Am I Entitled to a Magistrate Hearing?
In Massachusetts, courts routinely conduct magistrate hearings—a.k.a. “clerk hearings” or “probable cause hearings”—to decide whether there is sufficient evidence for a criminal complaint to issue. If you can successfully show that probable cause is lacking, you can prevent the charge from issuing, and there will be no entry created on your criminal record. A magistrate hearing is also an opportunity to consult with the police to see if they would accept some form of diversion program to delay their application, even if probable cause is found. The hearing usually consists of a clerk-magistrate, a representative from the police department, the defendant, and his counsel. It's a critically important step to stop the criminal process before it begins, so it is equally important to know if you qualify for a magistrate hearing by law.
As a general rule, you are entitled to a magistrate hearing if (1) you’re being accused of a misdemeanor and (2) you were not arrested on the charge. You are not entitled to a magistrate hearing if the police are seeking felony charges. The police may, however, request a clerk hearing on felony applications. This is usually done when police have some doubt as to probable cause. It is worth asking police to consider sending the case to a magistrate hearing as opposed to straight to arraignment. Police have considerable discretion when it comes to magistrate hearings.
Even if you are being accused of a misdemeanor that you were not arrested on, there are several exceptions to your right to a magistrate hearing. In the application for complaint that police fill out, they can indicate that the individual is a flight risk, or is at risk of inflicting repetitive abuse (e.g. multiple instance of domestic violence) thereby allowing prosecutors to bring charges directly without going before a clerk-magistrate.
Attorney Patrick Winn has a track record of successfully representing clients at magistrate hearings. As always, be sure to have a lawyer review the individual facts and circumstances of your case.
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