Boston Criminal Lawyer Blog
It is a situation that we have discussed a number of times on the Boston Criminal Lawyer Blog. Yet, particularly since the initial response to getting such a care package from the government is usually panic, it is worth revisiting.
First of all, the good news. What you have received and believe is a criminal complaint is probably not really a criminal complaint.
Although it is not a criminal complaint, it is an extremely important piece of paper that must be treated as such. What you have probably received is a summons to go to court in connection with criminal allegations that are, indeed, being made against you. The summons is likely one of two kinds. You are being summoned to either an arraignment or a clerk magistrate’s hearing.
If you ignore this piece of paper, as further discussed below, you risk being arrested. Plaintly put, you are being summoned to appear in court. Should you ignore or forget about the date the sumons reflects, a warrant will likely be issued by the court, mandating your arrest.
An arraignment is what one usually thinks of when getting a criminal complaint. You are advised by the court of the charges against you. If you were an issue of bail, then it would be decided then. If you are indigent and do not have an attorney, one is provided for you at a relatively nominal fee.
At the arraignment, you will be provided the actual criminal complaint that has been filed against you.
Many people expect that the next court date will be the trial. No, things do not happen quite so quickly. Generally, the next court date will be called a “Pretrial Hearing”. Little preparation is needed other than getting your attorney up to speed as to what is going on.
The arraignment itself will take about three minutes. However, expect to be waiting for a bit. Here is a tip, though, to help prevent waiting around all morning – get there at 8:30am and check into the Department of Probation. Until Probation is able to get your information and run your record, the court will not be in a position to arraign you.
If you had been arrested, rather than receiving the summons in the mail, your experience with criminal justice would have begun at this point. You would have been brought to the court and interviewed by Probation while you were in a cell.
If you are entitled to a clerk magistrate’s hearing, then you are one step before the arraignment. A clerk’s hearing does not occur before a judge. It occurs before a clerk magistrate whose job it is to determine whether there is probable cause enough to issue the complaint against you. Under the law, you do not have to be represented at such a hearing, although you have a right to be.
I would suggest that you bring an attorney who is experienced with such hearings. You see, this is the last stop before having to go to an arraignment. Once you are arraigned, the charges against you are entered upon your record and there they will remain for all to see unless and until the record is sealed. If it can be sealed.
“So, I can just show up with my lawyer, tell the clerk that I did not have the drugs and that it was all a misunderstanding and I can avoided the arraignment?”
Again…no. Standard of whether or not a complaint may issue is a low one. You do not get a whole trial at this juncture. Someone simply needs to make out the elements of the crime and, the complaint may issue. However, with your lawyer’s help, you may be able to show that either the elements are not made out or that, although there is probable cause, the clerk in his or her discretion, should not issue the compliant.
“Well, what if the guy claiming that I punched him in the face is really bad person and probably deserved it?”
The law does not tend to allow “self-help” measures such as this. Whether the complainant is a saint or Bin Laden’s right hand man…you are still not allowed to punch him in the face.
“What if it was self-defense?”
That is a defense…but one that will have to be raised as the case, after arraignment, proceeds to trial.
If you have received one of these little bundles of joy from the state or federal government, do not ignore it. You have a right to not be present at the clerk’s hearing. But then, the complaint will almost certainly issue. You do not have the right to ignore the arraignment, though. If you do not show up, a default warrant will be issued for your arrest.
Bottom line, though, if you get either? Get an experienced criminal defense attorney to advise and represent you. Should you wish to discuss with me, please feel free to call me at 617-492-3000.
In the meantime, have a great, safe and law-abiding weekend!
