Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Attorney Sam’s Take: You Have To Go To Court Tomorrow For That OUI Or Assault Case (Part One)

You live in Boston. You arer relaxing at home, watching the children play with their new Christmas gifts before they break them. It is a Norman Rockwell scene…except for one tiny detail. You suddenly remember that invitation (summons) you received last week to witness Massachusetts jurisprudence (court) in action. In other words, you have to go to court to answer on that drunk driving charge tomorrow and you still have not even contacted a lawyer!

Game over? Just give up and expect you won’t be returning home for a couple of years? Maybe it is time for that extended vacation out of the country you always dreamed about?

Well, chances are, particularly if you had received a summons and were not arrested, it is not that bad. There are, however, a few things you should know and at least one thing you should do.

First of all, the summons was for one of two things – either an arraignment or a clerk magistrate’s hearing.

As most readers of this daily blog know, a clerk’s hearing is basically the last step before arraignment in cases in which you have been lucky enough to get one. It is the hearing to decide whether or not there is probable cause to issue the complaint which would bring you to an arraignment. At such a hearing, a clerk magistrate listens to evidence presented (sometimes solely by an investigating officer) and decides whether the elements of the accused crime are met. It is a very simple, and low, standard. Should the clerk find that there is probable cause, a complaint will be ordered and the next step will be arraignment.

Some people ask legal advice as to such hearings of police officers…sometimes even the one bringing the charges. They contact Police Officer Gotcha and ask if they need to have a lawyer with them when answering the charge that they treated their neighbor to a knuckle sandwich.

The typical answer from law enforcementm, not surprisingly, is, “Nah.”

No, why would you have a lawyer represent you when you are being accused of the crime of assault and battery?

In a way, Officer Gotcha is correct. There is no legal requirement that you bring an attorney. Better yet, there is no legal requirement that you even show up for the hearing. On the other hand, there is no legal statute that forbids you from satisfying your thirst by guzzling a bottle of Draino either.

Simply put, if you do not show up at the hearing, you are almost guaranteed that the complaint will issue and that you will next be making a live appearance at an arraignment session. You could show up without a lawyer. However, to do so, in my opinion, would be foolish.

“Why ‘foolish’? Aren’t I capable of telling the clerk what happened? After all, my neighbor is a liar and annoying and that is why I…wanted to…whack him in the first place!”

Your neighbor may turn out to be the most despicable creature to slither into the courthouse that day. This will probably not matter.

Your reptilian neighbor only has to make out the elements in his recitation of the facts to the clerk. Frankly, it is not going to matter too much what you have to say. In most cases, the clerk is not going to base the decision on whether she likes your neighbor, which one of you is more believable or whether she would like to take a crack at your neighbor herself.

“Well, Sam, if it is so hopeless, then why hire a lawyer to accompany me? I don’t need hand-holding that badly.”

The purpose of bringing an experienced criminal defense attorney with you is not to simply make the process emotionally easier for you. It is to take advantage of any opportunity to prevent the issuance of the complaint. There are such opportunities in many cases and having the experience of dealing with these hearings affords the lawyer the expertise to spot them. For example, sometimes, you can negotiate something with the officer or complainant. Sometimes you can even convince the clerk to find probable cause but not issue the complaint.

Only your experienced attorney is going to be able to spot these opportunities and make the most out of them.

“Well, if they find against me and issue the complaint, are they going to lock me up then and there?”

“No. The issue of bail does not come into being until the arraignment or upon an actual arrest…which is not the purpose of this hearing.”

“So what’s the big deal? Why not wait until arraignment to hire the lawyer?”

Because by then certain damage has been done. Once you are arraigned, this case goes onto your record, what we refer to as your “CORI”. Once there, it will not be expunged. In some cases, it can be sealed, but you usually will have to wait for at least 10 years for that to happen. In the meantime, it is something you will have to live with whenever applying for school or job placement. This will be true whatever the result of the case in most cases. If the matter results in a straight dismissal or a not guilty finding, you may not have to wait the 10 years, but it will take some time and money to get it removed.

Wouldn’t it be better if it never got there? Plus, law enforcement will still have access to such records even if the record is sealed.

“But even though my neighbor tricked the clerk, the judge and jury will see right through him and find in my favor right away, right? I mean, he is an annoying liar, remember?”

Got it…but, no. There will be no jury to hear the case for many months and, in the meantime, no judge is going to listen to the evidence in a mini-trial for purposes of throwing the case out. Chances are, unless you have an extra-ordinary prosecutor and demonstrably lying complainant, the case is going to go the distance if you want a dismissal or acquittal. Strap yourself in for the ride.

So, the bottom line is that, while not legally required, you should have an experienced criminal defense attorney represent you at the hearing. Other than that, if you are going to give testimony, go over said testimony with the lawyer as well as review any documents you have that may help. Then, follow his/her lead. It is as simple as that in clerk’s hearings. Expect the hearing itself to last somewhere between 5 and 15 minutes in most cases.

If you are facing such a hearing and you wish to discuss it with me, please feel free to contact me at 617-492-3000. Tomorrow, we will continue this topic, but move onto the scenario where the summons is for an arraignment.

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