In addition to questions about specific charges and facts of the case, our clients often want to understand the process of a criminal case.  We are commonly asked, “How long will this take?” or “What are the next steps?”  Such questions are completely understandable and reasonable, which is why we wrote this article to help you or someone you know understand what is next.

Unlike TV shows such as The Practice, Law and Order and L.A. Law, nobody gets arrested on Wednesday and has a trial on Friday.  In reality, the process will take months, and in some cases, a year or more to complete.  However, like most things under the law, there is a specific process which is detailed in the many rules set out by the Court as to just how a criminal case proceeds.  With a few exceptions/differences (discussed below), the process is the same for the Juvenile Courts and District Courts in Massachusetts.

Beginning at the End

At the outset, we want to let you know that how long or what path your case takes often depends on how the case is resolved.  While there are many types of paths or dispositions that can come out of a criminal case, there are only 3 ways in which it can be resolved in the trial court.  These are:

  1. Plea or Negotiated Settlement (usually involves some type of fine, probation or jail sentence)
  2. Dismissal (Court dismisses case for lack of evidence or some other technical legal reason)
  3. Trial (Full hearing before a judge or jury with a verdict of either guilty or not guilty)

How long your case takes will depend on the strategy and path decided by you and your attorney as to how to best resolve your case.  We will talk about the case process from your first interaction with the police or court all the way through to a trial.  Depending on how you decide to resolve your case, some of the steps may or may not apply.  For instance, some people just want the case to be over as soon as possible and have no interest in going to trial or otherwise fighting to clear their name.  They want to accept their punishment and move on.  A case like this will likely be resolved by some sort of a plea or negotiated settlement.  It may take only one or two court appearances to get this accomplished.  This can be relatively quick, as compared to someone who fights the process all the way to the end and may ultimately have a trial.

How Did Your Case Get to Court?

Just like the limited ways in which a criminal case can be resolved, there are also only 3 ways your case gets to court.  These are:

  1. The police arrest you.
  2. The police request that you are summonsed to appear in Court on a particular date.
  3. A civilian requests that the Court issue charges and you get a summons to appear in Court on a particular date.

The process will be somewhat different depending on which of the 3 ways your case gets to the court.

  1. You are Arrested:

After the police arrest and book you, one of two things is going to occur.  Bail will either be set by a bail commissioner and you can be released with instructions on when you have to appear in court or the police will bring you to the Court as soon as possible (usually the same or next day).  In either of these cases, your first appearance before the court will be your arraignment (discussed below).

  1. The Police Request a Summons:

What happens next is going to depend on the type of charges the police are seeking.  If the charge or charges are for misdemeanors (lesser crimes), the summons you receive will be to appear at a clerk magistrate’s hearing.  If one or more of the charges sought by the police are for a felony, then the summons will be for an arraignment before a judge.

Driving Offenses are Different: If you are stopped for traffic crime (i.e., driving without a license, negligent operation of a motor vehicle, etc.), and not arrested you should receive traffic citation / ticket.  If the box is checked that one or more of the offenses is criminal, you will have the right to have a hearing before a clerk magistrate.  However, you must act quickly. You must sign the back of the ticket requesting a hearing and bring the signed ticket to the District Court having jurisdiction (should be listed on the front lower right-hand corner of the  ticket) within 4 days. If you do so, then the court will schedule a clerk magistrate’s hearing and you will receive notice by mail as to when that hearing will take place.

Learn more about this particular process by reading the Contant Law Article The Process to Appeal Civil and Criminal Traffic Offenses.

  1. A Civilian Requests Charges Against You:

Many people don’t realize that even when the police refuse to arrest or seek charges against a person, a civilian may request that charges be issued.  The person seeking the charges goes to court, requests charges be issued and signs an affidavit with enough facts about what happened for the clerk magistrate at the court to consider issuing the charges.  The Court would then schedule the matter for a clerk magistrate’s hearing to determine whether probable cause exists to issue the charges.  In all cases involving a civilian as the person seeking the criminal charges, a hearing before a clerk magistrate will be held to decide whether the charges can be issued.

Hearing Before a Clerk Magistrate

One of the jobs of a clerk magistrate is to determine whether misdemeanor charges should be issued and proceed before the judge.  The basic function of the clerk magistrate is to determine whether there is enough evidence to establish probable cause that the crimes occurred.  This is a very low and thus easy standard of proof to overcome.  Some people define probable cause as whether based on the evidence “it is more probable than not” that you committed the crime.  I personally like to think of it in mathematical percentages.  The person or agency bringing the charges generally needs to prove that there is a 25% – 30% chance that you committed the crime.  As a result, it is not very hard to have charges brought.  Generally speaking, there are 3 possible outcomes of a clerk magistrate’s hearing:

  1. Probable cause is found and the charges are issued (i.e., you go see the judge).
  2. No probable cause is found and the charges are never issued (i.e. you win, go home with no record and no punishment).
  3. Probable cause is found, but the clerk uses his or her discretion and does not issue the charges.

This last possible outcome requires a little more explanation.  The clerk magistrates have a great amount of discretion.  For certain cases they use that discretion and decide that based on the interests of justice that charges should not issue.  Usually, in a case like this it is more about what type of person is before them than what they may have done. In such cases, we often describe for the clerk:

  • They are a good person.
  • They made a mistake that is not likely to be repeated.
  • It’s a first offense.
  • It’s a minor offense.
  • The impact that a criminal charge and/or conviction may have on the individual is significant (i.e., loss of job, loss of housing, expulsion from school, etc.).

In our experience, many times when a clerk magistrate is considering not issuing charges for these reasons, they may fashion their own remedy.  It is not uncommon for the clerk to keep the matter open for 6 months to 1 year and have the person do certain things, such as take a safe driving class or anger management class.  If the person completes the remedy asked of them and stays out of trouble, then the charges never issue.  If they do not, then the clerk can and will issue the charges.

I cannot stress enough that the clerk magistrate’s hearing is a very important hearing.  If you are successful at this stage, the case will end, you will have no punishment, and the case will never appear anywhere on your record.  It is also much less time consuming and less expensive to defend a case at this stage vs. going through the rest of the process.

Arraignment

The arraignment is just a fancy way of saying your first appearance in court.  When you first get to court on the day of your arraignment you are required to check in with the probation department.  A probation officer will ask you some basic identifying questions so that they can retrieve your court record. They will also ask about your finances, including your job, salary, do you own property, have kids, receive public assistance, etc.  They do this to determine whether you may qualify financially to have court appointed counsel.  If you have already hired a lawyer, just let the probation officer know this and they will usually skip those questions.  After completing this you should be instructed to go to a particular courtroom and wait for your case to be called.

Can Anything Be Done Prior to Arraignment?

The short answer to this question is sometimes. For some minor offenses, such as disorderly conduct, or certain minor driving offenses, your attorney may be able to negotiate with the prosecutor to have the charges dismissed on the payment of monies, commonly referred to as “court costs” or your agreement to do something else, like a program or community service.

In addition, for any offense in the juvenile court, your attorney may be able to get these charges dismissed prior to arraignment, by filing and arguing a pre-arraignment motion to dismiss the charges, also known as a Humberto H. motion (named for the case from which it comes).   This can occur prior to arraignment when (1) the police report provided in support of the complaint does not set forth sufficient information to establish probable cause for the offense; and (2) the judge determines that dismissal prior to arraignment is in the interests of justice.  Unfortunately, this type of motion cannot be brought in the adult court.

The benefit to having your charges dismissed prior to arraignment is that the charge will never appear on your criminal record.

You Go Before the Judge to be Arraigned

When your case is called, the court will formally read the charges.  A plea of not guilty will then automatically be entered on your behalf.  You don’t have to say anything.  The judge will usually then ask the prosecutor if they have any requests concerning your release.  The prosecutor can ask the court to do different things at this stage.  Some of these things may include:

  • Cash bail (money deposited with the court until the case is over)
  • Stay away from a certain person or place
  • Don’t consume drugs or alcohol and submit to testing to ensure compliance
  • Wear a GPS monitoring bracelet
  • Hold the person without bail for a period of time because they pose a danger to a person or the community

Ultimately, what is ordered to be done is up to the judge and not the prosecutor.  Your criminal defense lawyer will have the opportunity to argue on your behalf as to what is appropriate under the circumstances.  The judge is required to impose the least restrictive conditions that will reasonably assure that the public is safe and that you will return to court.  The judge should generally consider things such as:

  • Nature of the current crime (violent, non-violent, etc.)
  • What the likely punishment may be if you are convicted
  • Your prior criminal record
  • Whether in the past you have ever defaulted (i.e., not showed up to court as required)
  • Your mental health history, if any
  • Your ties to the community (i.e., how long you lived there, have a family, job, etc.)

Most people who have a minimal or no prior criminal record and who have consistently come to court as required (i.e., no defaults), will usually be released without any bail or conditions to follow.  However, almost everyone is given what they call a “bail warning.”  This means that the Court will advise them that if they are arrested or other charges are brought against them while this case is pending before the court, that they could be held in jail without bail for a period of up to 90 days.  So, it is very important to stay out of trouble while your case is pending.  After your arraignment, you will be required to come back for all court appearances.  The next time you will come to court is for a pre-trial hearing.  That hearing will usually be about 30-45 days out depending on your lawyer’s and the court’s schedules.

Pre-Trial Hearing

This name of this hearing is a bit of a misnomer.  Many people hear “pre-trial hearing” and think that the next court date will be the trial.  This is not generally the case.  At the pre-trial hearing your lawyer and the prosecutor will discuss what the prosecutor has for evidence (i.e., witnesses, photos, emails, DNA, forensic testing, etc.).  They will also discuss any additional information that your criminal defense attorney needs in order to defend your case.  This is generally referred to as “discovery.”  Your defense attorney and the prosecutor will fill out required paperwork, referred to as “Pre-Trial Conference Report.” Your lawyer or the prosecutor may ask the judge to make orders that the other exchange certain information within a particular time period.

Compliance & Election Hearing

Theoretically, this is the date by which the discovery (documents and things) agreed or ordered at the Pre-Trial hearing would be due.  That is the “Compliance” part.  In reality, most cases require at least two to three of these court appearances (sometimes more depending on the complexity of the case) to get all of the required discovery information.  Once discovery is complete (i.e., your lawyer has what they need to defend you), you then “elect” the type of trial you want.  The “Election” portion refers to your decision to have a bench trial (trial where the judge decides guilt or innocence) or a jury trial (where jury must decide guilt or innocence by a unanimous verdict).

Motion Hearings

Motions are just a fancy way of asking the Judge to order something in the case.  Different types of motions are filed at different stages of the case.  For example, your attorney might file a motion asking the court to order the prosecutor to produce certain information, which is known as a discovery motion.  Some motions can have the effect of ending the case, such as a Motion to Dismiss. This type of motion is generally filed, where (1) the facts as stated in the police report or application for the complaint are insufficient to establish probable cause to issue the charges; or (2) some other technical legal reason why the prosecution should be dismissed.  Other motions, limit what can be used by the prosecutor as evidence against you.  These are referred to as motions to suppress.  There are different types of motions to suppress.  Sometimes we ask the court to suppress certain pieces physical evidence (i.e., guns, drugs, etc.).  Other times we ask the court to suppress a statement or confession you may have made.  We also commonly may ask the court to suppress the witness’ identification of you as the suspect.  These are the more common types.  In almost all of these cases, we are asking the court to keep those things out of evidence (i.e. suppress them), because the police did something wrong.  Generally, what we mean by this is the police did not follow proper procedure in some way when they obtained the evidence (i.e., illegal search, not giving Miranda rights prior to questioning you, etc.).  If the judge agrees, then the police and prosecutor will not be able to use the unlawfully obtained evidence against you.  Depending on the type of case and other evidence the prosecutor has, success on this type of motion can have the effect of ending the case in your favor.

Plea or Negotiated Settlement

As noted above, a plea is one way to end your case.  You can tender a plea on your case at any time after you have been arraigned on the case.  A plea, also commonly referred to as a “plea bargain” or a “deal”, is where the person takes responsibility for one or more of the crimes with which they have been charged and they receive some type of punishment.  The punishment is also known as a “sentence.” That punishment will vary depending on the type of offense; the person’s previous criminal record, if any; the strengths or weaknesses of the evidence that the prosecutor intends to present; and the person’s character, including any good things you do, such as steady employment, supporting a family and charity work, etc.  Often times, a plea will result in some of the charges being reduced to lesser charges or outright dismissal of certain charges.  The punishment or sentence that occurs after a plea can range anywhere from a modest monetary fine to some type of probation, all the way to incarceration (i.e., house of correction or prison) for a certain period of time.  The criminal law or statute related to the charge brought against you will set out any minimum or maximum punishments that the judge could impose.

As the name suggests, your attorney and the prosecutor will negotiate the terms of the plea.  Sometimes the attorneys can agree on the sentence and sometimes they cannot.  However, the final decision as to what punishment you receive will be made by the judge.  The judge does not have to accept what either your attorney and/or the prosecutor suggest as the appropriate sentence.  Fortunately, in the District Court and Juvenile Court, the Judge cannot exceed the sentence recommended by your attorney without giving you the opportunity to withdraw the plea and then proceed to trial.

The Plea Process

Once you have made the decision to take a plea on the case and your attorney has negotiated with the prosecutor for the best possible deal, you will need to formalize it.  There is a form known as Tender of Plea form, which most attorneys refer to as a “green sheet” (it used to be green in color and still is in some, but not all courts).  The form has three columns.  One for the sentence you want, one for the sentence the prosecutor wants and one for what the judge ultimately orders.  The back of the form also has a section which describes the rights you give up by deciding to enter into the plea.  These rights include:

  • The right to a trial before a judge or jury
  • The right against self-incrimination
  • The right to confront and cross examine all witnesses against you
  • The right to present witnesses and evidence of your own
  • The right to testify on your own behalf
  • The right to appeal to a higher court any adverse rulings

This section of the form also has certain warnings if you are not a United States citizen.  It warns of the potential immigration consequences.  These include deportation, exclusion from the United States if you leave for any reason, or denial of naturalization.

Your attorney will review these rights and warnings with you and answer any questions you may have.  You will then be asked to sign the document.  The document is then submitted to the Court.  The judge will then also review your rights with you to ensure that you understand all that you are giving up by accepting a plea.  The judge will also ask other questions of you, such as, how far have you gone in school? Do you suffer from mental illness? Have you taken drugs or alcohol in the past 24 hours which interferes with your ability to understand? Has anyone forced, threatened or promised anything to you to get you to enter into the plea?  These questions are designed to ensure that you are making a knowing, intelligent and voluntary choice to enter into the plea.  After the judge is satisfied with your answers, the prosecutor is then asked to read a statement of the facts of the case.  This is usually just the prosecutor reading from the relevant portions of the police report.

The last part of this process is where the judge decides on your sentence.  Both your attorney and the district attorney will be given the opportunity to argue to the judge why they think you should get the particular sentence they have suggested before he or she decides.

Trial

In every case, regardless of the amount or type of evidence the police or prosecutor have, you are entitled to have your day in court, otherwise known as a trial.  As we have alluded above, there are two types of trials you can have, a bench trial or jury trial.  Which type you have is completely up to you.  We will discuss both and their differences below.

Regardless of which type of trial you choose, certain things do not change.  They are:

  • The prosecutor has the burden of proving that you committed the crime or crimes for which you are charged.
  • The prosecutor must present enough evidence to establish “beyond a reasonable doubt” that you committed the crime.
  • You do NOT have to prove anything.
  • You or your lawyer have the right to cross-examine (i.e., ask questions of) all witnesses called by the prosecutor.
  • You cannot be forced to take the witness stand or answer any questions (however you can if you choose to).
  • You have the right to present evidence and call any witnesses that you believe can aid in defending you against the charges.
  • The judge, acting like a referee or umpire, decides what evidence is legally allowed (or admissible) to be considered under our rules of evidence.

Differences between a Bench Trial and Jury Trial:

Bench Trial

The main difference between a bench trial and a jury trial is who decides whether you are guilty or not guilty.  In either trial, the judge will be present.  The judge will always decide which evidence can and cannot be used against you, based upon our rules of evidence.  However, in a bench trial the judge has an additional job.  He or she must also listen to all the legally admissible evidence and decide whether the prosecutor has put forth enough evidence to prove “beyond a reasonable doubt” that you committed each of the crimes for which you have been charged.  Although in reality the judge will actually hear all of the evidence (admissible and not admissible), the judge is required by law to make their decision only upon the admissible evidence.  For example, even if the judge knows that you confessed to the crime, if that confession was suppressed, the judge is not supposed to consider that confession in making their decision regarding your guilt or innocence.  The idea is that the judge has sufficient education, training and integrity to set aside that other inadmissible evidence and decide solely on the admissible evidence.

Jury Trial

In a jury trial, it is the job of the jury to decide whether you are guilty or not guilty.  In the District Court and most Juvenile Court matters, the jury is made up of six people.  In the Superior Court and serious juvenile matters, known as Youthful Offender cases, the jury is made up of 12 people.  Regardless of the size of the jury, they function in the same way.  Most people have at least heard of, if not participated in jury duty.  This is where random adults receive a notice to come to court on a particular day.  The jurors then participate in a process to select the jury.  You, your lawyer, the prosecutor and the judge also participate.  The goal is to select a jury who are impartial.  This means that they must not know personally any of the lawyers, parties, witness or anyone else associated with the case.  They cannot have a stake in the outcome of the case.  They cannot have any pre-conceived ideas or biases (i.e., race, sex, etc.).  They are expected to listen to the admissible evidence with an open mind and decide whether they believe the person is guilty or not guilty based solely on the evidence and the judge’s instructions on the underlying law.

Further, the jurors are required to all agree as to whether the person is guilty or not guilty.  This is known as a “unanimous verdict.”  Unlike, in civil trials or some other things in life, a certain percentage or majority of the jurors in agreement is not good enough.  They must all agree one way or the other (i.e., guilty or not guilty).

If you are found not guilty, there is no punishment, the case is over and you are free to go.  If you are found guilty, the judge will then decide what sentence you should receive (discussed in more detail below).

Unfortunately, in some cases, the jurors will never all agree to the same verdict.  This is called a “deadlocked” or “hung” jury.  If this occurs, then the trial must start all over again at a different time with a different jury.

Sentencing

Similar to when someone takes a plea or negotiated settlement, the judge must determine the sentence/punishment the person who has been found guilty after a trial will receive.  Just like in the context of a plea, the particular circumstances of each case matter.  The judge generally considers the type and severity of the offense; the person’s previous criminal record, if any; and the person’s character, including any good things you do, such as steady employment, supporting a family and charity work, etc. The criminal law or statute related to the charge brought against you will set out any minimum or maximum punishments that the judge could impose.  Just like in the plea process, your attorney and the prosecutor will argue to the judge for what they believe is the appropriate punishment under the circumstances.

Appeal

Without getting into all of the mechanics of the appeal process, I want to generally discuss what an appeal is and why you may seek an appeal of a court’s decision to a higher court, also known as the Appeals Court.  Generally speaking, an appeal is sought when one side believes that the Judge made some type of legal error.  The justices of the appeals court will then review what happened at the trial or hearing in your case and decide whether such an error was made.  The higher court reviews the transcripts of the trial or hearing you had and any written documents.  Your attorney submits your argument in written form known as a brief.  The Appeals Court does not conduct a new trial or hearing or call any witnesses.  However, in most cases, they will allow your attorney and the prosecutor to be heard by their panel of judges in what is known as oral argument for their position. If the Appeals Court finds that a legal error has been made, they will take action to correct it.  In most cases, this means a new trial or hearing on this issue back in the trial court.  However, there are some cases where they make a finding that the case against you should have been dismissed and can do so without having it re-heard in the trial court.

Appeals and the reasons you may seek an appeal are usually very technical.  For instance, you generally cannot appeal your conviction on a criminal case because you believe the jury just made the wrong decision.  However, if the judge while instructing the jury on the law, told them something wrong about the law, this may be grounds to lodge an appeal.  Another common example is where the judge ruled against you on a motion to suppress evidence or motion to dismiss your case (discussed above).

We’re here to answer your questions and help you throughout the process

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