Clerk’s Hearings in Massachusetts / Boston Clerk’s Hearings
A Clerk’s Hearing or Clerk Magistrate’s Hearing is the crucial first stage in the process of issuing a criminal complaint when you have not been arrested. Police have the power to make an arrest for all felonies and only those misdemeanors committed in their presence or specifically allowed by statute such as shoplifting or domestic assault and battery. If you are accused of a misdemeanor such as assault and battery, the process by which the government follows to bring formal criminal charges against you is by filing an application for criminal complaint. The stakes at a clerk’s hearing as to whether an application for criminal complaint should be allowed are quite high. If the complaint issues, you will have to appear before a judge in court for arraignment with the result of the charges becoming public and you receiving a criminal record. If your are successful the application for criminal complaint is denied then all records of the hearing are destroyed and there is no public record of the event.
A clerk’s hearing is a unique proceeding because it is the only time prior to a trial where you have the opportunity to present your side of the story so as to convince the clerk not to issue charges against you. Clerk’s hearings are not public hearings and generally not recorded. The assistance of an experienced criminal defense attorney who knows and understands this process is your first and best option for a favorable outcome. For Boston Clerk ‘s Hearings or clerk’s hearings throughout Massachusetts, contact us to learn how we can help.
Protecting Your Rights
Although the rules of evidence at clerk’s hearings are relaxed and hearsay evidence is permitted, lay persons are ill equipped to deal with seasoned police officers who regularly appear at these proceedings and clerk magistrates themselves. Attorney Topazio is familiar with G. L. c. 218, §§ 35 and 35A, the statutory provisions authorizing the issuance of criminal complaints by justices or clerks-magistrates, and is best suited to represent you. Attorney Topazio knows that these laws provide only that the person against whom such complaint is made shall be given an opportunity to be heard in opposition to the issuance of process based on that application for criminal complaint and that a finding of probable cause at the clerk magistrate hearing will result in criminal charges being issued against you. If you received a notice of a clerk’s magistrate hearing in Massachusetts, contact us for a free confidential consultation.
Why You Need Representation
The clerk’s hearing is your best opportunity to ensure no criminal charges will issue against you. Even if you believe you are innocent, telling your side of the story at a clerk’s hearing without an experienced criminal defense lawyer to speak for you puts the lay person in a position that is wrought with perils. The clerk’s function is not to decide guilt or innocence, but rather to find probable cause to believe that a crime was committed. Whether a person is guilty or innocent is a function of trial, not a function for the clerk to decide. Probable cause is the standard of proof applicable at clerk’s hearings which is a very low standard making it easy to attain. According to statute, “the complainant need only present a statement of accusation which in the eyes of the magistrate is complete in terms of the elements of the crime and reasonably believable in terms of its allegations. Once the magistrate has satisfied himself on these two factors, process must issue”. In other words, the clerk magistrate only has to believe that a crime has been committed and you might have committed the crime in order to issue a complaint. Lawyers are trained in the rules of evidence and are better equipped to argue to a clerk magistrate that the facts presented do not meet the probable cause standard.
Attorney Topazio knows how to evaluate the evidence against you and argue on your behalf to a clerk. He may have you speak directly to the clerk depending on the case or speak on your behalf and have you remain silent to protect your rights. Attorney Topazio knows that statements an attorney makes can never be used against you at time of trial unlike statements you might make at a magistrate’s hearing which could be used against you at time of trial. A lay person representing himself often times can underestimate the situation he is in and might miss the significance or subtleties of legal arguments or say the wrong thing because he is too emotional to argue logically. Attorney Topazio will prepare you for the hearing which might include calling witnesses on your behalf or negotiating with the investigating police officer as well as the alleged victim. When probable cause is strong, Boston Criminal Defense Attorney Steven Topazio has the ability to try and persuade the police and clerk magistrate to explore alternate resolutions to your case and can point out legal reason why the case is more appropriately resolvable in the clerk’s session than before a judge.
Attorney Topazio understands the seriousness of a clerk’s hearing and will fight for you to persuade the magistrate not to issue criminal charges against you. If you received a notice for a clerk’s hearing, contact us for a free confidential consultation.