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Clerk’s Hearing Set in Newburyport District Court For Firefighter Accused of Assault and Battery

On April 3, 2013 eight firefighters responded to a call in Rowley, Massachusetts. A shed had burned down and reports stated that the fire was spreading. A couple of hours later everyone returned to the Rowley Fire Station. An argument between the fire chief and one of the firefighter’s followed. Apparently that argument became physical. The police investigated the matter and later that night an application for a criminal complaint was filed in the Newburyport District Court. The case has been scheduled for a Clerk Magistrate’s Hearing next week. The charges being sought are Assault and Battery.

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There is a process for the issuance of criminal complaints in Massachusetts that involve misdemeanors where the accused is not under arrest. The law establishing the procedure is Massachusetts General Laws Chapter 218 Section 35A. That law states that the accused shall be given the opportunity to be heard and to oppose the issuance of the complaint. The exception is where there is an imminent threat of bodily injury, flight or the commission of another crime. The Clerk Magistrate conducting the hearing weighs the evidence and makes the determination as to whether probable cause exists to believe that a crime was committed and that the accused is the person who committed the crime. Probable cause is the lowest standard in the criminal legal system in Massachusetts.

These proceedings, commonly known as Clerk’s Hearings, are limited in scope and for a complaint to issue either the victim or a police officer simply needs to lay out the allegations. There is no right to cross-examine witnesses at these hearings. Once a criminal application is filed by a civilian in Massachusetts a Clerk Magistrate must act on it. The finding of probable cause does not mean however that the Clerk Magistrate must issue the complaint. The clerk can refuse to issue a complaint. The clerk can hold the issuance of the complaint and afford the parties the opportunity to resolve the case without criminal court action. The clerk can continue the matter for a period of time with the understanding that a complaint will not issue provided the accused stays out of trouble or makes restitution. The function of the Clerk Magistrate in these matters is not only to make probable cause determinations but to screen out nuisance or petty cases to help keep the criminal courts running smoothly. Any Massachusetts Criminal Lawyer will tell you that the Clerk Magistrate Hearing is a wonderful opportunity to resolve a case without judicial intervention. This is where jobs, reputations and a person’s liberty can be saved without excessive cost, litigation or embarrassment. Good, experienced clerks know the value of a case and will always work hard to promote justice at its earliest stage. As a matter of fact, a significant number of clerk magistrates in Massachusetts are in fact lawyers and have practiced for years before their appointment.


The Law Offices of Stephen Neyman, PC has handled hundreds of Clerk’s Hearings in Massachusetts successfully. Our office is always opened. Call us at 617-263-6800 or send us an email if you have to go to court. We know that we can help you.