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: “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 unambiguously because silence alone may not do so. 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, address immediate safety matters, or ask administrative booking questions that do not seek incriminating information. A clear request for counsel provides additional protection against continued custodial interrogation. The arrested person does not need to discuss the alleged offense.

An arrest by itself does not authorize police to search the digital contents of a phone. Police generally need a search warrant, valid consent, or a recognized exception such as an exigency. Riley v. California, 573 U.S. 373 (2014), 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. If the court is in session when an arrested person is brought to court, Massachusetts Rule of Criminal Procedure 7 requires an immediate initial appearance. If the court is not in session, the appearance must occur at the next 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, addresses representation, and decides release conditions. 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 it does not by itself erase every court, police, or agency record connected to the incident.

Massachusetts law seals some non-conviction dispositions automatically 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 those differences.

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. If the clerk-magistrate denies the application, no complaint issues, no arraignment occurs, and the application creates no CORI entry. A clerk-magistrate may instead hold the application open for a defined period. The application remains pending during that period. In Attorney Serpa’s experience, if the person completes the agreed condition and has no new offense, the court ordinarily takes no further action.

If the court issues a complaint after a required § 35A hearing did not occur, defense counsel can challenge the complaint by motion. 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 it 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 that stage.

• 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 abuse-prevention order, or other court order. Contact that violates a 209A order is a separate criminal offense. Even when no order prohibits contact, a message may become evidence or support an allegation of witness intimidation. Counsel should review the 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 it to the prosecution.

Bail addresses whether a defendant will return to court. A judge may release the defendant on personal recognizance, impose lawful nonfinancial conditions, or set cash bail when the bail statutes permit it. 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.

Dangerousness 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 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 may detain the defendant during that continuance after the required probable-cause showing.

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 those limits. The firm’s 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 misdemeanor may still authorize a substantial house-of-correction sentence and 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. A warrant can lead to arrest during a later police encounter and 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 route depends on the stage of the case and the legal basis. 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. A successful motion to suppress may exclude essential evidence and lead the prosecution to end the case.

Eligible diversion or pretrial-probation programs can also lead to dismissal after the defendant completes the required conditions. A continuance without a finding (CWOF) can end in dismissal, but it follows an admission to sufficient facts and can carry consequences that an immediate dismissal does not. The firm’s guide to Massachusetts criminal dismissal rules explains who controls each route. The firm’s criminal defense results include cases dismissed at different procedural stages.