FAQ: What to Do After an Arrest in Massachusetts

Invoke your right to remain silent explicitly and immediately. Say: "I am invoking my right to remain silent. I want to speak with a lawyer." Under the Fifth Amendment and Article 12 of the Massachusetts Declaration of Rights, you cannot be compelled to make self-incriminating statements. Beyond providing your name and date of birth, you are not required to answer any questions. Do not attempt to explain your side of the story — statements made during an arrest or at the station are routinely used as evidence against defendants, including statements that were intended to be exculpatory.

Yes. You have the absolute right to refuse to answer questions beyond providing basic identifying information. The right to remain silent is guaranteed by the Fifth Amendment and Article 12 of the Massachusetts Declaration of Rights. It must be affirmatively invoked — silence alone is not sufficient under Berghuis v. Thompkins (2010). Once you invoke the right, all questioning must cease. Police are permitted to continue speaking to you and may make representations about leniency or the strength of the evidence — none of it requires a response.

No — not without a warrant. The United States Supreme Court held in Riley v. California (573 U.S. 373, 2014) that law enforcement must obtain a search warrant before accessing the digital contents of a seized phone. The search-incident-to-arrest exception that permits searches of physical items on an arrested person does not extend to digital devices. Do not provide your passcode and do not consent to a device search. See our full analysis: Illegal Searches and Seizures in Massachusetts.

An arraignment is the first formal court appearance. Massachusetts law requires it to occur "without unnecessary delay" — in practice, within 24 hours or on the next business day if you are held in custody. If released after booking, you will be given a date to appear. At arraignment the court reads the charges, you enter a plea (almost always not guilty, which preserves all options), and the judge addresses bail and conditions of release. The most critical consequence of arraignment is that the charge is permanently entered onto your public Criminal Offender Record Information (CORI) at that moment — regardless of how the case ultimately resolves.

Yes. The CORI entry is created the moment your name is called at arraignment. If your case is subsequently dismissed, or if you are found not guilty at trial, the arraignment entry remains on your public record until it becomes eligible for sealing or expungement under Massachusetts law. This is why the clerk-magistrate hearing — available for most misdemeanor offenses where police did not make a warrantless arrest — is so strategically critical. A case resolved at that stage, before arraignment, generates no CORI entry of any kind.

A clerk-magistrate hearing (also called a Show Cause hearing) is a private, pre-arraignment proceeding under M.G.L. c. 218, § 35A. It is available for most misdemeanor offenses where law enforcement did not make a warrantless arrest at the scene. A court clerk-magistrate determines whether probable cause exists to issue a formal criminal complaint. If the application is denied or held in abeyance and subsequently dismissed, no criminal complaint issues, no arraignment occurs, and no CORI entry is created. The matter is permanently closed off the public record. For a full analysis see: A Practitioner's Guide to Massachusetts Clerk-Magistrate Hearings.

Four actions cause the most damage to Massachusetts criminal cases and must be avoided immediately:

Do not explain your side of the story to police. Officers are building a prosecution case, not evaluating your credibility. Even truthful, accurate statements by innocent people are regularly used as evidence.

Do not post anything on social media. Posts made after an arrest — including to friends, expressions of frustration, or statements apparently unrelated to the incident — are discoverable and have been used at trial.

Do not contact the complainant. In domestic violence cases and matters involving a 209A restraining order, any contact with the protected person is itself a separate criminal offense. In other cases, contact with a complainant before arraignment can result in additional charges.

Do not discuss the case on a police station telephone. Calls from Massachusetts police stations are routinely recorded and are available to the prosecution.

Bail is a financial deposit paid to the court to guarantee a defendant's return for future court appearances. At arraignment, a judge determines whether to release the defendant on personal recognizance (no cash required), set a bail amount, or hold the defendant pending a dangerousness hearing. Factors include the seriousness of the charge, prior criminal record, ties to the community, employment history, and risk of flight. For most first-time misdemeanor arrests, personal recognizance release is available. A defense attorney present at arraignment can argue for the most favorable conditions.

A dangerousness hearing under M.G.L. c. 276, § 58A is a pre-trial proceeding at which the prosecution moves to hold a defendant in custody without bail for the duration of the case, or a substantial portion of it. A judge may order detention of up to 120 days (with extensions available) upon a finding that no conditions of release will reasonably assure the safety of the community. Dangerousness hearings are most commonly filed in domestic violence cases, serious violent felony charges, certain repeat OUI offenses, and cases involving firearms. A defendant is entitled to a hearing before a detention order issues and may postpone the final hearing by up to seven days to prepare a defense with counsel.

Under M.G.L. c. 274, § 1, a crime punishable by imprisonment in state prison is a felony. All other crimes are misdemeanors by default. Felonies carry greater penalties, more significant collateral consequences for professional licenses and immigration status, and are prosecuted in Superior Court for the most serious charges. Misdemeanors are prosecuted in District Court or Boston Municipal Court and are subject to the clerk-magistrate hearing procedure for most offenses. The distinction also affects sealing eligibility and waiting periods.

Failure to appear at a scheduled arraignment results in the court issuing a default warrant — a warrant for your arrest that remains active until you appear before a judge. The warrant is entered into the statewide criminal database and can result in arrest during any police encounter. A defense attorney can file a motion to recall a default warrant and can often appear on your behalf in advance to prevent the default from issuing. If you have missed an arraignment date, contact counsel immediately.

Yes. Dismissal after arraignment is available through several mechanisms: agreement between the defense and the District Attorney's Office, a successful Motion to Dismiss based on constitutional violations or insufficient evidence, or a Motion to Suppress that eliminates the key evidence and renders prosecution impossible. Dismissal can also be achieved through pretrial probation or diversion programs for eligible first-time offenders. See our case results and our overview of CWOF, Pretrial Probation, and Dismissal options in Massachusetts.