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

A judge decides almost every contested question in a Massachusetts criminal case. The judge rules on the motions, sets the conditions of release, accepts or rejects a plea, and imposes the sentence. Article 30 of the Declaration of Rights places that power in the judicial department. The same article keeps the executive branch out of it.

Article 30 also keeps the judge out of decisions that belong elsewhere. The Legislature defines the offense and fixes the punishment available for it. The page on what the Massachusetts Legislature decides in a criminal case covers those statutes. The district attorney decides whether the Commonwealth prosecutes and what plea to offer. Those decisions are set out on the page on what a Massachusetts district attorney can and cannot decide.

The page on how criminal cases get dismissed covers the motion practice through which those decisions are contested in the District Court and the Boston Municipal Court.

This page takes each decision in a criminal case in turn. It states what a judge may do, what a judge must do, and what a judge has no authority to order.

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 judge of that court may hear any criminal case the Commonwealth brings there.

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

The difference matters at sentencing. A judge of the District Court or the Boston Municipal Court cannot impose a state prison sentence. Only a judge of the Superior Court can. The page on the courts, state prison, and the house of correction covers that division.

Article 30 states that the judicial department “shall never exercise the legislative and executive powers, or either of them.” The Supreme Judicial Court applies that clause to criminal cases directly. 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).

A judge’s power in a criminal case therefore comes from a statute, a rule of criminal procedure, or a constitutional protection. It does not come from the judge’s own assessment that a case 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, a clerk-magistrate, an assistant clerk, or a judge finds whether the application establishes probable cause to believe that the person named committed the offense charged. In most District Court and Boston Municipal Court cases a clerk-magistrate makes that finding.

A judge may also conduct the hearing G.L. c. 218, § 35A requires. That hearing is available where the accused is not under arrest and the application alleges a misdemeanor. Since the 2004 amendment to § 35A it is also available on a felony application received from a law enforcement officer who requests it. The clerk-magistrate hearing page covers who receives a hearing. The page on what happens at a clerk-magistrate hearing describes the proceeding step by step.

Once a clerk-magistrate finds probable cause, a judge does not rehear that finding in a second show cause hearing. The defendant’s remedy is a motion to dismiss the complaint, which a judge decides on the application and the materials that were before the magistrate. 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 it 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 judge confirms the charge, appoints or confirms counsel, enters a plea of not guilty, and decides the conditions of release. The assistant district attorney states the Commonwealth’s position. Defense counsel argues for release. The judge rules.

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 makes that determination in the exercise of discretion. Before arraignment, when the police hold a person at the station after an arrest, a bail commissioner or a clerk applies the same standard.

Section 58 lists what the judge weighs: the nature and circumstances of the offense, the potential penalty, family ties, financial resources, employment, the record of convictions, and any prior failure to appear. Where the amount set is likely to result in long-term pretrial detention because the person cannot pay it, the judge must make written or recorded findings. Those findings must explain why no affordable amount and no nonfinancial conditions would assure appearance.

A judge may not consider the alleged dangerousness of a defendant in setting the amount of bail. Brangan v. Commonwealth, 477 Mass. 691 (2017). Dangerousness may be considered in setting other conditions of release. It belongs in a separate proceeding when the Commonwealth seeks detention.

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.

Pretrial detention on dangerousness follows its own procedure. The assistant district attorney files the motion 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, a person so detained may not be held longer than 120 days by the District Court or 180 days by the Superior Court.

The Motions a Judge Decides Before Trial

A judge decides the motion to suppress evidence. The question is whether the police obtained the evidence in violation of Article 14 of the Declaration of Rights or the Fourth Amendment. The judge takes testimony, finds the facts, and rules. The page on illegal searches and seizures covers the doctrine.

Suppression is the exclusion of evidence from the trial. It is not a dismissal. Where the Commonwealth still holds enough admissible proof after an order of suppression, the prosecution continues.

A judge decides the motion to dismiss. The reasons available differ between the District Court and the Boston Municipal Court on one side and the Superior Court on the other. The two sets are taken separately below. The page on how criminal cases get dismissed covers the motion practice in the District Court and the Boston Municipal Court in full.

A judge orders discovery. Under Mass. R. Crim. P. 14(a)(1)(A) the prosecution must disclose the listed categories automatically, without a request, at or before the pretrial conference. Where the prosecution does not, the defense moves and the judge decides what the Commonwealth must produce and what sanction follows.

A judge rules on the motions in limine that shape what a jury will hear, and on a motion to sever defendants or counts. The page on trial motion practice covers how those motions are written and argued. Attorney Joe Serpa describes how he researches, writes, and argues a motion to suppress or 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. That declaration belongs to the prosecuting attorney 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.

Dismissal a Judge Can Order in the District Court and the 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 where the accused was not under arrest and was denied the hearing G.L. c. 218, § 35A required. The right to that hearing is statutory rather than constitutional. Its denial carries no lasting prejudice, because the complaint process can begin again and the accused can then be heard. 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.

A judge may dismiss 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. A judge must dismiss 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 each of those endings leaves on the record.

Dismissal a Judge Can Order 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 on the same speedy trial reasoning that applies in the District Court. Mass. R. Crim. P. 36(b) governs 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 conducts 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 it 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.

An offer is not final or binding on either party until a judge accepts the plea and enters a final disposition.

Rule 12 treats the two court departments differently where the parties have no binding agreement. In the District Court, the Boston Municipal Court, and the Juvenile Court, the defendant may tender a plea or an admission with a request for a specific disposition under G.L. c. 278, § 18. Under Rule 12(c)(4)(A) the judge must then inform the defendant that the disposition imposed will not exceed the terms of the defendant’s request without first giving the defendant the right to withdraw the plea.

In the Superior Court there is no defendant-capped plea. Under Rule 12(c)(4)(A) a Superior Court judge must inform the defendant that the disposition imposed will not exceed the terms of the prosecutor’s recommendation without first giving the defendant the right to withdraw the plea. The prosecutor’s recommendation sets the ceiling there.

Rule 12(c)(6)(B) applies in the District Court and in the Superior Court. A District Court judge who decides to impose a sentence above the defendant’s request must advise the defendant of that intent on the record. A Superior Court judge must do the same before exceeding the prosecutor’s recommendation. In each case the judge must afford the defendant the opportunity to withdraw the plea or admission.

A plea agreement binds the judge to its terms only where it contains both a specific disposition and a charge concession. Rule 12(b)(5)(A). The judge must accept or reject that agreement before accepting the plea. Where the judge rejects it, the judge must allow either party to withdraw from the agreement and must allow the defendant to withdraw the plea. Rule 12(d)(4).

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 it on compliance, 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 the judge imposes it. Id. at 327.

The Trial

A jury decides guilt or innocence and issues a verdict at trial. In a jury-waived trial, a judge decides guilt or innocence and issues a verdict.

The defendant chooses between the two. 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.

Through the trial the judge decides what the jury hears. The judge rules on objections, decides the admissibility of each exhibit, and instructs the jury on the law. The pages on jury selection, opening statements and closing arguments, and cross-examination cover 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. Its own page covers the standard and the timing.

The judge decides whether to declare a mistrial. That decision carries consequences for whether the Commonwealth may try the case again, which the pages on a mistrial and retrial and on double jeopardy cover.

Where the defense raises a lack of criminal responsibility, the judge decides what the jury may hear on it and how to instruct them. The criminal responsibility page covers that defense.

The Sentence

The judge imposes the sentence. The statute that defines the offense fixes the maximum and, where the Legislature has set one, the minimum. The prosecutor’s recommendation does not bind the judge. The prosecutor’s charging decision determines which statute applies. The charge therefore sets the range the judge works within.

Whether a statutory minimum term may be suspended 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. That express language, not the minimum term by itself, made the two years a term the defendant had to serve.

A state prison sentence can be imposed only in the Superior Court. The sentences available in the District Court and the Boston Municipal Court are described on their own page.

Under Mass. R. Crim. P. 28 a judgment of conviction follows a verdict or a finding of guilty, entered on the docket in open court. The probation department reports on the defendant’s record before sentencing. The judge affords the defendant and counsel an opportunity to speak and to present information in mitigation of punishment before pronouncing sentence.

After the Sentence

Two rules let a judge change a disposition after imposing it, each on a short clock. Under Mass. R. Crim. P. 29(a)(1) the trial judge may revise or revoke a disposition on determining that any part of it was illegal. The judge acts on the judge’s own motion or on the prosecutor’s written motion. The motion must come within sixty days of the disposition.

Under Rule 29(a)(2) the trial judge may revise or revoke a disposition if it appears that justice may not have been done. The judge acts on the judge’s own motion or on the defendant’s written motion. The defendant has sixty days from the disposition, from an appellate rescript on direct review, or from the disposition of the charges against a codefendant.

Under Mass. R. Crim. P. 30(a) a person imprisoned or restrained on a criminal conviction may move the trial judge to correct the sentence. That motion lies at any time, as of right, where the confinement or restraint violates the Constitution or laws of the United States or of the Commonwealth. The page on correcting a Massachusetts criminal sentence covers both rules.

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 the defendant’s motion, treated as a motion for a new trial under that rule.

Probation and Surrender

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 what disposition follows, including whether to impose 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, an assistant clerk, or a judge authorizes the complaint on a finding of probable cause. A judge decides the motion to dismiss that complaint. Twelve or more grand jurors return an indictment. A judge decides the motion to dismiss it for insufficient grand jury evidence.

A judge decides admission to bail, the amount of bail, and the conditions of release at arraignment under G.L. c. 276, § 58. Before arraignment a clerk or a bail commissioner decides bail at the police station. In the Superior Court a justice of that court, the clerk of courts, or a commissioner appointed by the court admits a person to bail under § 57. The assistant district attorney files a motion for pretrial detention under § 58A. The judge decides it.

A judge decides every motion to suppress and every motion in limine. A judge decides whether to accept a plea, conducts the colloquy, and finds the factual basis. A judge decides whether to continue a case without a finding over the Commonwealth’s objection.

A jury decides guilt or innocence and issues a verdict at trial. In a jury-waived trial, a judge decides guilt or innocence and issues a verdict. A judge decides whether the evidence is legally sufficient to go to the jury, imposes the sentence within the range the statute provides, and rules on the motions that follow the sentence.

The district attorney decides whether the Commonwealth proceeds, whether to seek an indictment, whether to amend or reduce a count, and whether to enter a nolle prosequi. Those decisions are set out on the district attorney page. The stages of a Massachusetts criminal case, from the clerk-magistrate hearing to trial and appeal, are set out on the criminal process hub.

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

Serpa Law Office can be reached at 617.936.0201.