Boston Massachusetts Criminal Hearings Lawyer

There are numerous different types of hearings that often occur before, during or after the final disposition of a criminal case. Such hearings include, but are not limited to, Clerk Magistrate Hearings, Bail Hearings, Dangerousness Hearings, Probable Cause Hearings, Grand Jury Indictment Representation, Police Interviews, Probation Detention Hearings and Probation Surrender Hearings. These hearings are separate and distinct proceedings from other Motion Hearings in the case such as discovery motions, motions to suppress evidence and motions to dismiss.

Clerk Magistrate Hearings:

There are certain offenses, typically misdemeanor crimes without an arrest, for which an accused is afforded a Clerk Magistrate Hearing prior to formal charges being brought by the issuance of a criminal complaint. This hearing is also commonly referred to as a Show Cause Hearing or a Clerk's Hearing and occasionally but incorrectly referred to as a Probable Cause Hearing, which is another type of post-arraignment hearing.

When either the police or a private party (both are referred to as the "complainant") file an "application" for a criminal complaint with the court, the accused is sent a notice in the mail to appear before a Clerk Magistrate in a criminal Show Cause Hearing. The purpose of this Clerk's Hearing is to determine whether there is sufficient evidence to bring formal criminal charges against you. The complainant must produce enough evidence to show "probable cause" that the crime was committed.

The three possible outcomes from this hearing are (1) the denial of the application, (2) the continuance of the application, or (3) the issuance of the criminal complaint. Denying the issuance of the criminal complaint occurs if probable cause is not found or it is otherwise stipulated. The matter can also sometimes be continued (that is, kept "open") whereby the criminal complaint will issue only if you are later charged with committing another alleged criminal act or otherwise fail to comply with a specific contingent condition during the continuation period. Though the issuance of the criminal complaint is not a barometer of your eventual guilt or innocence, the charge will nevertheless appear on your permanent criminal record ("CORI") once you are arraigned.

Oftentimes you will not be entitled to or afforded the opportunity to be heard at a Clerk's Hearing and a criminal complaint will instead directly issue. Unless you are arrested and transported to court, you will otherwise receive a summons to appear for the Arraignment, which is typically the initial court appearance at which the reading of the alleged criminal charge occurs and at which the court thereafter automatically enters a plea of not guilty on your behalf. In past years the "remand" was common legalese and oftentimes ordered by the courts, despite that the legislature never enacted an actual remand statute. Massachusetts courts have now almost completely abolished this tactic and motions to remand a case to a Show Cause Clerk's Hearing are routinely denied. As a result, even many attorneys and judges alike are unaware that it is still possible, albeit rare, upon a joint oral motion and showing by the defense or prosecution to the court, to have a case "removed" from the docket list and then down-graded to a Clerk's Hearing. This procedure is most easily facilitated if it is motioned before the arraignment occurs, though this is rarely done since most accused persons have not yet had a chance to retain legal counsel at that early stage. However, it can also possibly occur after the arraignment, assuming that the judge can be convinced that justice requires a dismissal of the case "nunc pro tunc" (that is, retroactively) to a time that is immediately prior to the arraignment and provided that this specific wording is clearly and legibly entered upon the docket sheet. This is the only way, after you have been previously arraigned, that the court's probation department can then forward the requisite paperwork to the Office of the Commissioner of Probation to request it to "expunge" (that is, permanently erase as if it never existed in the first instance) the entry of dismissal from your criminal record, though there is no absolute guarantee of eventual expungement. Attorney Arnel has successfully achieved this rare outcome on notable occasions.

At the Clerk's Hearing, witnesses are placed under oath so that the evidence is presented under the pains and penalties of perjury. Despite that sworn testimony is given, formal rules of evidence are usually relaxed. Though not entitled, defense counsel is oftentimes permitted limited cross-examination of prosecution witnesses. It is also customary for the police prosecutor to be present at the hearing instead of the actual witnessing police officer, as there is no requirement that the witnessing officer is present and, as such, the complaint may be issued solely on the basis of hearsay. The defense is, however, permitted to summons any witness, including the witnessing officer, and this should be considered if there are no other viable options to dispute the allegations, again with the caveat that the defense can be denied the opportunity to cross-examine the officer at the hearing.

As previously stated, the standard of proof required for a clerk-magistrate to issue a criminal complaint is "probable cause," that is, there must be probable cause to believe that the accused has committed the crime. Though it is not an especially high burden for the complainant to meet, it is of some comfort to note that a clerk's finding of probable cause does not necessarily mean that you will later be convicted, as the prosecution's task will then be significantly higher whereas its burden will be "proof beyond a reasonable doubt." It is again emphasized that, even in instances where probable cause is found to support the issuance of a complaint, the Clerk Magistrate can oftentimes be convinced to decline to issue the same. The application for the criminal complaint can be kept open for a period of time, typically for six to twelve months, either with or without other specific conditions such as, amongst other things, paying court costs or restitution, attending counseling or obeying a stay away order. This preliminary disposition is somewhat similar to a continuance without a finding that can be imposed by a judge, but without having to admit to sufficient facts for a finding of guilty, without giving up your constitutional right to a trial or appeal, and without being placed on actual administrative or supervised probation. For a brief discussion on a continuance without a finding, please click on Criminal FAQ. However, unlike with a continuance without a finding, a clerk's continuance that results in an eventual denial, and ultimate destruction, of the application does not have the adverse consequences of having the criminal charge entered upon your permanent criminal record which could significantly affect future legal proceedings, employment, schooling, housing, loans, gun licensing, etc. For more information on the adverse consequences of having a criminal record, please click on Seal or Expunge Criminal Record.

BEWARE!!! Since they have not yet been formally charged, many accused make the potentially colossal mistake of taking this critical stage of the legal proceedings too lightly as they become naturally tempted to proceed without legal representation in the hope of saving an otherwise one-time legal fee. It has been said that "sometimes cheap is expensive," so be cautioned not to fall into this perilous trap for, if a criminal complaint issues against you, it could ultimately cost you thousands of dollars more in legal fees, lost time and business opportunity, as well as your driver's license, public housing, financial aid, personal loans, business loans, home loans, public benefits, government assistance, gun licensing and, not to mention, your job and good reputation. Many personnel working in clerk magistrate offices will routinely advise you that you do not need a lawyer for the hearing. That wary advice is ill-conceived and wrong! Remember, this is the one and only opportunity that you will be given to prevent a criminal complaint from issuing against you, one that could conceivably result in catastrophic and life changing consequences! It is therefore critical to always have an experienced and savvy attorney to protect your rights at a Show Cause Hearing.

How Can An Experienced Massachusetts Criminal Defense Attorney Help?

• Procure a dismissal or otherwise negotiate a favorable agreement for you at the Show Cause Clerk's Hearing such as, amongst other things, having the proceeding continued and the application kept open for a period of time in contemplation of dismissal provided that all of the requisite conditions are satisfied.
• Prevent you from being summonsed to court and named as a criminal defendant.
• Prevent you from having a damaging criminal charge being entered upon your permanent criminal record, even if the charge is later dismissed or you are acquitted after trial.
• Prevent you from incurring significant future legal expenses to attempt to "seal" your criminal record and avoiding the uncertainty of the outcome. For more information on sealing criminal records, please click on Seal or Expunge Criminal Record.
• Avoid the stigma and public embarrassment of you being an accused criminal.
• Avoid potential financial loss or other problems in your business affairs.
• Avoid the embarrassment, humiliation, aggravation and stress that a criminal charge could bring to your spouse, children, family or other relationships.
• Avoid the heavy burden that a criminal charge could place upon your marriage.
• Avoid having criminal charges used against you in future divorce, custody or other legal proceedings.
• Avoid having criminal charges used against you in cases involving the Department of Social Services or other agencies.
• Avoid having criminal charges on your record that will increase the future likelihood of an abuse prevention order being issued against you. For more information on restraining order matters, please click on Expunge Restraining Order Record.
• Save you a tremendous amount of time, anxiety and money in defending an otherwise needless case.

Probation Hearings:

Your failure to comply with the conditions of your probation will oftentimes result in a Probation Surrender Hearing. Even a probationer who is merely charged with a new crime, but not yet actually convicted, will likely face a probation surrender under Massachusetts law. Depending upon your prior criminal record and other circumstances, such as the crime and sentence for which the original probation was imposed and the nature of the alleged new probation violation, it may also result in a Probation Detention Hearing. A Probation Detention Hearing is a device employed by the probation department to "detain" a probationer without bail until the final Probation Surrender Hearing occurs.

The principal goals of probation are rehabilitation and public protection. In addition, punishment, deterrence and retribution are also secondary objectives of probation. Judges have the right to modify conditions of probation but, in order to do so, there must be a material change in circumstances. A probation officer does not have the discretion to alter or modify conditions of probation.

If you are being "surrendered," you must first receive written notice from the probation department which must inform you of the alleged violations. The Probation Surrender Hearing is not to be held less than seven days after the notice is given, unless waived by you, and should not be held later than thirty days, although this rule is oftentimes ignored. There is a right to counsel at the Probation Surrender Hearing and counsel should be given a reasonable opportunity to prepare and present a defense.

A preliminary hearing is required only when a liberty interest is at stake, meaning a probationer is taken into custody because of an alleged violation. If a probationer is incarcerated on other matters at the time of the violation proceeding, there is no right to a preliminary hearing. While the standard of proof for evidence at the preliminary hearing is probable cause to believe the defendant has violated the probation, the standard at the final hearing is preponderance of the evidence.

Strict rules of evidence do not apply to probation violation hearings. Hearsay is admissible if it is reliable and there is good cause to deny confrontation. Illegally obtained evidence, such as statements obtained in violation of Miranda and unlawfully seized evidence, is admissible. The District Attorney may represent the probation department at a Probation Surrender Hearing.

A judge, after finding a probation violation, must determine whether to revoke the probation and sentence the defendant or, if appropriate, modify the terms and conditions of probation. A judge may also simply continue probation. Possible dispositions upon revocation of probation include:

1. Continue on same terms and conditions originally imposed.
2. Impose guilty or juvenile delinquency finding (if on a CWOF).
3. Impose suspended incarceration sentence or commitment to DYS.
4. Incarceration or commitment to DYS.
5. Extend term of probation.
6. Modify conditions of probation.
7. Increase level of supervision.
8. Electronic bracelet monitoring.
9. House arrest.
10. Curfews.
11. Alcohol testing and drug screens.
12. Community service.
13. Terminate probation.

How Can An Experienced Massachusetts Criminal Defense Attorney Help?

• Prevent a conviction from entering upon your permanent criminal record.
• Avoid collateral consequences such as loss of driver's license, employment, financial aid, subsidized housing, government assistance, benefits, etc.
• Prevent the imposition of overly restrictive conditions.
• Advocate in unfavorable situations for reasonable conditions of probation, such as electronic monitoring, stay away orders, curfews, surrender of passports or licenses (motor vehicle or firearms), etc.
• Avoid drug and alcohol testing, counseling and community service.
• Eliminate, stay or reduce the term of your probation.
• Prevent incarceration or juvenile commitment to DYS.
• Save you money in court fees, fines and monthly probation fees.

Bail Hearings:

Bail is money or property posted with the court to secure the release of a criminal defendant. A judge or magistrate conducts a Bail Hearing that can produce different results. You can be released on your own personal recognizance and no bail is set upon your written promise to appear in court and to otherwise abide by your conditions of release. You can be released upon payment of a specified amount of cash bail or bond (bail bondsmen are almost extinct in Massachusetts). You can also be ineligible for bail and denied a release pursuant to the applicable bail statute.

The bail will be returned once the case ends so long as you make all of your court appearances, even if ultimately convicted. However, the bail will be revoked and forfeited to the court if you fail to appear in court or otherwise violate any of your conditions of release.

How Can An Experienced Massachusetts Criminal Defense Attorney Help?

• Secure your pretrial release under the most desirable conditions.
• Advocate in unfavorable situations for reasonable conditions of release or recognizance pursuant to pretrial probation, such as electronic monitoring, stay away orders, curfews, surrender of passports or licenses (motor vehicle or firearms), etc.
• Advise you of your right to appeal if unable to obtain immediate release and the advantages and disadvantages of doing so.
• Alert the court and sheriff as to any special needs if unable to obtain release, such as medical problems, and request the court to order appropriate measures.
• Save you money that would otherwise be tied up as posted bail and subject to possible future forfeiture.

Dangerousness Hearings:

Dangerousness Hearings under Massachusetts General Laws Chapter 275, §58A, a statutory provision used to hold an alleged offender without bail, are considered substantial proceedings in the case. In order to prevail, the prosecution must demonstrate that your release would present a heightened presence of danger to the community because of the likelihood of future brutal assault and/or life threatening violence. Dangerousness Hearings, or 58A Hearings, may occur if you are accused of violent crimes, domestic violence or restraining order violations, depending upon the particular circumstances and especially if you have a history of criminal violent behavior.

How Can An Experienced Massachusetts Criminal Defense Attorney Help?

• Protect your constitutional rights to liberty and freedom.
• Prevent you from being held without bail, effectively being incarcerated during the defense of your case.
• Secure your pretrial release under the most desirable conditions.
• Alert the court and sheriff as to any special needs if unable to obtain release, such as medical problems, and request the court to order appropriate measures.
• Save you unnecessary legal fees for jail consultations.

Probable Cause Hearings or Grand Jury Indictment:

In certain instances, such as when the district court has no jurisdiction over a specific crime or in cases of habitual or egregious offenders, the prosecution may seek to remove the case to the superior court where the range of sentencing is far greater than the district court maximum of 2-½ years. A district court sentence furthermore requires that you be incarcerated in a house of correction whereas a superior court conviction carries a state prison sentence. The prosecution may accomplish its means by way of either a Probable Cause Hearing in the district court or direct Indictment by a Grand Jury.

The Probable Cause Hearing occurs before an Indictment and has a twofold purpose: to test the adequacy of the prosecution's case for binding over and to discover its strengths and weaknesses. You should not present evidence or testify at a Probable Cause Hearing unless there is a sound tactical reason that overcomes the inadvisability of disclosing the defense case at this stage.

The Grand Jury is responsible for deciding whether there is sufficient evidence to indict a criminal defendant. The actual Indictment is the formal written accusation of a crime presented to a court for prosecution against the accused person.

You should immediately consult with an attorney if you become aware that you are the target of a Grand Jury Indictment. The discussion should include the adjudicatory process, including ramifications of your testifying before the Grand Jury since your testimony will be under oath and such Grand Jury testimony may be used against you in future proceedings. Your attorney may be present only to advise you during your testimony but may not speak or be heard by the Grand Jury. You do not have to testify because there is a Fifth Amendment right to remain silent and not be used as a witness against oneself. Remember, an Indictment is not a conviction but rather a presumably defensible charge against you that falls within the jurisdiction of the superior court.

How Can An Experienced Massachusetts Criminal Defense Attorney Help?

• Seek to obtain a Probable Cause Hearing and avoid a direct Indictment unless good reasons exist for a different strategy.
• Insure scheduling of the Probable Cause Hearing so as not to increase the likelihood of direct Indictment.
• Prepare for the Probable Cause Hearing by knowing the elements of all charges and investigating as fully as possible the facts underlying the charges.
• Challenge the prosecution's showing of probable cause on each essential or aggravating element.
• Take advantage of the potential for discovery offered by a Probable Cause Hearing by filing appropriate motions, using compulsory process and sequestering witnesses.
• Request a copy of the tape recording of the Probable Cause hearing for possible use as impeachment at the trial and for trial preparation.
• Advocate at the Probable Cause Hearing, where appropriate, that the court retain jurisdiction over a lesser-included offense.
• Prevent your Indictment at the Grand Jury and avoid unnecessary future legal fees in defending a criminal case.
• Take advantage of the potential for discovery by previewing the prosecution's case at the Grand Jury.
• Review the allegations and your proposed Grand Jury testimony and prepare you to testify, if you decide to testify.
• Advise you during your Grand Jury testimony.
• Assess the need to present exculpatory witnesses and evidence at the Grand Jury.
• File motions to quash any Indictments on the following grounds:
  (a) improper prosecutorial conduct such as bullying jurors, misstatements of law and withholding exculpatory evidence;
  (b) procedural irregularities, improper juror qualifications, reconvening with different grand jurors
  (c) failure to give you adequate and correct notice.

Protect your liberty and freedom interests. Contact us today.

If you face any of the aforementioned criminal hearings in Massachusetts including, but not limited to, the Boston metro area communities of Boston, Brookline, Cambridge, Dedham, Westwood, West Roxbury, New Bedford, Taunton, Brockton, Quincy, Stoughton, Wrentham, Roxbury, Dorchester, Waltham, Concord, Natick and Framingham, please contact us today.

To learn more about a variety of topics in criminal law please click here to go to our Criminal News page. For immediate assistance, call us in Dedham/Westwood, Massachusetts at 781-493-6490.

Law Office of Philip L. Arnel
Attorney at Law
91 Providence Highway (Route 1)
Suite 250
Westwood, MA 02090-1544
Phone: 781-493-6490
Fax: 781-493-6998
Email: philiparnel@arnellaw.com