Westwood/Dedham, MA Criminal Attorney

There are certain offenses, typically misdemeanor crimes without an arrest, for which an accused is afforded a clerk magistrate hearing prior to formal charges being brought by the issuance of a criminal complaint. This hearing is also commonly referred to as a show cause hearing or a clerk's hearing, and occasionally but incorrectly referred to as a probable cause hearing, which is another type of post-arraignment hearing.

When either the police or a private party (both are referred to as the "complainant") file an "application" for a criminal complaint with the court, the accused is sent a notice in the mail to appear before a clerk magistrate in a criminal show cause hearing.

Contact a Dedham/Westwood lawyer at the Law Office of Philip L. Arnel.

The purpose of this clerk's hearing is to determine whether there is sufficient evidence to bring formal criminal charges against you. The complainant must produce enough evidence to show "probable cause" that the crime was committed. If you need help with this type of hearing, contact Attorney Philip L. Arnel today to schedule a free initial consultation.

There Are Three Possible Outcomes of a Criminal Show Cause Hearing

The three possible outcomes from this hearing are:

(1) the denial of the application

(2) the continuance of the application

(3) the issuance of the criminal complaint. Denying the issuance of the criminal complaint occurs if probable cause is not found or it is otherwise stipulated. The matter can also sometimes be continued (that is, kept "open") whereby the criminal complaint will issue only if you are later charged with committing another alleged criminal act or otherwise fail to comply with a specific contingent condition during the continuation period.

Though the issuance of the criminal complaint is not a barometer of your eventual guilt or innocence, the charge will nevertheless appear on your permanent criminal record ("CORI") once you are arraigned.

Oftentimes, you will not be entitled to or afforded the opportunity to be heard at a Clerk's Hearing and a criminal complaint will instead directly issue. Unless you are arrested and transported to court, you will otherwise receive a summons to appear for the arraignment, which is typically the initial court appearance at which the reading of the alleged criminal charge occurs and at which the court thereafter automatically enters a plea of not guilty on your behalf.

In past years, the "remand" was common legalese and oftentimes ordered by the courts, despite that the legislature never enacted an actual remand statute.

Massachusetts courts have now almost completely abolished this tactic and motions to remand a case to a show cause clerk's hearing are routinely denied. As a result, even many attorneys and judges alike are unaware that it is still possible, albeit rare, upon a joint oral motion and showing by the defense or prosecution to the court, to have a case "removed" from the docket list and then down-graded to a clerk's hearing.

This procedure is most easily facilitated if it is motioned before the arraignment occurs, though this is rarely done since most accused persons have not yet had a chance to retain legal counsel at that early stage. However, it can also possibly occur after the arraignment, assuming that the judge can be convinced that justice requires a dismissal of the case "nunc pro tunc" (that is, retroactively) to a time that is immediately prior to the arraignment and provided that this specific wording is clearly and legibly entered upon the docket sheet.

This is the only way, after you have been previously arraigned, that the court's probation department can then forward the requisite paperwork to the Office of the Commissioner of Probation to request it to "expunge" (that is, permanently erase as if it never existed in the first instance) the entry of dismissal from your criminal record, though there is no absolute guarantee of eventual expungement. Attorney Arnel has successfully achieved this rare outcome on notable occasions.

At the clerk's hearing, witnesses are placed under oath so that the evidence is presented under the pains and penalties of perjury. Despite that sworn testimony is given, formal rules of evidence are usually relaxed.

Though not entitled, defense counsel is oftentimes permitted limited cross-examination of prosecution witnesses. It is also customary for the police prosecutor to be present at the hearing instead of the actual witnessing police officer, as there is no requirement that the witnessing officer is present and, as such, the complaint may be issued solely on the basis of hearsay.

The defense is, however, permitted to summons any witness, including the witnessing officer, and this should be considered if there are no other viable options to dispute the allegations, again with the caveat that the defense can be denied the opportunity to cross-examine the officer at the hearing.

As previously stated, the standard of proof required for a clerk-magistrate to issue a criminal complaint is "probable cause," that is, there must be probable cause to believe that the accused has committed the crime. Though it is not an especially high burden for the complainant to meet, it is of some comfort to note that a clerk's finding of probable cause does not necessarily mean that you will later be convicted, as the prosecution's task will then be significantly higher whereas its burden will be "proof beyond a reasonable doubt."

It is again emphasized that, even in instances where probable cause is found to support the issuance of a complaint, the clerk magistrate can oftentimes be convinced to decline to issue the same.

The application for the criminal complaint can be kept open for a period of time, typically for six to twelve months, either with or without other specific conditions such as, amongst other things, paying court costs or restitution, attending counseling or obeying a stay away order.

This preliminary disposition is somewhat similar to a continuance without a finding that can be imposed by a judge, but without having to admit to sufficient facts for a finding of guilty, without giving up your constitutional right to a trial or appeal, and without being placed on actual administrative or supervised probation. For a brief discussion on a continuance without a finding, please click on Criminal FAQ.

However, unlike with a continuance without a finding, a clerk's continuance that results in an eventual denial, and ultimate destruction, of the application does not have the adverse consequences of having the criminal charge entered upon your permanent criminal record which could significantly affect future legal proceedings, employment, schooling, housing, loans, gun licensing, etc.

For more information on the adverse consequences of having a criminal record, please click on Seal or Expunge a Criminal Record.

BEWARE!!! Since they have not yet been formally charged, many accused make the potentially colossal mistake of taking this critical stage of the legal proceedings too lightly, as they become naturally tempted to proceed without legal representation in the hope of saving an otherwise one-time legal fee.

It has been said that "sometimes cheap is expensive," so be cautioned not to fall into this perilous trap for, if a criminal complaint issues against you, it could ultimately cost you thousands of dollars more in legal fees, lost time and business opportunity, as well as your driver's license, public housing, financial aid, personal loans, business loans, home loans, public benefits, government assistance, gun licensing and, not to mention, your job and good reputation.

Many personnel working in clerk magistrate offices will routinely advise you that you do not need a lawyer for the hearing. That wary advice is ill-conceived and wrong!

Remember, this is the one and only opportunity that you will be given to prevent a criminal complaint from issuing against you — one that could conceivably result in catastrophic and life-changing consequences! It is therefore critical to always have an experienced and savvy attorney to protect your rights at a show cause hearing.

How Can an Experienced Massachusetts Criminal Defense Attorney Help?

  • Procure a dismissal or otherwise negotiate a favorable agreement for you at the show cause clerk's hearing such as, amongst other things, having the proceeding continued and the application kept open for a period of time in contemplation of dismissal provided that all of the requisite conditions are satisfied
  • Prevent you from being summonsed to court and named as a criminal defendant
  • Prevent you from having a damaging criminal charge being entered upon your permanent criminal record, even if the charge is later dismissed or you are acquitted after trial
  • Prevent you from incurring significant future legal expenses to attempt to "seal" your criminal record and avoiding the uncertainty of the outcome
  • Avoid the stigma and public embarrassment of you being an accused criminal
  • Avoid potential financial loss or other problems in your business affairs
  • Avoid the embarrassment, humiliation, aggravation and stress that a criminal charge could bring to your spouse, children, family or other relationships
  • Avoid the heavy burden that a criminal charge could place upon your marriage
  • Avoid having criminal charges used against you in future divorce, custody or other legal proceedings
  • Avoid having criminal charges used against you in cases involving the Department of Social Services or other agencies
  • Avoid having criminal charges on your record that will increase the future likelihood of an abuse prevention order being issued against you. For more information on restraining order matters, please click on Expunge a Restraining Order Record
  • Save you a tremendous amount of time, anxiety and money in defending an otherwise needless case

You do not have to face these proceedings alone. Contact experienced criminal defense attorney Philip L. Arnel today to schedule a free initial consultation.