In Massachusetts, criminal charges are instituted in different ways. The most obvious is following and pursuant to an arrest. An arrest is not required for a criminal case to begin however. People can be summoned directly to court for arraignment, even if they have never been arrested. They can also be ordered to appear before a clerk-magistrate, for a hearing on whether criminal charges should be instituted (commonly called a “show-cause hearing”). To the uninformed, the latter two may appear to be the same thing. But as any experienced criminal lawyer should be able to tell you, arraignments and show-cause hearings are entirely different types of hearings. Show-cause hearings are conducted by a clerk-magistrate, and not by a judge.  They are scheduled following the filing of an application for a criminal complaint.  Most applications are filed by police officers, though private parties may file criminal applications on their own.  Of course, not every application filed by a police officer results in a hearing with notice to the accused.  There are exceptions when the hearing can be held with only the police officer and clerk present.  If a complaint does issue, the prosecution of the case is assumed by the district attorney’s office.  Contrary to popular belief, from that point onward only the district attorney or judge can dismiss the case.  Despite what some may think, the alleged victim does not make the actual decision.

At a show-cause hearing, the standard for the complaint to issue is very low compared to the standard to convict a person after trial.  All that the clerk magistrate must find to issue a complaint is probable cause that the crime occurred, and that the accused committed it.  Even though the standard is quite low, and the issuance of a criminal complaint only begins the criminal proceedings, a show-cause hearing should never be ignored or taken lightly.  The reason is simple: until a complaint issues, the accused has not been formally charged with the suspected crime.  As such, there is no criminal record yet.  If the clerk declines to issue the complaint, the accused’s criminal record will not be blemished by the accusations in the application for a criminal complaint.

Arraignments are the first stage in a criminal matter following an arrest or show-cause hearing that resulted in a complaint.  At arraignment, the defendant is notified of the charges, and a plea of not guilty is entered on their behalf.  Some cases can be resolved at arraignment.  Many, if not most however, will be assigned a pretrial conference date.  On that date a pretrial conference report is completed by the prosecution and defense, and in most jurisdictions it is filed with the court the same day.  The next scheduled date (if not a motion date) will be the pretrial hearing, often called a “compliance and election” hearing.  At the conclusion of that hearing, the parties have selected the type of trial (bench or jury), and its date.  At a jury trial, a six (district court) or twelve (superior court) person jury will decide the defendant’s guilt or innocence.  At a bench trial the judge alone decides.  If a jury trial is selected but the jury does not unanimously agree, a mistrial will be called and the prosecutor will have to decide if they wish to try the case again.

Despite the above streamlined overview of how a criminal case can proceed, the reality is that the path most cases take to trial is far more complicated.  For example, either the prosecutor or the defense may file motions.  Common defense motions include, without limitation, motions to dismiss (challenging the legal sufficiency of the facts underlying a charge), motions to suppress, and discovery motions.  Further, the same type of hearing may be scheduled on several different dates, especially when there is outstanding discovery being addressed.  No matter what stage a criminal proceeding is in though, one principle always holds true.  An accused has a right to counsel, which should never be waived under any circumstances.  The criminal process is complex, and requires both substantive and procedural knowledge that only training and experience can provide.