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Legal Insights

Below we share our perspective on various legal forums and issues.
We hope you find this information helpful as you consider options and implications for your own situation.

Clerk Magistrate Hearings: An overview

A Clerk Magistrate Hearing is often either grossly underestimated or completely ignored by soon-to-be-defendants due to a lack of understanding of its importance and a fear of the unexpected. This blog is intended to be an introduction to the magistrate hearing process, and an attempt to briefly explain the mechanics and logistics of it.


A Clerk Magistrate’s hearing is a protection afforded to people within the Commonwealth of Massachusetts. It is a
necessary requirement for all non-arrest misdemeanors pursuant to the Massachusetts Rules of Criminal Procedure.[i] 


Typically, an individual will receive notice of an impending Clerk’s hearing if a police officer or a private individual has
applied to the Court for the issuance of a Criminal Complaint. In most cases, it is the police who apply for the issuance of a Criminal Complaint. This is due to two main factors: 1) Police patrol the streets and witness crimes occur, or they are called to the scene of a crime to conduct an investigation; or 2) Private individuals report crimes directly to the police. Rarely will a private individual go directly to the Courthouse and ask the Court to issue a Criminal Complaint against someone. The Court then notifies the person against whom the complaint is sought of an upcoming hearing to determine if the complaint should issue.

Once in front of a Clerk Magistrate, s/he usually reads from the police report and asks the police officer present (usually a sergeant within the department) if there is any additional information to add. Then the accused has an opportunity to make statements, arguments of law (not fact), dispute the facts (i.e. provide an alibi), ask questions of the police officer, and make a suggestion to the Clerk Magistrate regarding the outcome of the hearing. Ultimately, the Clerk Magistrate will make a decision regarding the matter.

There are four possible outcomes at this stage:

1. Find no Probable Cause exists to issue the Criminal Complaint and dismiss the application with prejudice. This means anyone is precluded from ever applying for a Criminal Complaint seeking to charge the person with the same crime and arising out of the same set of facts.

2. Find no Probable Cause exists to issue the Criminal Complaint and dismiss the application without prejudice. This means that police or an individual may re-apply for the issuance of the Criminal Complaint, if new and additional facts are alleged.

3. The Clerk Magistrate may choose not to make a finding at all. Rather, the Clerk may choose to grant a General Continuance of the application, and usually the Clerk will dismiss the application if the accused does not get into trouble with the law by the end of this timeframe.

4. Find that there is enough Probable Cause to issue a Criminal complaint. If this happens, then a Criminal Complaint is issued against the accused, and s/he receives notice of the Arraignment date. 


In order to issue a Criminal Complaint, a Clerk Magistrate must find that there is Probable Cause to do so. The Clerk must determine whether or not the facts stated in the complaint, if true, constitute a criminal offense to charge an
individual with. The rule is clear in as much as the complaint must contain specific facts to support issuing a Criminal Complaint. Notably, conclusions of law are not sufficient to support a finding of Probable Cause to issue a Criminal Complaint. Generally speaking, it is not enough to state that “Individual Asolicited sex for a fee from individual B”; that is a conclusion of law. However, if a complaint contains specific facts, such as “Individual A approached and offered $ to
individual B in exchange for sex”, then Probable Cause to issue a Criminal Complaint most likely exists because there are specific facts that, if assumed to be true, constitute a crime.

So What!?

A Clerk Magistrate’s hearing is a crucial step in the criminal justice system. It decides whether or not an individual can be charged with a crime. As a result, it also determines whether or not the offense charged would ever be in the individual’s criminal record. If Probable Cause is not found, then the charge will not appear on the individual’s criminal record. However, if the complaint is issued, and subsequently dismissed in court by a judge, then the charge will appear on an individual’s criminal record (unless expunged, or sealed). It is imperative to have adequate legal representation at this initial stage of the proceedings. The outcome of the Clerk Magistrate hearing determines whether an individual will spend any more time, energy and resources in defending against criminal charges. Moreover, it can also impact one’s professional future, as some professions/jobs are reluctant to employ individuals who have been charged with a crime.

The Bottom Line:

Take a Clerk Magistrate’s hearing very seriously and let an attorney help you!

[i] Mass.R.Crim.Pro. 3 (g)

Drinking & Driving:

When the blue lights come-a-knockin’
don’t go-a-talkin’

Understandably, the shock of the loud siren and flashing blue lights is enough to scare the best of us. However, DO NOT PANIC when getting pulled over by police officers.

First, and foremost, it is not a crime to drink and drive. The crime lies within the effects that the drinking may have on the driver and the driving itself if under the effects of alcohol or drugs. Here are some things to keep in mind when you see the flashing blue lights in the rear view mirror after you’ve had a couple of drinks.

1. Police officers are trained to look for cues of intoxication and/or impairment when they suspect a driver may be under the influence. Some notable signs include: odor, blood-shot eyes, odd or erratic behavior and inappropriate language or slurred speech. It is always best to be calm, collected and polite in such circumstances. Being cordial to the officer will serve you well in the short term (while interacting with the officer), and possibly in the future (if you are arrested and
required to go to trial).

2. “You have the right to remain silent!” We have all heard this saying many times, but we rarely take advantage of it. It is always best not to volunteer any information, and even when asked by the police, people have the constitutional right to be silent. I am not suggesting you should remain completely silent, however, anyone would be within his/her legal rights to inform the officer(s) that he/she is declining to answer their question(s). Doing so may arise the officer’s suspicion yet you are not making statements that may potentially be used against you if you are arrested.

3. You also have the right NOT to perform any “tests” the officer may ask of you. While you MUST step outside of the car if asked to do so, your legal obligations end there. This means that anyone has a right to refuse performing any field sobriety tests, and any breathalyzer tests. Also, while getting out of the car, keep your balance and do not use the car as a crutch. Refusal to perform tests may get you arrested on the spot, though evidence to be used against you may be scarce.

4. To blow or not to blow – that is the question. (a) If you blow and your BAC (blood alcohol content) is higher than the legal limit, you automatically lose your license for 30 days (plus there is now almost indisputable evidence that you broke the law). If your BAC is lower than the legal limit, than you are safe* (safe only means you have not violated the OUI statute per-se, or by operation of law); (b) If you do NOT blow, then you automatically lose your license for at least 180 days (first offense). Additionally, if you do not blow, then there is no hard evidence that you broke the law (there still, however, may be circumstantial evidence such as erratic driving, odor of alcohol, slurred speech, bloodshot eyes, etc).

The choice on how to act when pulled over by law enforcement is a personal one. However, when and if we have a few alcoholic beverages, our judgment tends to get impaired, and while we think we are doing the “right” thing, we may be shooting ourselves in the foot! Remember, we have rights and rights are there to protect us.

Finally, no matter what situation you are in, ALWAYS ask the officer to speak with an attorney before you answer any questions or go through any proceedings. “He who represents himself, has a fool for a client.”

***This information is not intended to advocate for or against drinking & driving***

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