Information About a Clerk Magistrate Hearing
What Is a Clerk Magistrate Hearing?
A clerk magistrate hearing (or "show cause hearing") is a preliminary judicial process in which a clerk magistrate determines whether a person is to be charged with a crime. The clerk magistrate plays the part of a gatekeeper, and will usually make sure that silly, or unimportant matters do not make it in front of a judge to clog up and already busy court docket.
If you are accused of a misdemeanor, but were not arrested, you generally are entitled to a "show cause" or Clerk Magistrate hearing. They typically happen when:
- you requested a clerk magistrate hearing after receiving a criminal citation (a ticket);
- the police filed an Application for a Criminal Complaint against you; or
- a private citizen filed Application for a Criminal Complaint against you (in court, this is called a "private complaint").
Typically, the person being accused receives a "Notice of Magistrate's Hearing on Complaint Application", which will give you tell when and at which District Court the hearing will be held. The clerk magistrate hearing notice will also tell you which Massachusetts criminal charge you are facing and the police department (or private citizen) that is seeking the complaint. If you call an attorney to speak about your criminal charges, be sure to have this notice handy.
What Is the Process at the Clerk Magistrate Hearing?
Your Case is Called
When your case is called, you'll go to the conference room (or walk to the front of the courtroom). Be polite and say good morning (or afternoon) to the clerk and police officer.
Remember, they will jointly decide whether you're going to be charged with a crime after the hearing, so be respectful at all times.
The Police Prosecutor Presents the Evidence
The town police department seeking the criminal complaint will have a "police prosecutor" handling all the hearings for that town. He or she goes first.
There are no rules of evidence at a clerk magistrate hearing, so the police prosecutor will just read the police report that was written by the officers involved in the charge.
Note that the officer involved in your case will likely not be there, as it is not required to issue the charges.
The Accused Presents Evidence
Once the police prosecutor is done, you (or, preferably, your attorney) will have the chance to ask the police prosecutor questions about the evidence and then give your version of events.
The clerk may ask questions to clarify or challenge your evidence. If you have witnesses, documents or any other evidence, now is the time to present them.
The Clerk Magistrate Makes a Decision
After the evidence is presented, you will have the chance to explain to the clerk why the charges should not issue.
Generally, a clerk will decline to issue charges if
1) there was not enough evidence presented against you; and/or
2) you deserve a break, even if there was enough evidence.
Can I Avoid Charges at the Hearing?
Regardless of how your clerk magistrate hearing came to be, we can help you understand the process and maximize your chances of avoiding a criminal charge altogether. In our experience as criminal defense lawyers all over Massachusetts, clerk magistrate hearings are absolutely winnable and there is an excellent chance of getting a good result. Please contact us and see if we can help!
For a concise explanation about the process, see our video, "What Happens at a Massachusetts Clerk Magistrate Hearing", or the FAQ, below.
Clerk Magistrate Hearing FAQ
You are not required to have a lawyer and could represent yourself, but, in our opinion, this is not advisable. A criminal defense lawyer is familiar with the law, the standards to issue the criminal complaint and the other factors a clerk considers in making a decision. An attorney can also help you prepare properly for the hearing and reach out to the police prosecutor beforehand to see if we can avoid criminal charges before we even walk into the courthouse.
An attorney also shows the clerk that you take the charges seriously and lends credibility to your position. In our experience, having an attorney will greatly increase the chances of making the charge go away and is well worth the expense.
When you first get there, let the clerk's office know you're there for the clerk magistrate hearing and they'll let you know exactly where to wait. In most courts, you wait outside the clerk's office and wait for your name to be called. The hearing is then held in a separate conference room, one case at a time. In other courts, such as Quincy District Court, you'll be directed to a courtroom where you sit in the gallery (the benches) until your hearing is called.
We usually meet our clients in front of the clerk's office either way.
Absolutely, because it's a no-lose proposition and you may have a good chance of avoiding criminal charges even if you did it! This depends on a lot of factors, such as the seriousness of the charge and the facts of your case, but we win them very frequently, particularly on charges such as Leaving the Scene of an Accident, Negligent Operation, Shoplifting or Larceny, minor drug possession and Minor in Possession of Alcohol.
If you don't go, the charges will issue and you'll receive an arraignment date in the mail. This is almost without exception, regardless of what the evidence is and how minor the case.
If you take advantage of the hearing, there may not be enough evidence presented to charge you or the clerk might decide to give you a break even if there is enough evidence. You have nothing to lose and everything to gain!
A clerk magistrate hearing is usually pretty quick (10-15 minutes for a simple case). Waiting for the hearing can be excruciatingly long. You should plan on three hours, but it may be more or less.
No. If we believe that the clerk made the wrong decision and there was not enough evidence to charge you , then we would file a Motion to Dismiss for lack of probable cause in the criminal case itself. This is the only way to challenge a decision following a clerk magistrate hearing.
That depends on your particular case. Sometimes a clerk is happy to hear the arguments only from your attorney and you will not have to say anything.
Other times, the clerk may direct questions directly to the accused, but it's an informal setting and the questions are usually pretty basic.
We may also want you to testify if we decide that it will help your chances of avoiding a criminal charge. Most often your attorney acts as your mouthpiece, and will do all the speaking.
Many of our hearings are conducted without the client having to say a single word.
These are all things that we would discuss and prepare for before the hearing.
You cannot be charged unless a clerk magistrate determines that "probable cause" exists for each offense included in the complaint. Probable cause is defined as:
Reasonably trustworthy information sufficient to warrant a prudent person in believing that a crime has been committed and that the accused is the perpetrator.
It's a very low legal standard and not difficult to meet.
What the "reasonably trustworthy" means is that, unless someone is blatantly and provably lying, the clerk is going to accept what they say as being true and base their decision on that.
This is because matters of credibility are considered to be for a judge or jury to decide, not the clerk magistrate. Even if there is probable cause for the charges, all is not lost, however…
No! That's what makes a clerk magistrate hearing such a good opportunity to avoid criminal charges. Even if there is probable cause, the Clerk can use his or her discretion and decline to issue the charges.
This can often happen for people who don't have any, or at least not a significant, criminal record and relatively minor charges such as Leaving the Scene of an Accident, Negligent Operation, Shoplifting and Minor in Possession of Alcohol, although we have helped clients to avoid much more serious charges.
If we lose at the clerk magistrate hearing, and the criminal charges do issue, it can be for the requested charges or for a different offense, depending on the evidence.
If so, you will be given a date for "arraignment" on the charge, where the formal process begins. At the arraignment, we would go in front of a judge and plead Not Guilty.
Because the clerk's hearing is only to determine if the charges will issue, there is no chance of any punishment being imposed, such as fines or jail time – simply just whether or not your case should enter the judicial system. Such things are left to the court once the formal criminal process begins at arraignment.
There is still a good chance of avoiding a permanent criminal record and this can sometimes be done on the same day as the arraignment so you don't have to go back more than once.
We can also help you figure out your options and the best strategy moving forward.
Where you can find us
1583 Beacon Street • Brookline • MA 02446
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