FAQ: What to Do After an Arrest in Massachusetts

An arrested person should clearly invoke the right to remain silent and ask for a lawyer. A direct statement is enough. The arrested person can say, “I am invoking my right to remain silent. I want to speak with a lawyer.”

Police may ask routine questions needed for booking, but the arrested person should not discuss the incident, explain the conduct, or try to persuade an officer that the arrest is a mistake. A statement intended to help can supply an admission, create an inconsistency, or reveal information that investigators did not have.

Yes. The Fifth Amendment and Article 12 of the Massachusetts Declaration of Rights protect a person from compelled self-incrimination. A person in custody should invoke the right to remain silent unambiguously, because silence alone may not count as an invocation of the right. Berghuis v. Thompkins, 560 U.S. 370 (2010).

After a clear invocation of the right to silence, police must stop custodial interrogation and scrupulously honor the decision to remain silent. Officers may still give routine instructions, respond to an immediate safety risk, or ask administrative booking questions that do not seek incriminating information. A person who clearly requests counsel receives additional protection against continued custodial interrogation. The arrested person does not need to discuss the alleged offense.

Police may not search the digital contents of a phone based only on an arrest. Police generally need a search warrant, valid consent, or a recognized exception such as an exigency. In Riley v. California, 573 U.S. 373 (2014), the United States Supreme Court rejected the claim that the ordinary search-incident-to-arrest rule permits a routine search of a phone’s digital contents.

An arrested person should not consent to a device search or provide a passcode before speaking with counsel. The firm’s pages on digital search warrants in Massachusetts and the Fifth Amendment and compelled phone passcodes explain the separate warrant and passcode questions.

An arraignment is the first formal court appearance after a complaint or indictment. Massachusetts Rule of Criminal Procedure 7 requires an immediate initial appearance if the court is in session when an arrested person is brought to court. The initial appearance must occur at the next session if the court is not in session. A person released after booking ordinarily receives a date to appear.

At arraignment, the court identifies the charge, ordinarily enters a not-guilty plea unless the defendant chooses another lawful disposition after consulting counsel, and addresses representation. The judge also decides whether to release the defendant on personal recognizance or set bail, and imposes any conditions of release. Arraignment also creates a Criminal Offender Record Information (CORI) entry. CORI is not simply an unrestricted public record. What a requester may receive depends on the requester’s authorization and the governing access rules.

Arraignment creates a CORI entry even if the case later ends in dismissal or acquittal. The later disposition becomes part of the record, but a dismissal or acquittal does not by itself erase every court, police, or agency record connected to the incident.

Massachusetts law requires automatic sealing of some non-conviction dispositions and permits a person to petition to seal others. Expungement applies to a narrower category of records. The correct procedure depends on the disposition, the offense, and the person’s complete record. The firm’s page on sealing or expunging a Massachusetts criminal record explains the differences between sealing and expungement.

A clerk-magistrate hearing, also called a show cause hearing, is an ordinarily private proceeding held before arraignment. Under M.G.L. c. 218, § 35A, a person who was not arrested ordinarily receives a hearing on a misdemeanor application unless one of the statute’s imminent-threat exceptions applies. The statute also requires a hearing on a felony application when a law enforcement officer requests one and permits the clerk-magistrate to grant a hearing in certain other felony applications.

The clerk-magistrate decides whether to issue a criminal complaint. No complaint, arraignment, or CORI entry results from an application that the clerk-magistrate denies. A clerk-magistrate may instead hold the application open for a defined period. The application remains pending while the clerk-magistrate holds it open. In Attorney Serpa’s experience, the court ordinarily takes no further action if the person completes the agreed condition and has no new offense.

Defense counsel can challenge a complaint by motion if the court issues the complaint without a required § 35A hearing. The available remedy depends on the procedural defect and the case record. A clerk-magistrate’s denial of an application also does not create a final judgment for collateral-estoppel purposes. Cabrera v. Commonwealth, 496 Mass. 179 (2025). In Attorney Serpa’s experience, a denial is the practical end of nearly every ordinary application, but a denial does not legally bar a later application. The firm’s page on how Massachusetts criminal cases can be dismissed or stopped before trial explains the available procedures.

The Massachusetts Clerk-Magistrate Hearing FAQs answer additional questions about notice, privacy, evidence, possible outcomes, and representation at the clerk-magistrate hearing.

• The arrested person should not explain the incident to police after invoking the applicable rights. Even an accurate statement can supply evidence or create an apparent inconsistency.

• The arrested person should not post about the incident on social media. Investigators and prosecutors may obtain posts, direct messages, photographs, and videos through public access, another participant, consent, legal process, or a search warrant. Properly authenticated material may then be offered as evidence.

• The arrested person must obey every no-contact provision in a bail condition, 209A restraining order (abuse prevention order), or other court order. Contact that violates a 209A restraining order is a separate criminal offense. A message may become evidence or support an allegation of witness intimidation even when no order prohibits contact. Counsel should review any court order and the case before any contact occurs.

• The arrested person should not discuss the case on a police-station or correctional-facility telephone. The facility may record the call and provide the recording to the prosecution.

At a bail hearing, a judge addresses the question whether the defendant will return to court. A judge may release the defendant on personal recognizance, impose lawful nonfinancial conditions, or set cash bail in a case where the bail statutes permit cash bail. The judge considers the charge, prior record, court history, community ties, employment, and other facts related to the risk of nonappearance. A judge may not use unaffordable cash bail simply to detain a person for public-safety reasons.

A dangerousness hearing under M.G.L. c. 276, § 58A is a separate procedure available only for a qualifying charge. In Attorney Serpa’s experience, courts often release a person with no prior record who faces an ordinary misdemeanor on personal recognizance, but the judge decides each case on its own facts. Counsel can present the information relevant to release and oppose unnecessary conditions.

A dangerousness hearing under M.G.L. c. 276, § 58A is available only when the defendant faces a qualifying offense identified by the statute. The Commonwealth may ask the judge to detain the defendant without bail. The judge may order detention only if the Commonwealth proves by clear and convincing evidence that no release conditions will reasonably assure the safety of another person or the community. The judge may instead impose the least restrictive safety conditions that the statute permits.

The dangerousness hearing ordinarily occurs at the defendant’s first appearance. Except for good cause, a continuance requested by the defendant may not exceed seven days, and a continuance requested by the Commonwealth may not exceed three business days. The court must detain the defendant during a continuance of the dangerousness hearing upon a showing that there was probable cause to arrest the defendant.

In the absence of good cause, detention under § 58A may not exceed 120 days in the District Court or 180 days in the Superior Court. Periods of delay defined by Massachusetts Rule of Criminal Procedure 36(b)(2) do not count toward the 120-day and 180-day limits. The firm’s page on Massachusetts dangerousness hearings explains the qualifying charges, burdens, evidence, and hearing procedure.

Under M.G.L. c. 274, § 1, an offense is a felony if the statute authorizes a state-prison sentence. Every other crime is a misdemeanor. A person convicted of a misdemeanor may still receive a substantial house-of-correction sentence and face serious consequences outside court.

The District Courts and Boston Municipal Court have final jurisdiction over misdemeanors and many felonies. Cases prosecuted by indictment proceed in Superior Court. A clerk-magistrate hearing may be available under § 35A when the person was not arrested, subject to the statute’s rules for misdemeanor and felony applications and its imminent-threat exceptions.

The court may enter a default and issue a warrant when a defendant fails to appear. Police can arrest the defendant on the warrant during a later police encounter. The warrant ordinarily remains active until the court recalls or cancels it.

Counsel can ask the court to remove the default and recall the warrant, but the court may require the defendant to appear. The proper procedure depends on the court, the reason for the absence, and whether the defendant is in Massachusetts. The firm’s page on removing a Massachusetts default warrant explains the process.

A Massachusetts criminal case can sometimes be dismissed before trial. The available procedure depends on the stage of the case and the legal basis for dismissal. A prosecutor may enter a nolle prosequi. A defendant may move to dismiss a complaint that lacks probable cause or has a material procedural defect. The Commonwealth may end the case after a judge allows a motion to suppress evidence that the Commonwealth needs to prove the charge.

A case can also end in dismissal after the defendant completes the required conditions of an eligible diversion or pretrial-probation program. A continuance without a finding (CWOF) can end in dismissal. However, a judge enters a CWOF after the defendant admits to sufficient facts. Unlike an immediate dismissal, a CWOF can have further consequences for the defendant. The firm’s guide to Massachusetts criminal dismissal rules explains who decides each kind of dismissal. The firm’s criminal defense results include cases dismissed at different procedural stages.