Most misdemeanors and some felonies are initially addressed in a clerk magistrate hearing. These proceedings are initiated through applications for complaints made to the criminal clerk’s office either by a civilian ore a police officer. The clerk’s office then issues a summons to the defendant indicating the charges being applied for and a date and time for a hearing. At this hearing the complaining party states his or her case against the accused. The person presenting the evidence can be a civilian or a police officer. The defendant can, if he wishes present a defense. The clerk magistrate hears the evidence and decides whether or not probable cause exists to believe that a crime was committed and the accused is the person who committed the crime. If probable cause is found a complaint can issue. Most people who receive a criminal complaint application know this. So I am always baffled when people call and ask me if they need a lawyer for a clerk magistrate hearing.
With Proper Representation a Criminal Complaint Might Not Issue
The standard for issuing a criminal complaint is “probable cause”. It is a very low standard. For all practical purposes when someone says that someone else committed a criminal act a magistrate can issue a criminal complaint. However, they don’t have to do so. In Massachusetts at criminal application hearings the clerk magistrate acts as a “gatekeeper”. In addition to making probable cause determinations they can, in their discretion choose not to issue a complaint. This is often done where the crime is minor, where the accused has no criminal record, where the defendant is young and where issuing the complaint will create unnecessary backlog in the courtroom. For example, I recently represented someone charged with assault and battery at one of these hearings in a Boston courthouse. The complainant said that my client hit him during an argument. My client claimed self-defense. The clerk magistrate knew that my client could apply for a cross-complaint and neutralize the complainant. He mentioned this to the complainant who, fearing his own legal problems immediately withdrew his complaint.
Another one of my client’s had to defend an application for being unregistered and uninsured when driving. Since the time of the incident he registered his car and obtained an insurance policy for it. Even though the magistrate could have issued a complaint he chose not to.
In both of these cases the clients came to me wanting to fight the case. This is what they would have done had they represented themselves. In the assault and battery case the magistrate would have issued the complaint and told the accused that his defense would have to be considered by a judge or a jury. It is not the clerk magistrate’s job determine who did what. Rather, the job is just to make a probable cause determination. The individual with the motor vehicle problems wanted to fight the case by showing that the police officer had no reason to stop him. That too would have resulted in the issuance of a criminal complaint. For both of these guys hiring a lawyer was the right move.
Legal Fees For Clerk’s Hearings Are Much Lower Than They Are For Criminal Cases
The going rate for a clerk’s hearing in Massachusetts ranges from $500 to $2,000. Most of the good, experienced lawyers I know charge between $1,000 and $1,500 for this proceeding. Contrast that to the cost of hiring a lawyer to defend you once criminal charges have issued. You are looking at at least $2,000 and in many cases substantially more to defend the criminal complaint. Simply put, it makes sense to hire a lawyer and get a good result quicker and for significantly more money.
We have been winning clerk’s hearings in Massachusetts for nearly three decades. Call us at 617-263-6800 or send us an email if you receive a criminal application summons. We will help you avoid a criminal complaint.