A practitioner’s guide to surviving a magistrate’s hearing

Issue August 2015 By Beth Pirro Cook

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.