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A clerk magistrate’s hearing is a preliminary hearing to determine whether or not the accused will have a criminal or juvenile delinquency complaint issue against him and be scheduled to appear for arraignment for formal prosecution. Normally a police officer files the complaint and related police report with the court, and the court schedules the hearing. A person other than a police officer may also file a civilian complaint. At the hearing, which is less formal than an arraignment, the police officer (or other complainant) explains why the accused should be charged. The accused has a right to be heard but also has a Fifth Amendment right not to answer any questions. The clerk magistrate must determine whether there is probable cause to support one or more charges and therefore issue the complaint.
In Massachusetts, you have a right to a clerk magistrate’s hearing for a misdemeanor case where you were not arrested unless there is “an imminent threat of bodily injury, of the commission of a crime, or of flight from the commonwealth by the person against whom such complaint is made”. The police also have the discretion to apply for a clerk’s hearing with a felony offense.
Cases may be resolved at the clerk’s hearing, including by dismissal for lack of probable cause or by agreement with the police prosecutor or complainant.
The law related to clerk magistrate’s hearings is found in M.G.L. chapter 218, section 35A.
An arraignment in a criminal case is the hearing at which a defendant is formally charged with committing one or more criminal offenses. Because a defendant is presumed innocent, a plea of not guilty is entered on the defendant’s behalf.
At arraignment, the court can hold the accused in jail on bail to ensure the defendant’s appearance in court or release him on personal recognizance, and set conditions of release that the defendant must follow if released into the community. See M.G.L. chapter 276, section 58.
It is at arraignment that an entry first appears on a person’s formal criminal or juvenile delinquency record.
Generally, misdemeanors are less serious crimes, and felonies are more serious crimes.
Specifically in Massachusetts: “A crime punishable by death or imprisonment in the state prison is a felony. All other crimes are misdemeanors.” M.G.L. chapter 274, section 1.
Convicted defendants are subject to fines and/or are incarcerated in either the House of Corrections or state prison in Massachusetts. Each crime listed by statute states the maximum punishment including for incarceration. Effectively, sentences to the House of Corrections are never longer than 2.5 years.
An example of a misdemeanor is assault and battery: “Whoever commits an . . . assault and battery upon another shall be punished by imprisonment for not more than 2 1/2 years in a house of correction or by a fine of not more than $1,000.” M.G.L. chapter 265, 13A.
An example of a felony is armed robbery: “Whoever, being armed with a dangerous weapon, assaults another and robs, steals or takes from his person money or other property which may be the subject of larceny shall be punished by imprisonment in the state prison for life or for any term of years”. M.G.L. chapter 265, section 17.
A Continuation Without a Finding (CWOF) in Massachusetts is a way to resolve a criminal case while leaving open the possibility of a technical dismissal.
A CWOF requires a defendant to admit there are sufficient facts to prove the criminal charge or charges against him and to waive all legal rights associated with a trial. The defendant is placed on probation. If he completes probation successfully, the case is dismissed. If he is found in violation of probation, the judge can enter a guilty finding on his record and either put him back on probation or incarcerate him.
In a criminal case, probation is supervision by the court, usually as a consequence or punishment, though it could also be pending resolution of your case.
The terms of probation are typically ordered by the judge. Examples include meeting with a probation officer, a stay away or no contact order, community service, letter of apology, GPS monitoring, employment, drug screening, and mental health treatment.
Probation is often conditional in the sense that a violation of probation can lead to incarceration. If a guilty plea results in a sentence involving probation, you waive your right to a trial, which means you no longer have the right to contest your guilt. A violation of probation may result in longer probation, additional conditions of probation, or the imposition of a sentence.
Pretrial probation is a specific type of probation where the defendant and district attorney agree for the defendant to be placed on probation without an admission of responsibility or guilty plea. Successful completion of pretrial probation results in dismissal of the case.
Yes, in certain circumstances you are eligible to expunge your criminal record in Massachusetts. Expungement means the record is permanently removed.
Under Massachusetts General Laws chapter 276, sections 100E-100U, there are several options for expungement.
For offenses that occurred prior to your 21st birthday, you may be eligible to expunge your record of a felony once the criminal matter has entirely run its course, including serving all parts of a sentence, after seven years, and for a misdemeanor after three years, as long as you have no further criminal cases. There are certain offenses excluded from eligibility for this type of expungement.
You may also be able to expunge a record if the record involved false or unauthorized use of your identification, an offense that is no longer a crime, an errors by law enforcement, witness, or court employee, or fraud on the court.
In Massachusetts, there are two types of the crime of assault pursuant to M.G.L. chapter 265, section 13A.
An assault is either an attempted battery or an immediately threatened battery. A battery is a harmful or an unpermitted touching of another person. An assault can be either an attempt to use some degree of physical force on another person — for example, by throwing a punch at someone and missing — or it can be a demonstration of an apparent intent to use immediate force on another person — for example, by moving toward someone with your fists raised in a fighting stance.
The maximum punishment for assault is imprisonment for not more than 2 1/2 years in a house of correction or by a fine of not more than $1,000. Assault is a misdemeanor.
Assault can be by means of a dangerous weapon. See M.G.L. chapter 265, section 15B. A “dangerous weapon” is an item designed for the purpose of causing serious injury or death, or a typically innocent item used in a way that reasonably appears to be capable of causing serious injury or death to another person.
The maximum punishment for assault by means of a dangerous weapon is imprisonment in the state prison for not more than five years or by a fine of not more than one thousand dollars or imprisonment in the house of correction for not more than two and one-half years. Assault by means of a dangerous weapon is a felony.
In Massachusetts, there are two types of the crime of assault and battery pursuant to M.G.L. chapter 265, section 13A.
Intentional assault and battery means that a person touched another person and intended to touch that person, and that the touching was either likely to cause bodily harm or was offensive.
Reckless assault and battery means that a person intentionally engaged in actions which caused bodily injury to someone else, and that the actions amounted to reckless conduct.
The maximum punishment for assault and battery is imprisonment for not more than 2 1/2 years in a house of correction or by a fine of not more than $1,000. Assault and battery is a misdemeanor.
Assault and battery can be by means of a dangerous weapon. See M.G.L. chapter 265, section 15A. A “dangerous weapon” is an item designed for the purpose of causing serious injury or death, or a typically innocent item used in a way that reasonably appears to be capable of causing serious injury or death to another person.
The maximum punishment for assault and battery by means of a dangerous weapon is incarceration in the state prison for not more than 10 years or in the house of correction for not more than 2 1/2 years, or by a fine of not more than $5,000, or by both fine and imprisonment. Assault and battery by means of a dangerous weapon is a felony.
In Massachusetts, a threat to commit a crime is a crime itself, pursuant to M.G.L. chapter 275, section 2.
ForAA threat to commit a crime is when a person expresses an intent to injure another person or the property of another, now or in the future; with an intent to convey the threat to a particular person; the injury threatened, if carried out, would constitute a crime; and the threat was made under circumstances which could reasonably have caused the person to whom it was conveyed to fear that the defendant had both the intention and the ability to carry out the threat.
The maximum punishment for threat to commit a crime is a fine of not more than one hundred dollars or by imprisonment for not more than six months. See M.G.L. chapter 275, section 4. Threat to commit a crime is a misdemeanor.
In Massachusetts, the crime of resisting arrest means that a person knowingly prevented or attempted to prevent a police officer from making an arrest, and the officer was acting under color of their official authority at the time. See M.G.L. chapter 268, section 32B. The police officer must be in uniform or, if out of uniform, must identify himself by exhibiting his credentials as a police officer while attempting such arrest.
The resisting arrest law also states: “It shall not be a defense to a prosecution under this section that the police officer was attempting to make an arrest which was unlawful, if he was acting under color of his official authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive force giving rise to the right of self-defense. A police officer acts under the color of his official authority when, in the regular course of assigned duties, he is called upon to make, and does make, a judgment in good faith based upon surrounding facts and circumstances that an arrest should be made by him.”
The maximum punishment for resisting arrest is imprisonment in a house of correction for not more than two and one-half years or a fine of not more than five hundred dollars, or both. Resisting arrest is a misdemeanor.
The crime of intimidation of a witness is very detailed and applies to a broad range of situation, pursuant to M.G.L. chapter 268, section 13B:
“Whoever willfully, either directly or indirectly: (i) threatens, attempts or causes physical, emotional or economic injury or property damage to; (ii) conveys a gift, offer or promise of anything of value to; or (iii) misleads, intimidates or harasses another person who is a: (A) witness or potential witness; (B) person who is or was aware of information, records, documents or objects that relate to a violation of a criminal law or a violation of conditions of probation, parole, bail or other court order; (C) judge, juror, grand juror, attorney, victim witness advocate, police officer, correction officer, federal agent, investigator, clerk, court officer, court reporter, court interpreter, probation officer or parole officer; (D) person who is or was attending or a person who had made known an intention to attend a proceeding described in this section; or (E) family member of a person described in this section, with the intent to or with reckless disregard for the fact that it may; (1) impede, obstruct, delay, prevent or otherwise interfere with: a criminal investigation at any stage, a grand jury proceeding, a dangerousness hearing, a motion hearing, a trial or other criminal proceeding of any type or a parole hearing, parole violation proceeding or probation violation proceeding; or an administrative hearing or a probate or family court proceeding, juvenile proceeding, housing proceeding, land proceeding, clerk’s hearing, court-ordered mediation or any other civil proceeding of any type; or (2) punish, harm or otherwise retaliate against any such person described in this section for such person or such person’s family member’s participation in any of the proceedings described in this section”.
Typically, the maximum punishment for intimidation of a witness is incarceration in the state prison for not more than 10 years or by imprisonment in the house of correction for not more than 2 1/2 years or by a fine of not less than $1,000 or more than $5,000 or by both such fine and imprisonment. Intimidation of a witness is a felony.
In Massachusetts, there are a variety of breaking and entering crimes.
One example is breaking and entering a building or vehicle in the nighttime with the intent to commit a felony, pursuant to M.G.L. chapter 266, section 16. This crime requires that the defendant broke into someone else’s building or vehicle, entered that building or vehicle, with the intent to commit a felony in the building or vehicle, and during the nighttime. The accused must exert any type of physical force to remove an obstruction to gaining entry, and go into a protected enclosure with any part of the body. Nighttime begins one hour after sunset and ends one hour before sunrise the next day.
The maximum punishment for breaking and entering in the nighttime with intent to commit a felony is imprisonment in the state prison for not more than twenty years or in a jail or house of correction for not more than two and one-half years. This crime is a felony.
In Massachusetts, possession of controlled substances is a crime, including certain drugs and prescription medicine without a prescription. The list of controlled substances is in M.G.L. chapter 94C, section 31. Some examples of controlled substances include heroin, cocaine, ecstasy, ketamine, LSD, amphetamine, and psilocybin.
You have to knowingly or intentionally possess some perceptible amount of the controlled substance. See M.G.L. chapter 94C, section 34.
Though possession of marijuana is mostly decriminalized, there are some regulations in place that must be followed, and generally you cannot possess more than one ounce. See M.G.L. chapter 94G, section 13. The Massachusetts Cannabis Commission has additional information about laws regulating the possession of marijuana and penalties for related violations.
Usually the maximum punishment for unlawful possession of a controlled substance is imprisonment for not more than one year or by a fine of not more than one thousand dollars, or by both such fine and imprisonment. For heroin as a first offense, it is imprisonment in a house of correction for not more than two years or by a fine of not more than two thousand dollars, or both, and for a second or subsequent offense it is imprisonment in the state prison for not less than two and one-half years nor more than five years or by a fine of not more than five thousand dollars and imprisonment in a jail or house of correction for not more than two and one-half years. Unlawful possession of more than one ounce of marijuana has a maximum punishment of imprisonment in a house of correction for not more than six months or a fine of five hundred dollars, or both. Most of these crimes are misdemeanors except for heroin as a second or subsequent offense.
In Massachusetts, possession of a firearm without a license outside your home or business is against the law, pursuant to M.G.L. chapter 269, section 10(a).
This applies to situations where you knowingly possess a firearm, rifle, or shotgun outside your home or place of business without a valid license to possess the firearm. There are certain exemptions listed in M.G.L. chapter 140, section 129C.
The maximum punishment for unlawful possession of a firearm without a license is incarceration in the state prison for not less than two and one-half years nor more than five years, or for not less than 18 months nor more than two and one-half years in a jail or house of correction. Unlawful possession of a firearm is a felony.
In Massachusetts, there are two different drunk driving crimes – operating a motor vehicle with a blood alcohol percent .08 or greater or under the influence of alcohol is a crime – pursuant to M.G.L. chapter 90, section 24.
To be guilty of these, a person must operate a motor vehicle on a public way while either a) having a blood alcohol percent .08 or greater or b) being under the influence of intoxicating liquor at the time of operation. It is not illegal simply to drive after consuming alcohol. For operating under the influence (OUI), the influence of alcohol must reduce your ability to operate a car safely, by decreasing alertness, judgment, and ability to respond promptly and effectively to unexpected emergencies, and by reducing mental clarity, self-control, and reflexes, thereby leaving you with a reduced ability to drive safely.
The maximum punishment for operating a motor vehicle with a blood alcohol percent .08 or greater or under the influence of alcohol is a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment. This crime is a misdemeanor.
OneLaw represents the accused at all stages of the criminal justice process, from investigation by the police, to clerk magistrate’s hearings, to jury trials, and appeals.
You absolutely need an attorney once you are aware the police are involved, whether that be an arrest or investigation. Make sure not to speak with the police until you get advice from an attorney first, as you have the right against self-incrimination under the Fifth Amendment to the United States Constitution and Article XII of the Massachusetts Declaration of Rights. You also have the right to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Article XIV of the Massachusetts Declaration of Rights.
When you receive notice of a clerk magistrate’s hearing or arraignment, contact an attorney if you do not already have one. An attorney is necessary to ensure the best outcome in court, whether that be a dismissal or another favorable outcome depending on the circumstances of your matter.
We navigate the justice system with zealous advocacy and ensure our clients understand every aspect of the process. We will argue that you not be held in custody, file a motion to dismiss and motion to suppress evidence if necessary, hold the government to account, safeguard your constitutional and statutory rights, and litigate the alleged crimes at trial because ultimately the standard of proof beyond a reasonable doubt must be met with credible evidence, and if a jury is the trier of fact, the decision of guilt or innocence must be unanimous.
OneLaw specializes in representing young adults and people with disabilities and mental health challenges in criminal cases because there are often unique issues at play for these defendants that must be considered when lodging a vigorous defense in court.
We also represent victims in criminal matters to ensure their voice is heard throughout the criminal justice process. Massachusetts has a Victim Bill of Rights that affords access to information and participation in the justice process for victims of crimes.