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.

“WHAT IS A CLERK MAGISTRATE HEARING? DO I NEED A LAWYER?”

Some time has gone by since your altercation with Righteous Ricky. The fight was short, alcohol driven, and he looked the worse for wear afterwards. The last contact you had with Ricky was when the fight ended and he said he was going to “sue you for assault and battery”.

That was a couple of  weeks ago.

Today, you came home to find a summons in the mail from your local district court. It is saying that there is a “Clerk Magistrate Hearing” scheduled against you because of the fight and your “assault and battery” on Ricky.

You raced over to your computer and googled the subject at “Mass.Gov.”  and you read the following;

If you are accused of committing a misdemeanor crime and you are not arrested, you are generally entitled to a “show cause hearing”. The hearing is held before a district court clerk magistrate to determine if there is probable cause to believe you committed a crime. You may also request a show cause hearing within four days of receiving a motor vehicle citation that charges only misdemeanor offenses. The hearing is generally not open to the public but you may bring witnesses. The magistrate will determine whether there is sufficient evidence to issue the complaint. When you arrive at the court building you should go the district court criminal clerk’s office and ask where your show cause hearing will be held.

If the magistrate finds probable cause a complaint will be issued and you will be given a date to appear for your arraignment.

You read the page and the links four or five times until finally looking up to the sky pleading, “But this is nonsense! Do I need a lawyer? Is this on my criminal record?”

“What the hell do I do now?”

 

Attorney Sam’s Take On The Importance Of A Clerk Magistrate’s Hearing

The first thing to do is calm down. Catch your breath. As usual, consult your handy dandy Attorney Sam’s Take or even give him a call.

No, the matter is not on your CORI, or criminal record. Yet.

You are, however, at a very important turning point with what could potentially be a real criminal justice nightmare.

Rick has gone to the local district court and has filled out an affidavit alleging that you treated him to an assault and battery. The court sent you notice to a hearing before a court clerk to determine whether there is “probable cause” to believe that you committed a crime.

Probable cause is what the police need to lawfully arrest someone. It is a fairly low burden of proof. Miles away from “beyond a reasonable doubt” which is the burden the prosecution must meet at any trial.

Here, what is at issue is whether there is enough to officially bring criminal charges in the first place.

The hearing itself is not as formal as a trial. However, it is not completely casual. There is no prosecutor and most rules of evidence do not apply. Ricky and witnesses on his behalf will most likely be given a chance to speak as will you and any witnesses for you.

“What if I lose the hearing?”

Then you will be left defending a full fledged criminal case. And, as of the next court date, the arraignment, the matter will be on your record and a prosecutor assigned to prosecute you.

“If I win?”

Then you won’t be. The matter will be tossed. There will be no record of it.

“And I don’t need a lawyer for this, right?”

Well, that is up to you. There is no absolute legal mandate that you be represented. Nor is there a requirement that you even show up! On the other hand, if you do not show up, the complaint is probably going to issue.

The question is how important it is to you. Law enforcement would most likely prefer you not get a lawyer.

Remember that “probable cause” is a very low threshold. Further, there are times when a clerk magistrate can be persuaded not to issue the complaint even if probable cause is found. However, the arguments vary and can be best pressed by a lawyer used to such hearings.

There are also connected issues about which you may not be aware. Things like your Fifth Amendment issues and how testifying at the hearing could hurt you should there be a trial.

My advice would be that you absolutely have an experienced attorney help prepare for and represent you at the hearing. There is a great deal at stake.

…But maybe you are the gambling type.

 

 

 

 

Contact Information