Clerk-Magistrate’s Hearings

We routinely represent people in clerk-magistrate’s or “show cause” hearings in Massachusetts criminal courts. A show cause hearing is the first step in some criminal cases, where instead of arresting the person being accused of committing a crime, the police or another person fills out an application asking the court to issue a criminal complaint. Because this step happens before a criminal complaint is issued, the show cause hearing gives you the opportunity to prevent a complaint for issuing, and thus prevent a criminal case against you from being filed. It is crucial to take show-cause hearings seriously and put on the best possible case to try to prevent a complaint from issuing.

If you are required to attend a show cause hearing the court will send you a notice of the hearing in the mail, and should send you a copy of the application for the complaint. If you cannot attend the hearing on that date you may call the clerk’s office to see if the hearing date can be changed.

What happens during the hearing?

A clerk magistrate of the court presides over the hearing. The hearing is generally not done in a courtroom, but rather in the clerk’s office or a small meeting room designated for that purpose. You have the right to be represented by an attorney during the hearing, the right to tell your side of the story (which your attorney may or may not advise you to do), to bring any evidence that you believe is relevant, and to bring witnesses to testify. The alleged victim also will receive notice of the hearing, and may appear to testify or bring witnesses to testify. If a police officer has sought the application, a police officer will appear to testify as to what he or she knows, or to read the police incident report to the magistrate.

The hearings are generally not recorded, and the rules of criminal procedure do not apply in a magistrate’s hearing, meaning that evidence that would be excluded in a criminal case, such as hearsay, is allowed at the hearing. After hearing the evidence the clerk will determine there exists “probable cause” to believe that a crime has been committed. “Probable cause” is a very low standard; the person seeking the complaint only has to present “reasonably trustworthy” evidence to convince a reasonable person that you have committed a crime.

There are three possible outcomes of a show cause hearing. If the clerk believes that probable cause exists, he or she will issue a complaint charging you with a crime. A criminal case will then be opened, and you will be arraigned. At that point, public records of the case will be generated that will stay on your record even if you are eventually found not guilty or the case is dismissed. If a criminal case is brought against you, you will subsequently have to answer when asked that you have been charged with a crime, even if you were never found guilty. There is no appeal from the clerk’s decision to issue a complaint; in most cases your next opportunity to have the case dismissed comes after you have been arraigned and the case has been opened.

Alternately, if the clerk believes that there is no probable cause, he or she will dismiss the application for the complaint. No public records are generated during the show cause hearing, and if the application is dismissed it will be as though it never happened. If a complaint is denied, the complainant has the right to ask a judge for a redetermination, meaning the judge will examine the case again and make a new decision. It is up to the judge to decide whether to review only the materials presented to the clerk magistrate, or to allow new materials or witnesses to be presented.

Finally, the clerk may decide to “hold” the application. This means he or she will not immediately dismiss it, but will hold it for a certain period of time (often six months or a year) and then dismiss it at that point if there are no further allegations by the complainant. While the application is being held you have not been charged with a crime, and no public records are generated.

Do I need a lawyer?

Although they seem informal, show cause hearings are a very important step in criminal proceedings. A show cause hearing is your one chance to get rid of the case against you before you are formally charged with a crime and that charge becomes a part of your permanent record. Your goal at the hearing is to convince the magistrate that there is not sufficient evidence that makes it more likely than not that you have committed a crime; having a criminal defense lawyer who understands the elements of the crimes at issue and how the evidence relates to those crimes can make the difference between a complaint issuing and a complaint being dismissed. A lawyer can also advise you as to the benefits or drawbacks of testifying on your own behalf at the hearing.

The attorneys at Zalkind Duncan & Bernstein have years of experience representing clients in show cause hearings in courts around Massachusetts, and can help you craft the best approach to your hearing to maximize your chance of having the complaint dismissed. In each case we handle we try to work with police and complainants to determine if there is a way to resolve the issue before the show cause hearing, and we conduct thorough investigations to obtain evidence to present at the hearings when they go forward. We also help clients who may need to seek their own cross-complaints against the person bringing the complaint against them.

If you are facing a show cause hearing, call us at (617) 742-6020 to get experienced legal representation for this process.

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