Brockton, Milford and Framingham
In Massachusetts, very often a person who is being accused of committing a crime has not been arrested for it. Instead, he or she receives a Summons (or Notice) to appear for what is known as a “Clerk-Magistrate’s Hearing” or “Show-Cause Hearing.” This Notice advises the accused that an Application for Criminal Complaint against him/her has been filed in a certain district court. It also informs the accused that the court will hold a “hearing by a Magistrate” about these accusations to determine whether it will initiate criminal proceedings against the accused. It also advises him/her of the date of the hearing and the right to appear and be heard at this hearing. Additionally, it warns the recipient of the Summons that if they do not appear at the Clerk’s hearing, a criminal complaint may issue in their absence.
Generally, the accused has a statutory right to be notified of and be heard at a Clerk-Magistrate’s hearing if: (1)he or she has not been arrested and (2)the underlying crime is a misdemeanor – a crime that is not punishable by a state prison sentence. Mass. Gen. Laws c. 218, § 35A. Under the same statute, however, the accused loses his/her right to a show-cause hearing if the Magistrate determines that he or she poses an “imminent threat” of (1) bodily injury, or (2) of the commission of another crime, or (3) of flight from the state of Massachusetts.
While a typical Summons to Appear at a Clerk-Magistrate’s hearing specifically tells the accused that “it is not required that [they] be represented by counsel” at the hearing, it is almost always advisable to contact a qualified criminal defense attorney as soon as such notice is received. It is critical to be represented by a knowledgeable attorney at a clerk’s hearing because your lawyer may be able to present strong arguments and convince the Clerk-Magistrate not issue the complaint, thereby preventing the initiation of a criminal proceeding against you.
A lot of lawyers who are unfamiliar with the process of issuance of a criminal complaint erroneously believe that if a magistrate finds “probable cause” that a crime has been committed and that it was the accused who committed that crime, then the criminal complaint must issue. The Supreme Judicial Court, however, has specifically highlighted the fact that a “a judge or clerk-magistrate can decline to issue a criminal complaint even in cases … where probable cause may exist to support the issuance of complaints.” Victory Distribs. v. Ayer Div. of the Dist. Court Dep’t, 435 Mass. 136 (2001).
Therefore, as soon as you receive a Notice of a Clerk-Magistrate’s Hearing, it is imperative that you contact a criminal defense lawyer, such as attorney Sergey Mikhlin, who is experienced in representing clients at clerk-magistrate’s or show-cause hearings in various district courts of the Commonwealth, to have your options promptly and fully evaluated, explained and protected.