What is a clerk’s hearing?

A clerk’s hearing is a private proceeding in which less serious crimes, misdemeanors, and motor vehicle infractions are presented to a clerk magistrate by the police department to determine whether there is probable cause to issue a complaint.  If the complaint issues, then the case proceeds to an arraignment.  If the complaint does not issue, then the case is over, and it will never appear on your record. The procedure for the commencement of these hearings is governed by G.L. c. 218, § 35A.  Under G.L. c. 218, § 35A, unless there is an imminent threat of (1) bodily injury; or (2) the commission of a crime; or (3) flight from the commonwealth; then the court must (a) give written notice to the person (unless that person is under arrest for the offense for which the complaint is made) of the complaint; and (b) afford that person the opportunity to be heard in opposition to the issuance of the complaint at a clerk’s hearing.

In Gordon v. Fay, 382 Mass. 64, 69-70 (1980), the Supreme Judicial Court noted that the “implicit purpose of the [G.L. c. 218, §] 35A hearings is to enable the court clerk to screen a variety of minor criminal or potentially criminal matters out of the criminal justice system through a combination of counseling, discussion, or threat of prosecution.”  If the clerk magistrate decides not to issue the complaint, the matter is not necessarily over.  In rare cases, the police may request a redetermination by a judge, who may decide to rehear the case or to review the allegations already made before the clerk magistrate.  

There are many benefits to pursuing a clerk’s hearing.  First, the case might resolve at the hearing without any criminal charges proceeding to arraignment.  Second, the clerk may only issue some of the charges or less serious versions of the original charges.  Finally, some courts record the clerk’s hearings and summons in victims and/or witnesses.  It can be very beneficial to your case if you get a sneak preview of the evidence or the opportunity to cross-examine the witnesses well ahead of a trial.  

It is important to be represented by a lawyer at a clerk’s hearing.  A lawyer will be better suited to navigate the clerk’s hearing process in your defense.  Not to be forgotten, a lawyer can speak for you at a clerk’s hearing – otherwise if you represent yourself and contest the charges, you would be waiving your Fifth Amendment right not to testify and possibly providing the Commonwealth with incriminating statements.  

Michael Thaler, Esq.

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