What a Massachusetts Judge Can and Cannot Decide in a Criminal Case

A Massachusetts judge rules on motions, admits a defendant to bail or releases the defendant on personal recognizance, accepts or rejects pleas, presides over trials, and imposes sentences within the limits the statutes allow. In a jury trial, however, the jury determines whether the Commonwealth proved each charge beyond a reasonable doubt.

Article 30 of the Massachusetts Declaration of Rights separates judicial power from legislative and executive power. The Massachusetts Legislature defines criminal offenses, assigns jurisdiction, and sets the punishments the courts may impose. The district attorney decides whether and how the Commonwealth will prosecute, including which charges to pursue and which plea terms to offer. A judge rules on motions and imposes a lawful sentence but may not exercise the Legislature’s or the district attorney’s authority.

The Judge’s Authority in a Criminal Case

Two statutes give the trial courts their criminal jurisdiction. Under G.L. c. 212, § 6, the Superior Court has original jurisdiction of all crimes. A Superior Court judge may hear any criminal case the Commonwealth brings in the Superior Court.

Under G.L. c. 218, § 26, the District Court Department and the divisions of the Boston Municipal Court have original jurisdiction, concurrent with the Superior Court, over a defined group of offenses. That jurisdiction includes all misdemeanors except libels, all felonies punishable by imprisonment in state prison for not more than five years, and the additional offenses the section enumerates.

Only a Superior Court judge may impose a state prison sentence. The page on Massachusetts courts, state prison, and the house of correction explains the sentences of confinement each court may impose.

Article 30 states that the judicial department “shall never exercise the legislative and executive powers, or either of them.” The Supreme Judicial Court has held that a judge who dismisses a legally adequate charge over the Commonwealth’s objection, without a legal basis, “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).

The Constitution, statutes, court rules, controlling precedent, and valid exercises of inherent judicial authority define a judge’s power in a criminal case. Article 30 does not permit a judge to replace the prosecutor’s charging judgment with the judge’s own view that a legally valid prosecution is weak, sympathetic, or an unwise use of public resources.

Before the Complaint Issues

A judge may authorize a criminal complaint. Under Mass. R. Crim. P. 3 and G.L. c. 218, §§ 33 and 35, a clerk-magistrate, assistant clerk, or judge determines whether the application establishes probable cause to believe that the person named committed the charged offense. In most District Court and Boston Municipal Court cases, a clerk-magistrate makes that determination.

A judge may also conduct a hearing under G.L. c. 218, § 35A. The statute requires the court to give a 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 statute also permits the clerk-magistrate or judge, in their discretion, to hold a hearing on a felony application not received from law enforcement. No hearing is required when there is an imminent threat of bodily injury, commission of a crime, or flight from Massachusetts. The clerk-magistrate hearing page explains who receives a hearing, and the page on what happens at a clerk-magistrate hearing describes the proceeding.

The complainant may ask a judge to redetermine an application that a clerk-magistrate has denied. The judge may deny the request, review the existing record, or consider the application anew. By contrast, an accused person cannot ask a judge to redetermine the application after the clerk-magistrate authorizes a complaint. The accused must challenge the complaint through a motion to dismiss at or after arraignment. Commonwealth v. DiBennadetto, 436 Mass. 310, 313 to 314 (2002).

A judge cannot order the district attorney to prosecute a case. A judge also cannot bar a prosecution the district attorney has decided to bring on a legally valid complaint. Commonwealth v. Clerk-Magistrate of the West Roxbury Division of the District Court Department, 439 Mass. 352, 359 to 360 (2003).

In the Superior Court the case begins with an indictment. Twelve or more grand jurors return the indictment after assistant district attorneys present the evidence under Mass. R. Crim. P. 5. A judge receives the indictment in open court. The page on indictments and grand juries covers that procedure.

Arraignment, Bail, and Pretrial Detention

At arraignment, the court reads the charges unless a represented defendant waives the reading, enters the defendant’s plea, gives the advisories required by law, and addresses the right to counsel. The prosecutor and defense counsel then state their positions on release. The judge admits the defendant to bail, releases the defendant on personal recognizance, or imposes conditions of release. Mass. R. Crim. P. 7(b).

Under G.L. c. 276, § 58, the judge admits the person to bail on personal recognizance without surety unless release on personal recognizance will not reasonably assure the person’s appearance before the court. The judge exercises discretion in deciding whether personal recognizance will assure the person’s appearance. Before arraignment, when the police hold a person at the station after an arrest, a bail commissioner or a clerk applies the same standard.

G.L. c. 276, § 58 requires the judge to consider, among other factors, the nature and circumstances of the charge, the potential penalty, family ties, financial resources and ability to post bail, employment, convictions, and failures to appear. The judge must make written or orally recorded findings when the bail amount is likely to cause long-term pretrial detention because the person cannot pay it. The findings must explain why neither affordable bail nor nonfinancial conditions will reasonably assure appearance, how the judge calculated the amount, and why the Commonwealth’s interest in bail outweighs the likely harm of detention to the person and the person’s immediate family or dependents.

A judge may not use an unaffordable bail amount to detain a person because of alleged dangerousness. Brangan v. Commonwealth, 477 Mass. 691 (2017). A judge may impose lawful nonfinancial release conditions to address safety. The Commonwealth must use the separate G.L. c. 276, § 58A procedure to seek detention on dangerousness grounds.

In the Superior Court, a justice of the Superior Court, the clerk of courts, or a bail commissioner appointed by the Superior Court admits a person to bail under G.L. c. 276, § 57. A person whom a District Court judge declines to release on personal recognizance may petition the Superior Court for review of the order. The Superior Court hears that petition, except in unusual circumstances, on the same day it is filed.

The assistant district attorney files a motion for pretrial detention on grounds of dangerousness under G.L. c. 276, § 58A. The judge holds a dangerousness hearing at which the person has the right to counsel, to testify, to present witnesses, and to cross-examine the witnesses who appear.

The judge orders detention only on a finding, by clear and convincing evidence, that no conditions of release will reasonably assure the safety of any other person or the community. The order must include written findings of fact and a written statement of reasons. Absent good cause, detention under G.L. c. 276, § 58A may not exceed 120 days in the District Court or 180 days in the Superior Court, excluding any period of delay defined by Mass. R. Crim. P. 36(b)(2).

The Motions a Judge Decides Before Trial

A judge decides motions to suppress. The judge applies Article 14 and the Fourth Amendment to a challenged search or seizure. The judge applies Article 12, the Fifth Amendment, and the requirements of Miranda v. Arizona to a challenged statement. The judge hears evidence, makes findings of fact, and allows or denies the motion when the disputed material facts require an evidentiary hearing. The page on illegal searches and seizures explains the search-and-seizure doctrines.

Suppression is the exclusion of evidence from the trial. Suppression is not a dismissal. The Commonwealth may continue the prosecution where enough admissible evidence remains after the order of suppression.

A judge decides motions to dismiss. The page on how Massachusetts criminal cases get dismissed explains the District Court and Boston Municipal Court motion practice in greater detail.

Discovery under Rule 14 is largely automatic. Under Mass. R. Crim. P. 14(b) and (c), the prosecutor must provide the relevant listed material in the prosecutor’s possession at arraignment to the extent then available and must provide the material then available to the prosecution team by the first pretrial conference. The defense may move to compel production or seek sanctions under Rule 14.2(j) if the prosecution does not comply. The judge then decides which remedy, if any, to order.

Judges also decide motions in limine, which ask the judge to rule before trial on whether particular evidence will be admitted, and motions to sever, which ask the judge to try defendants or counts separately. The page on Massachusetts criminal trial motion practice explains how counsel presents those motions. Attorney Joe Serpa describes how he researches, writes, and argues motions to suppress and dismiss in a separate post.

What a Judge Cannot Do With the Charge

A judge cannot dismiss a legally adequate charge over the Commonwealth’s objection before a verdict, a finding, or a 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.

A judge cannot enter a nolle prosequi, the prosecutor’s written declaration that the Commonwealth will not further prosecute a charge. Only the prosecuting attorney may enter a nolle prosequi, under Mass. R. Crim. P. 16(a). 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.

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.

A judge cannot order the district attorney to seek an indictment, to bring a different offense, or to make a particular plea offer.

Grounds for Dismissal in the District Court and Boston Municipal Court

A judge may dismiss a complaint the clerk-magistrate issued without probable cause. The judge decides that motion on the application and the materials before the magistrate, without a new evidentiary hearing. DiBennadetto, 436 Mass. at 313 to 314.

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 judge may dismiss a motor vehicle complaint where a police officer did not give the citation at the time and place of the violation and no exception in G.L. c. 90C, § 2 applies. A judge must dismiss a complaint with prejudice where the Commonwealth did not bring the defendant to trial within twelve months of the return day, after the periods Mass. R. Crim. P. 36(b) excludes are subtracted.

The page on dismissal and not guilty outcomes covers what a dismissal and a not guilty finding each leave on the record.

Grounds for 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 dismiss an indictment for the same speedy trial reason that applies in the District Court, where the Commonwealth did not bring the defendant to trial within the period Mass. R. Crim. P. 36(b) allows. Rule 36(b) applies in both courts.

A judge may not dismiss a legally adequate indictment over the Commonwealth’s objection before a verdict, a finding, or a plea. Cheney, 440 Mass. at 574 to 575.

The Plea

The judge decides whether to accept a plea. Under Mass. R. Crim. P. 12(c) the judge questions the defendant in open court in a colloquy, informs the defendant of the maximum possible sentence and of the rights waived, and hears the prosecutor state the factual basis of the charge. The judge accepts the plea only on a finding that the defendant makes the plea voluntarily and with an understanding of the nature of the charge and its consequences. The judge must also find that an adequate factual basis exists.

Under G.L. c. 278, § 29D the judge must advise the defendant that the plea may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization. Defense counsel has a separate duty to advise a noncitizen client of the immigration consequences of a plea.

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 judge who rejects the agreement must allow either party to withdraw from the agreement and must allow the defendant to withdraw the plea or admission. Rule 12(b)(5)(A), (d)(4), and (d)(6).

In the District Court, the Boston Municipal Court, and the Juvenile Court, a judge may accept a tendered plea over the Commonwealth’s objection. G.L. c. 278, § 18 permits the defendant to request a continuance without a finding to a date certain, with dismissal on compliance with conditions. The judge may allow that request unless a statute prohibits the disposition for the offense.

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.

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, 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.

The Trial

A jury returns a verdict of guilty or not guilty. In a jury-waived trial, the judge enters a finding of guilty or not guilty.

The defendant chooses between a jury trial and a jury-waived trial. Under Mass. R. Crim. P. 19(a) the defendant may waive the right to trial by jury, provided that the judge determines after a colloquy that the waiver is knowing and voluntary. The defendant signs a written waiver, which the clerk files with the court. The judge may refuse to approve the waiver for any good and sufficient reason, given in open court and on the record.

During trial, the judge resolves evidentiary objections, decides the admissibility of disputed exhibits, and instructs the jury on the law. The pages on jury selection, opening statements and closing arguments, and cross-examination explain those stages.

The judge, not the prosecutor and not the jury, decides whether the evidence is legally sufficient to go to the jury. A required finding of not guilty under Mass. R. Crim. P. 25 is an acquittal rather than a dismissal. A separate page on the required finding of not guilty covers the standard and the timing.

The judge decides whether to declare a mistrial. The pages on a mistrial and retrial and on double jeopardy explain when the Commonwealth may try the case again after a mistrial.

When the defense raises lack of criminal responsibility, the judge decides which evidence is admissible and instructs the jury on the governing law. The criminal responsibility page explains that defense.

The Sentence

The Legislature establishes the authorized penalties, the prosecutor chooses the charges the Commonwealth will pursue, and the judge selects a lawful sentence for the offense established by the verdict, finding, plea, or admission. A prosecutor’s recommendation alone does not bind the judge. A plea agreement that includes both a specific disposition and a charge concession, however, binds the judge to the agreed sentence after the judge accepts the agreement and the plea, but not to recommended probation conditions.

Whether a judge may suspend a statutory minimum term depends on the words of the particular statute rather than on the phrase “not less than” standing alone. In Commonwealth v. Lightfoot, 391 Mass. 718, 721 (1984), the Supreme Judicial Court read the express language of G.L. c. 272, § 7 barring suspension and barring eligibility for probation, parole, and furlough. The Supreme Judicial Court held that the defendant had to serve the two-year term because of that express language, not because of the minimum term by itself.

Only the Superior Court may impose a state prison sentence. The page on sentencing in the District Court and the Boston Municipal Court explains the sentences and other dispositions those courts may impose.

Under Mass. R. Crim. P. 28, a verdict or finding of guilty or not guilty 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.

Post-Sentence Motions

Mass. R. Crim. P. 29 provides two grounds for revising or revoking a disposition, each governed by a 60-day period. For an illegal disposition, the trial judge may revise or revoke the disposition within 60 days of the disposition, either on the judge’s own motion or on the prosecutor’s written motion. For a disposition where it appears that justice may not have been done, the judge may revise or revoke the disposition within 60 days of the disposition, of the issuance of an appellate rescript on direct review, or of the disposition of criminal charges against a codefendant, either on the judge’s own motion or on the defendant’s written motion.

Under Mass. R. Crim. P. 30(a), a person imprisoned or otherwise restrained under a criminal conviction may file a motion at any time to seek release or correction of the sentence on the ground that the confinement or restraint violates federal or Massachusetts law. The page on correcting a Massachusetts criminal sentence explains Rules 29 and 30.

Under Mass. R. Crim. P. 30(b) a judge may grant a new trial at any time it appears that justice may not have been done. Commonwealth v. Scott, 467 Mass. 336, 344 (2014). A motion to withdraw a guilty plea is a defendant’s motion that the judge treats as a motion for a new trial under Rule 30(b).

Probation Conditions and Violation Proceedings

The judge sets the conditions of probation. The probation department supervises compliance and brings an alleged violation back to court. The judge decides whether the defendant violated a condition and, on a finding of violation, whether to continue the probation, change the conditions, or revoke the probation and impose a sentence, including a sentence that was suspended.

The pages on a Massachusetts probation violation, on defenses to a probation violation, and on a violation of a continuance without a finding cover those hearings.

Who Makes Each Decision

A clerk-magistrate, assistant clerk, or judge may authorize a complaint. Twelve or more grand jurors return an indictment. At arraignment, a judge admits the defendant to bail, releases the defendant on personal recognizance, imposes conditions of release, or, on the Commonwealth’s motion, orders pretrial detention after a hearing under G.L. c. 276, § 58A. Before trial, the judge rules on suppression, dismissal, discovery, severance, and evidentiary motions. The judge decides whether to accept a plea, presides over a jury or jury-waived trial, imposes a lawful sentence, and decides post-sentence motions and probation violations.

The district attorney decides which charges the Commonwealth will pursue, whether to seek an indictment, whether to enter a nolle prosequi, whether to file a dangerousness motion, and what plea terms or sentence to recommend. A jury returns the verdict in a jury trial. A judge enters the finding in a jury-waived trial. The Massachusetts criminal process page explains when each decision arises.

Where These Decisions Are Made

Attorney Joe Serpa appears before judges of the District Court, the Boston Municipal Court, and the Superior Court in Suffolk, Norfolk, Middlesex, Essex, Worcester, and Bristol counties.

In Suffolk County, judges of the eight divisions of the Boston Municipal Court and of the Chelsea District Court make the District Court decisions described above. The district courts of Norfolk, Middlesex, Essex, Worcester, and Bristol counties each have their own page. Judges of the Suffolk, Norfolk, Middlesex, Essex, Worcester, and Bristol Superior Courts make the Superior Court decisions.

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