What a Massachusetts District Attorney Can and Cannot Decide

A Massachusetts district attorney represents the Commonwealth in criminal prosecutions. The district attorney exercises executive authority over whether and how a prosecution will proceed, 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 that 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 applies that separation directly to prosecution: 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.

When the accused is not under arrest, G.L. c. 218, § 35A requires 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 court officer may also conduct 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, and 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, and the complainant may request judicial redetermination, but a private complainant has no right to compel 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 clerk-magistrate could not postpone action on two felony applications until hearings that § 35A did not then authorize. That delay improperly interfered with executive 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.

Probable cause permits the clerk-magistrate to issue the complaint, subject to the limited discretion concerning misdemeanor applications 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

Most District Court and Boston Municipal Court complaints originate with a police application and issue before an assistant district attorney appears. 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 it, 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 it, to reduce a count, or to dismiss a count. A judge acts on 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 it and attaches a written statement of reasons. The rule permits the entry 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. An indictment may be found only on the concurrence of twelve or more grand jurors. The grand jury returns the indictment to a judge in open court. On indictment the case moves to the Superior Court, where the defendant faces the state prison sentence that a District Court judge cannot impose.

Mass. R. Crim. P. 3 governs the choice of forum for the most serious charges. A defendant charged with an offense punishable by imprisonment in the state prison has the right to be proceeded against by indictment. That right 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 make the judicial probable-cause determination that authorizes a complaint. A clerk-magistrate, assistant clerk, or judge makes that determination 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.

When § 35A required a hearing and the accused did not receive one, a judge may dismiss the complaint without prejudice. The Commonwealth may begin the complaint process again and provide the required hearing. Commonwealth v. Lyons, 397 Mass. 644, 647 to 648 (1986); Cabrera v. Commonwealth, 496 Mass. 179 (2025).

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

Where a police officer did not give a motor vehicle citation at the time and place of the violation and no exception in G.L. c. 90C, § 2 applies, the failure is a defense to the charge. 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 with prejudice where it did not.

A judge may dismiss a charge only on a legal ground. The available grounds differ between a District Court or Boston Municipal Court complaint and a Superior Court indictment, so the next two sections address those courts separately.

Dismissal in the District Court and the Boston Municipal Court

A judge decides the motion to dismiss a complaint for want 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, and the page on dismissal and not guilty outcomes covers what each 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.

The Legislature has placed one disposition in the District Court, the Boston Municipal Court, and the Juvenile Court that the district attorney cannot veto. Under G.L. c. 278, § 18, a defendant and the Commonwealth may fail to agree on a recommended disposition. The defendant may then tender a plea of guilty or an admission to sufficient facts together with a request for a specific disposition.

That 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 because 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 judge who has accepted a guilty plea may nonetheless continue the indictment without a finding on conditions and dismiss it on compliance. The judge may do so over the Commonwealth’s objection where no statute prohibits that disposition. That disposition 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 disposition when it is imposed. 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, and the judge decides. Before arraignment, a clerk, assistant clerk, bail commissioner, or another official authorized by statute makes the release decision. 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. That motion is available only for the offenses the statute enumerates. 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, and the judge decides it.

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 disclosure on the record of every factor, disposition, or action on which the agreement is conditioned, unless the judge for good cause permits disclosure in camera on the record.

Before the defendant accepts an offer, the prosecutor generally may withdraw it. When the defendant has not reasonably relied on the promise to the defendant’s detriment, the case proceeds to trial, leaving the defendant in the position that existed before the offer. A court may enforce a promise when the defendant reasonably relied on it to the defendant’s detriment. 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 a colloquy, a voluntary and knowing plea, and an adequate factual basis. 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 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. It 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 makes the required finding, 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’s burden at trial is proof of every element of the offense beyond a reasonable doubt. 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 dispositions available in those courts. A mandatory minimum limits the judge when the defendant is convicted under the qualifying provision. A prosecutor’s recommendation alone does not bind the judge, although an accepted Rule 12(b)(5)(A) agreement does.

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 in mitigation of 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 owes disclosure duties. 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 automatic disclosure of relevant investigative material, 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 disclosure of all items and information favorable to the defense that are held by the prosecutor, the prosecuting office, or a prosecution-team member, 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 obligation continuing and requires prompt disclosure or notice when the prosecution team later obtains discoverable material.

Mass. R. Crim. P. 14.2 supplies 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 request for a protective order, and Rule 14.2(j) authorizes 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. Suppression of evidence favorable to the accused that is material to guilt or punishment violates due process regardless of the prosecution’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 mitigate the offense, and not avoid pursuing evidence because it may damage the prosecution or aid the accused. The duty continues after conviction when the rule’s evidentiary thresholds are met.

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 determines whether probable cause permits the complaint to issue. In Superior Court, the prosecutor decides whether to seek an indictment, and 12 or more grand jurors decide whether to return it.

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 decides release, motions, pleas, and sentencing. 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.