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The National Trial Lawyers

Clerk’s Hearings

In Massachusetts, there is a procedure that sometimes allows people charged with crimes to avoid being arraigned and defending themselves in court altogether. Defendants charged with minor crimes can request to have a hearing before a clerk-magistrate prior to the arraignment to determine if a criminal complaint should be issued. If the clerk-magistrate finds there is no probable cause for the charges, the case will be dismissed and the defendant will never have to appear before a judge. However, even if there is probable cause, in some cases the clerk-magistrate will decide not to issue the criminal complaint in the interest of justice, and the case will be closed before it ever arrives in a criminal courtroom.

Section 35A of Massachusetts General Laws Chapter 218 states that if a person is charged with a misdemeanor that was not committed in the presence of a police officer, he is entitled to have a hearing in front of a clerk-magistrate unless: (1) the allegations constitute an imminent threat of bodily injury; (2) the allegations constitute an imminent threat a crime will be commissioned; or (3) there is a risk the person being charged is a flight risk and might leave the jurisdiction. Unless one of the three exceptions is applicable (or unless another statute specifically states a defendant is not entitled to a clerk’s hearing), the defendant can request a clerk’s hearing before being arraigned.

How Does a Clerk’s Hearing Work?

A clerk’s hearing is much more informal than court. It usually happens in a conference room in the courthouse and it usually is not open to the public. The defendant is present with his attorney and there is a representative from the police department to provide evidence in support of the complaint. If the defendant is being charged with a violent crime, such as assault and battery, the alleged victim is allowed to be present (but is not required to appear). The rules of evidence do not apply and hearsay is admissible. Some, but not all, clerk-magistrates allow defense attorneys to cross-examine the Commonwealth’s witnesses. While not required, the defendant is permitted to testify, to present evidence, and to call witnesses.

The clerk-magistrate’s first responsibility is to determine if the Commonwealth has established probable cause to believe the defendant has committed the crimes with which he has been charged. If the clerk-magistrate concludes there is a lack of probable cause, the complaint application will be dismissed and the case will be over.

However, even if the clerk-magistrate believes there is probable cause to support the charges, the defendant might still avoid the courtroom. The district court administrative regulations that apply to clerk-magistrate’s hearings state that even if probable cause is established, the clerk-magistrate has the authority to screen minor criminal matters out of the criminal justice system “through a combination of counseling, discussion, or threat of prosecution.” In many cases, particularly when the defendant does not have an extensive criminal record, the clerk-magistrate might find probable cause but instead of issuing the complaint, hold the application open for a period of time. If the defendant stays out of trouble and abides by other conditions ordered by the clerk-magistrate (for example, completes an anger management class or pays restitution to the alleged victim), the complaint will not issue and the charges with never show up on the defendant’s criminal record.

Clerk-magistrate hearings are important opportunities for defendants to resolve their cases without ever being formally charged in court. Defendants often don’t realize the importance of hiring an attorney to represent them at clerk-magistrate hearings. It is crucial you hire an attorney to represent you at a clerk-magistrate’s hearing. Experienced criminal defense attorneys are familiar with the rules governing these hearings and will be in a position to effectively present your case to the clerk-magistrate.

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