Guideline 8:05
Where a defendant is charged with violating an abuse prevention order, assault and battery on a household member in violation of G.L. c. 265, § 13M, or strangulation in violation of G.L. c. 265, § 15D, only the Commonwealth can move for arraignment within three hours of the complaint being signed by the magistrate.
General Laws c. 276, § 56A requires that the judge, at arraignment of any person arrested and charged with a crime against the person or property of another, inquire of the prosecutor whether domestic abuse is alleged to have occurred immediately prior to, or in conjunction with, the crime for which the person was arrested and charged. If so, the prosecutor is required to file a preliminary written statement to that effect and the judge, upon finding that there is an adequate factual basis for the allegation of domestic abuse made by the prosecutor, is to make a written ruling that domestic abuse is alleged.1
At arraignment, a judge can set a cash bail if necessary to ensure the appearance of the defendant, and the judge must also consider setting conditions of release necessary to “insure the safety of the person allegedly suffering the physical abuse or threat thereof, and [to] prevent its recurrence Such terms and conditions shall include reasonable restrictions on the travel, association or place of abode of the defendant as will prevent such person from contact with the person abused.” G.L. c. 276, § 42A. Additionally, conditions of release “to ensure the appearance of the person before the court and the safety of the named victim, any other individual, or the community” may be imposed pursuant to §§ 42A, 57, and/or 58. Finally, G.L. c. 276, § 58 continues to authorize, in all cases regardless of the crime charged, the imposition of restrictions on personal associations or conduct including, but not limited to, avoiding all contact with a named victim and any potential witnesses who may testify. A condition of release that must always be imposed in every case is that the person commit no new offenses, and the defendant is to be told that failure to comply with any of the conditions of release could result in bail revocation and detention without bail. G.L. c. 276, § 58.
The issuance of a separate no contact order as a condition of pre-trial release is also authorized by G.L. c. 209A, § 6, last par. “When any person charged with or arrested for a crime involving abuse . . . is released from custody,” whether on personal recognizance or bail pursuant to G.L. c. 276, § 58 or on conditions after a detention or dangerousness hearing pursuant to G.L. c. 276, § 58A, the court must issue a no contact order if the named victim requests it. G.L. c. 209A, § 6, last par.
The law mandates that, when making a determination about bail or conditions of release, the judge shall have, “to the extent practicable,” immediate access to all criminal offender record information (CORI), board of probation records, and pending and prior police incident reports related to the defendant. G.L. c. 276, §§ 42A, 57, and 58. This includes access to sealed records, out of state records, scanned abuse prevention order affidavits, § 58A findings, and information contained in the Statewide Registry of Civil Restraining Orders.
If the defendant is released from custody by order of the court, reasonable attempts must be made to notify the named victim of the defendant’s release. See Guideline 8:08: Bail Procedure: Notifying the Named Victim. Additionally, the person admitting the defendant to bail must provide the defendant with informational resources regarding domestic violence, including a list of nearby intimate partner abuse education (IPAE) programs.
Commentary
Since only the Commonwealth can move for arraignment within three hours of the complaint being signed by the magistrate for these specific offenses, clerk magistrates issuing complaints in such cases should note the time that the complaint is signed so that the three-hour window can be calculated.
Regarding the requirement to make a finding regarding an allegation of abuse pursuant to G.L. c. 276, § 56A, see Commonwealth v. Dossantos, 472 Mass. 74, 80-81 (2015). The 56A determination is required in any case involving an allegation of domestic abuse whether or not the relationship between the parties is an element of the crime. For example, a 56A determination should be made where the facts in support of a complaint for malicious destruction of property indicate that the named victim and the defendant have a child in common or reside in the same household. The Trial Court has promulgated an Allegation of Domestic Abuse and Written Finding form, which can be found on Courtyard, the Trial Court’s Intranet. This finding will be used only for entry into the Statewide Registry of Civil Restraining Orders; it is not admissible in the case or available to the public. The law also requires that this finding be removed by the court from the Statewide Registry of Civil Restraining Orders upon an acquittal, no bill, or finding of no probable cause. A dismissal for any other reason (e.g., dismissal for want of prosecution, assertion of a privilege, etc.) does not result in the removal of the finding. G.L. c. 276, § 56A. Note that the finding relates to the entire case, which means that if there is another qualifying charge that does not qualify for removal, then the finding cannot be removed. An Order For Removal Of Allegation Of Domestic Abuse From Domestic Violence Record Keeping System form is also available on Courtyard, the Trial Court’s Intranet.
The factors to be considered when determining whether to set a cash bail are: (1) the nature and circumstances of the offense charged; (2) the potential penalty the person faces; (3) the person’s family ties; (4) financial resources; (5) employment record; (6) history of mental illness; (7) reputation; (8) length of residence in the community; (9) record of convictions, if any; (10) any illegal drug distribution or present drug dependency; (11) any flight to avoid prosecution; (12) fraudulent use of an alias or false identification; (13) any failure to appear at any court proceeding to answer to an offense; (14) whether the person is on bail pending adjudication of a prior charge; (15) whether the acts alleged involve domestic abuse, or violation of an abuse prevention order; (16) whether the person has any history of abuse prevention orders issued against them; (17) whether the person is on probation, parole, or other release pending completion of sentence for any conviction; and, (18) whether the person is on release pending sentence or appeal for any conviction. See G.L. c. 276, §§ 42A, 57, and 58.
The judge’s authority to set conditions does not require a motion by the Commonwealth. G.L. c. 276, §§ 42A, 57, and 58. It is the court’s responsibility to determine whether the defendant is in default or already on recognizance on a previous charge and to review all available information relevant to the issue of the defendant’s likelihood of appearing for trial and conditions of release necessary to protect the named victim, irrespective of the prosecution’s recommendations on the question of bail.
The Court Activity Records Information (CARI) system now identifies any adult case containing § 56A findings and any case where § 58A findings have been made. The CARI system also identifies abuse prevention orders issued against the defendant. This information is found in the Domestic Violence Link Group at the top of the CARI report. The court should also review the court case file on any c. 209A order that the defendant is accused of violating as well as any other c. 209A orders concerning the defendant that can be accessed by the court.
- Dangerousness (D58A) Link Group. The Link Group contains criminal dockets after August 8, 2014 in which any findings and order pursuant to G.L. c. 276, § 58A were made. A case appears in the D58A Link Group, whether or not detention was ordered. Therefore, if a docket number appears in the D58A Link Group, the reader is informed that the Commonwealth filed a motion for detention pursuant to G.L. c. 276, § 58A, and the judge made findings pursuant to the motion under G.L. c. 276, § 58A. If a docket number appears in the D58A Link Group, the G.L. c. 276, § 58A findings and order should be available as a scanned document in MassCourts. These scanned documents will be accessed by probation staff, who have view-only access to this MassCourts information, regardless of the court department and division where the G.L. c. 276, § 58A findings were made. When a case appears in the D58A Link Group, probation has been directed to obtain the scanned findings and order and provide a printed copy to the judge and parties in the courtroom. Dangerousness findings issued prior to August 8, 2014 will not be captured in the D58A Link Group.
- Domestic Violence (DVRS) Link Group. The DVRS Link Group contains criminal dockets after August 8, 2014 in which an allegation of domestic abuse pursuant to G.L. c. 276, § 56A was filed by the prosecution. This Link Group also contains docket numbers of abuse prevention order petitions filed after August 8, 2014, in which an affidavit was scanned, whether or not the order was ultimately issued. If the abuse prevention order issued, and the affidavit was properly scanned, the probation department will have access to the affidavit in MassCourts and has been directed to provide a printed version to the judge and parties in the courtroom. Abuse prevention orders will also appear on the CARI report, but please note that, with the exception of Probate and Family Court, abuse prevention order affidavits were not scanned prior to August 8, 2014.
- Docket Numbers that Appear in Both Link Groups. When a docket number appears in both Link Groups, this signifies that the criminal case contained both an allegation of domestic abuse pursuant to G.L. c. 276, § 56A, and a dangerousness detention finding was made pursuant to G.L. c. 276, § 58A.
If the defendant is admitted to bail, reasonable efforts must be made to inform the named victim of such release prior to or at the time of release. G.L. 209A, § 6. This is to be done either by the person admitting the defendant to bail, G.L. c. 209A, § 6, or by the prosecutor, G.L. c. 276, §§ 42A, 57, and 58. It is appropriate for the judge to delegate this duty to the prosecutor. See Guideline 8:08 Bail Procedures: Notifying the Named Victim.
A defendant, who has been charged with violation of an abuse prevention order or a criminal act constituting domestic abuse and has been admitted to bail, must be provided with informational resources regarding domestic violence, including a list of nearby intimate partner abuse education (IPAE) programs. G.L. c. 276, §§ 42A, 57, and 58. A pamphlet entitled “Alternatives to Abuse” is available for use by the Trial Court to provide to defendants, and includes a statewide and regional listing for IPAE programs, as well as offices of the Department of Transitional Assistance (DTA), career centers, and legal assistance support. This flyer is available on the Trial Court’s public website on Mass.gov and can be downloaded and printed as needed.
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| Last updated: | October 20, 2025 |
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