi is the prosecutor’s written declaration that the Commonwealth will not further prosecute a charge. The prosecuting attorney signs the nolle prosequi and attaches a written statement of reasons. Rule 16(a) permits the prosecutor to enter a nolle prosequi at any time before the pronouncement of sentence, the imposition of probation, or the entry of an order of continuance without a finding. Under Rule 16(b), a nolle prosequi entered after jeopardy attaches without the defendant’s consent has the effect of an acquittal.

The district attorney may present the case to a grand jury under Mass. R. Crim. P. 5. Attorneys for the Commonwealth present the evidence. Twelve or more grand jurors must agree to find an indictment. The grand jury returns the indictment to a judge in open court. After indictment, the Commonwealth prosecutes the case in the Superior Court. Only a Superior Court judge may impose a state prison sentence.

Under Mass. R. Crim. P. 3, a defendant charged with an offense punishable by imprisonment in the state prison has the right to be proceeded against by indictment. The right to indictment is subject to the District Court’s concurrent jurisdiction over certain felonies and to the defendant’s written waiver of indictment.

What the District Attorney Cannot Do With the Charge

The district attorney cannot decide whether probable cause supports a complaint. A clerk-magistrate, assistant clerk, or judge makes that decision under G.L. c. 218, §§ 33 and 35 and Mass. R. Crim. P. 3. The district attorney may present evidence to a grand jury, but only 12 or more grand jurors may return an indictment under Mass. R. Crim. P. 5.

The district attorney cannot stop a judge from dismissing a charge for a legal reason. A judge may dismiss a complaint that the clerk-magistrate issued without probable cause.

A judge may dismiss the complaint without prejudice when § 35A required a hearing and the accused did not receive a hearing. The Commonwealth may apply for the complaint again. The accused then receives the required hearing on the new application. Commonwealth v. Lyons, 397 Mass. 644, 647 to 648 (1986); Cabrera v. Commonwealth, 496 Mass. 179 (2025).

A judge may dismiss the complaint where a materially misleading presentation or a procedural violation affected the integrity of the complaint proceeding.

A police officer’s failure to give a motor vehicle citation at the time and place of the violation is a defense to the charge, unless an exception in G.L. c. 90C, § 2 applies. Under Mass. R. Crim. P. 36(b), the Commonwealth must bring the defendant to trial within twelve months of the return day, after the periods the rule excludes are subtracted. A judge must dismiss the charge with prejudice where the Commonwealth did not bring the defendant to trial within that period.

A judge may dismiss a charge only on a legal ground.

Dismissal in the District Court and the Boston Municipal Court

A judge decides the motion to dismiss a complaint for lack of probable cause on the application and the materials before the magistrate, without a new evidentiary hearing. DiBennadetto, 436 Mass. at 313 to 314.

The page on how a criminal case is dismissed in the District Court and the Boston Municipal Court covers the motion practice for each of the reasons above. The page on dismissal and not guilty outcomes covers what each outcome leaves on the record. Attorney Joe Serpa describes how he researches, writes, and argues a motion to dismiss in a separate post.

A judge may not dismiss a legally valid complaint over the Commonwealth’s objection without a legal basis. A judge who does so “usurps the decision-making authority constitutionally allocated to the executive branch.” Commonwealth v. Cheney, 440 Mass. 568, 574 (2003), quoting Commonwealth v. Gordon, 410 Mass. 498, 501 (1991). Once the Commonwealth has begun a prosecution, “the decision to nol pros a criminal case is within the discretion of the executive branch of government, free from judicial intervention.” Cheney, 440 Mass. at 574, quoting Gordon, 410 Mass. at 500.

G.L. c. 278, § 18 permits a judge in the District Court, the Boston Municipal Court, or the Juvenile Court to accept one disposition over the district attorney’s objection. The defendant may tender a plea of guilty or an admission to sufficient facts together with a request for a specific disposition when the defendant and the Commonwealth have not agreed on a recommended disposition.

The defendant’s request may include a continuance without a finding to a date certain, with dismissal on compliance with conditions, unless a statute prohibits that disposition for the offense. The judge may accept the request over the Commonwealth’s objection. The Supreme Judicial Court upheld § 18 against a separation of powers challenge in Commonwealth v. Pyles, 423 Mass. 717 (1996), as the court explained in Cheney, 440 Mass. at 570 to 571.

Dismissal in the Superior Court

A judge may dismiss an indictment where the grand jury heard insufficient evidence to establish probable cause. Cheney, 440 Mass. at 575 n.12, citing Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982).

A judge may not dismiss a legally adequate indictment over the Commonwealth’s objection before a verdict, finding, or plea on the reasoning that dismissal would serve the interests of public justice. In Cheney a Superior Court judge dismissed legally adequate indictments for that reason. The Supreme Judicial Court held that Article 30 does not permit the dismissal. 440 Mass. at 568, 574 to 575.

Section 18 does not apply in the Superior Court. A Superior Court judge who has accepted a guilty plea may nonetheless continue the indictment without a finding on conditions and dismiss the indictment on compliance. The judge may enter that continuance over the Commonwealth’s objection where no statute prohibits that disposition. The Supreme Judicial Court held that the continuance without a finding is not a nolle prosequi and does not infringe the executive power. Commonwealth v. Powell, 453 Mass. 320, 323 to 327 (2009). The Commonwealth may appeal the continuance without a finding when the judge imposes it. Id. at 327.

In the District Court, the Boston Municipal Court, and the Superior Court alike, a judge cannot reduce the charge on a plea without the Commonwealth’s agreement. A judge who accepts a plea to a lesser offense than the one charged, over the Commonwealth’s objection, exercises a charging power that Article 30 reserves to the prosecutor. Commonwealth v. Pelletier, 449 Mass. 392, 398 to 399 (2007); Gordon, 410 Mass. at 498.

Release: Bail and Pretrial Detention

At arraignment, the assistant district attorney states the Commonwealth’s position on personal recognizance, bail, and conditions of release under G.L. c. 276, § 58. Defense counsel responds. The judge then admits the defendant to bail, releases the defendant on personal recognizance, or imposes conditions of release. Before arraignment, a clerk, assistant clerk, bail commissioner, or another official authorized by statute admits the person to bail or releases the person on personal recognizance. The district attorney does not set bail. The Massachusetts bail page explains the governing presumption, financial inquiry, findings, and Superior Court review.

The district attorney decides whether the Commonwealth will file a motion for detention or release on conditions under G.L. c. 276, § 58A. The Commonwealth may file that motion only when the defendant is charged with one of the offenses the statute lists. A judge conducts the hearing and may order detention only after finding by clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of another person or the community. The dangerousness-hearing page explains the qualifying offenses, evidence, and possible release conditions.

Absent good cause, detention under § 58A may not exceed 120 days in the District Court or 180 days in the Superior Court, excluding periods of delay defined by Mass. R. Crim. P. 36(b)(2). The Commonwealth chooses whether to file the motion. The judge then allows or denies the motion.

The Plea Offer and the Sentencing Recommendation

The district attorney makes the plea offer. Under Mass. R. Crim. P. 12, the prosecutor may agree to amend an indictment or complaint, dismiss or reduce charges, partially dismiss a charge, refrain from seeking an indictment, or refrain from bringing other charges. The parties may agree on a specific disposition or make a joint recommendation. Rules 12(c)(1) and 12(d)(1) require the parties to disclose on the record every factor, disposition, or action on which the agreement is conditioned, unless the judge for good cause permits disclosure in camera on the record.

The prosecutor generally may withdraw a plea offer before the defendant accepts the offer. A court may enforce the prosecutor’s promise where the defendant reasonably relied on the promise to the defendant’s detriment. Otherwise, the case proceeds to trial, leaving the defendant in the position that existed before the offer. Commonwealth v. Johnson, 447 Mass. 1018, 1020 to 1021 (2006); Commonwealth v. Smith, 384 Mass. 519, 522 (1981).

The judge decides whether to accept the plea. Rule 12 requires the judge to question the defendant in a colloquy, to find that the plea is voluntary and knowing, and to find that an adequate factual basis exists. G.L. c. 278, § 29D requires the judge to give the statutory immigration warning. The page on the immigration consequences of a plea explains defense counsel’s separate duty to advise a noncitizen.

Different limits apply if the parties have no agreed recommendation. In the District Court, Boston Municipal Court, and Juvenile Court, the defendant may withdraw the plea or admission if the judge intends to exceed the defendant’s requested disposition. In the Superior Court, the defendant may withdraw the plea or admission if the judge intends to exceed the prosecutor’s recommendation. Rule 12(c)(6)(B) requires the judge to give notice on the record and an opportunity to withdraw before exceeding the applicable limit.

A plea agreement that includes both a specific disposition and a charge concession binds the judge to impose the agreed sentence only if the judge accepts the agreement and the plea. The agreement does not bind the judge to recommended probation conditions. A sentencing recommendation alone does not bind the judge. The district attorney makes the recommendation. The judge imposes the sentence. Rule 12(b)(5)(A), (d)(4), and (d)(6).

The Finding of Guilt and the Sentence

In a jury trial, the jury returns a verdict of guilty or not guilty. In a jury-waived trial, the judge enters a finding of guilty or not guilty. After a plea or admission, the judge enters a finding of guilty or, in the District Court, Boston Municipal Court, or Juvenile Court, may continue the case without a finding under G.L. c. 278, § 18. The district attorney does not decide guilt.

The Commonwealth must prove every element of the offense beyond a reasonable doubt at trial. The judge, not the prosecutor, decides whether the evidence is legally sufficient to go to the jury.

The judge imposes the sentence within the range authorized by the statute. Only a Superior Court judge may impose a state prison sentence. The page on District Court and Boston Municipal Court sentencing explains the sentences and other dispositions a judge may impose in those courts. The judge may not impose less than a mandatory minimum sentence that the offense statute requires. A prosecutor’s recommendation alone does not bind the judge. A Rule 12(b)(5)(A) agreement that the judge has accepted binds the judge to the agreed sentence.

Under Mass. R. Crim. P. 28, a verdict or finding is rendered in open court and entered on the docket. Before sentencing, the probation department reports the defendant’s prior criminal case record, excluding cases in which the defendant was found not guilty. The judge must allow the defendant or defense counsel to speak and present information supporting a lesser punishment before imposing sentence. The page on correcting a Massachusetts criminal sentence addresses post-sentence motions.

The Duties That Bind the District Attorney

The district attorney must disclose evidence to the defense under Mass. R. Crim. P. 14. Mass. R. Crim. P. 14(a) defines the prosecution team and imposes affirmative duties to inquire, collect, disclose, preserve, and notify. The prosecutor must identify and collect discoverable material held by the prosecuting office or a prosecution-team member and must notify the defense when discoverable material becomes unavailable.

Rule 14(b)(1) requires the prosecutor to disclose relevant investigative material automatically, including defendant and codefendant statements, grand jury material, prospective-witness information and statements, intended expert material, police and investigator reports, photographs and recordings, tangible objects, scientific-test results, and identification-procedure material. Rule 14(b)(2) separately requires the prosecutor to disclose all items and information favorable to the defense that the prosecutor, the prosecuting office, or a prosecution-team member holds, without regard to the prosecutor’s view of credibility, reliability, admissibility, or whether the information has been reduced to tangible form.

Unless the court orders otherwise, Rule 14(c) requires the prosecutor to provide Rule 14(b) material in the prosecutor’s possession at arraignment and the material then available to the prosecution team by the first pretrial conference. Rule 14(d) makes the duty continuing and requires the prosecutor to disclose promptly, or give prompt notice of, discoverable material that the prosecution team later obtains.

Mass. R. Crim. P. 14.2 contains the related procedures and enforcement provisions. The automatic duties have the force and effect of a court order. Rule 14.2(e) requires a certificate of compliance after reasonable inquiry, Rule 14.2(g) permits a party to request a protective order, and Rule 14.2(j) authorizes the judge to impose sanctions for noncompliance.

The constitutional rule under Brady v. Maryland, 373 U.S. 83, 87 (1963), overlaps with Rule 14 but is not identical to it. Under Brady, a prosecutor who suppresses evidence favorable to the accused that is material to guilt or punishment violates due process, regardless of the prosecutor’s good faith or bad faith.

Mass. R. Prof. C. 3.8 imposes separate professional duties. A prosecutor must refrain from prosecuting without a good-faith belief that probable cause supports the charge, timely disclose information known to the prosecutor that tends to negate guilt or reduce the seriousness of the offense, and not avoid pursuing evidence because it may damage the prosecution or aid the accused. The duty continues after conviction when the prosecutor learns of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense.

Who Makes Each Decision

A police officer, private complainant, or prosecutor may apply for a District Court or Boston Municipal Court complaint. A clerk-magistrate, assistant clerk, or judge decides whether probable cause supports the complaint. In Superior Court, the prosecutor decides whether to seek an indictment, but 12 or more grand jurors decide whether to return the indictment.

Once the case is pending, the district attorney decides which charges to pursue, whether to enter a nolle prosequi, whether to file a § 58A motion, and what plea terms or sentence to recommend. A judge admits the defendant to bail or releases the defendant on personal recognizance, rules on motions, accepts or rejects pleas, and imposes the sentence. A jury returns the verdict in a jury trial, while a judge enters the finding in a jury-waived trial.

The prosecutor must also satisfy the disclosure duties imposed by Rule 14, Brady, and the Rules of Professional Conduct. The Massachusetts criminal process page explains when each of these decisions arises, from the complaint application through trial and appeal.

Where These Decisions Are Made

G.L. c. 12, § 13 establishes 11 prosecutorial districts. Nine correspond to a single county, although three use different names: Middlesex County is the Northern District, Essex County is the Eastern District, and Worcester County excluding Athol is the Middle District. The Northwestern District covers Franklin County, including Athol, and Hampshire County. The Cape and Islands District covers Barnstable, Dukes, and Nantucket counties.

Attorney Joe Serpa practices in the District Court, Boston Municipal Court, and Superior Court in Suffolk, Norfolk, Middlesex, Essex, Worcester, and Bristol counties. The Massachusetts court-location pages identify the District Court divisions in those counties, and the Boston Municipal Court page explains that court’s divisions. A separate post discusses the September 2026 district attorney primary results.

To discuss a Massachusetts criminal case, contact Serpa Law Office at 617.936.0201.