In April of 2019, the Boston Globe’s famed Spotlight team ran an multi-part story about “secret courts” in Massachusetts. What the Globe got wrong in this story is that these “secret courts” aren’t a secret at all to experienced criminal defense attorneys.
Clerk Magistrate Hearings play an important role in the Massachusetts Criminal Justice system: they act as a gatekeeping device for many misdemeanors. A defendant is entitled to a Clerk Magistrate’s Hearing if they are accused of a misdemeanor outside of the police’s presence. They can also be requested if a person is given a criminal citation (you have to sign section two of the ticket and return it to the court within four days of receiving the citation). This means if someone accused of you simple assault and battery and you were not present when police arrived, you should get a hearing. It also means that if you were hospitalized after a car accident and received a ticket for OUI, you can request a hearing.
Clerk Magistrate Hearings are held before any charge formally issues. They are usually in a courtroom or even in the clerk’s office. They are usually recorded, but not always. However, they are always closed to the public. The only people in the room will be the accused, their attorney, the clerk, and a police officer or the other person making the accusation.
The question before the clerk at a Clerk Magistrate Hearings is simple: is there probable cause that a crime was committed. If so, the charge will issue, and the accused will be arraigned in open court. If not, the case will be dismissed. Now, probable cause is an extremely low legal standard. It has a complicated definition, but it essentially boils down to, would a reasonable person believe it was more likely than not that a crime occurred.
However, the clerk at a Clerk Magistrate Hearing has great latitude on where or not to actually issue the charge even if there is probable cause. This is because they can hold the complaint from issuing for a period of time with the understanding that if the accused stays out of trouble then the complaint will not issue.
If you are scheduled to have a Clerk Magistrate Hearing, or if you have been given a criminal citation, call DeGiacomo & Mikhlin, P.C. today for a free consultation.
For some examples of Clerk Magistrate’s Hearings that Attorneys James G. DeGiacomo and Sergey Mikhlin have been involved in, click here.