An important client calls seeking help for a family member who
is being charged by the police with a misdemeanor crime and has
received notice to appear at a magistrate's hearing. A seemingly
small matter such as this can become a big trap for a busy attorney
who wants to keep an important client happy but who has little
experience with the criminal complaint process. How you approach
and handle the magistrate hearing can mean the difference between a
quick resolution to the problem and the creation of a needless
criminal record.
In most instances, a person who is accused by the police of
committing a misdemeanor crime and who is not under arrest is
entitled to a hearing before a magistrate to oppose the issuance of
the criminal complaint. M.G.L. c. 218, sec. 35A. Such hearings for
felony crimes are scheduled only at the discretion of the police,
and hearings for any criminal allegations made by private citizens
are scheduled at the discretion of the magistrate. Id., Victory
Distributors, Inc. v Ayer Division of the District Court
Department, 435 Mass. 136, 142-143 (2001). Affidavits and
police reports filed in support of the application are not always
made available to the accused before the hearing date, so counsel
should check with the court for access to these documents. It is
also a good idea for counsel to contact the police prosecutor
before the hearing date to discuss the case and any possible
resolution. Although the magistrate is not obligated to adopt to
any agreements made between the police prosecutor and counsel, most
magistrates would be open to considering such agreements, because
an important purpose of the magistrate's hearing is to resolve
cases short of issuing complaints. See Eagle Tribune Publishing
Co. v. Clerk Magistrate of the Lawrence Division of the District
Court, 448 Mass. 647, 650 (2007). Resolution can also be
explored during the hearing itself, although the magistrate cannot
adopt a resolution if the police do not agree. Commonwealth v.
Clerk of the Boston Division of the Juvenile Court Department,
432 Mass. 693 (2000).
Magistrate hearings are conducted for the benefit of the accused
so that he may hear the evidence against him. Eagle Tribune
Publishing Co., 448 Mass. at 650. At the hearing, the accused
has a right to be represented by counsel. M.G.L. c. 218, sec. 35A.
The magistrate has the discretion to limit cross examination of the
complainant and complaining witnesses and can also limit the number
of defense witnesses if the testimony would be cumulative or
irrelevant. Commonwealth v. DiBennadetto, 436 Mass. 310,
314 (2002). The magistrate will authorize a complaint if she finds
probable cause supports the criminal allegations. This standard is
met when reasonably trustworthy information shows that the accused
committed a crime. Standard 3:18, District Court Standards of
Judicial Practice: The Complaint Procedure (2008). Although the
magistrate cannot make factual and credibility determinations, she
may refuse to authorize a complaint when the accused presents
evidence that completely undermines the allegations of the
complainant, such as a sound alibi or a defense that raises an
applicable issue of law. Id.
A judge has broad discretion to review a magistrate's denial of
a complaint application. Bradford v. Knights, 427 Mass.
748 (1980). In contrast, any challenge to a magistrate's finding of
probable cause must be by a motion to dismiss after the complaint
has issued. DiBennadetto, 436 Mass. at 313. As a practical
matter, this motion is best brought before arraignment because
motions to dismiss, if allowed, are usually done so without
prejudice, which allows the police to file a second application
correcting the deficiencies of the first application. The results
are serious: if your client is arraigned and the complaint is
dismissed, and then your client is arraigned on a second corrected
complaint after another magisterial finding of probable cause, then
your client will have two separate entries on his criminal offender
record for the same incident. Some attorneys file a "Motion for
Remand" as an attempt to keep the matter limited to the same case
and therefore a single criminal offender entry, however, this
motion is improper because a judge cannot remand the matter to a
magistrate. Id.; Standard 4:00, The Complaint Procedure. When
considering a motion to dismiss, a judge may not review facts or
evidence that were not before the magistrate and is required to
apply the same probable cause standard. Id.
In all, when the police file an application for criminal
complaint, the attorney who works to resolve the matter before the
magistrate hearing will have the most successful and cost effective
result for his client.