Guideline 8:05
The Commonwealth’s right to a delayed arraignment for c. 209A violations (“three hour rule”) does not apply to a defendant charged strictly with violating a c. 258E order. It may, however, apply in situations where a defendant is charged with violating a c. 209A 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 or any other the qualifying crimes involving abuse as defined by c. 209A, § 1. In such situations, only the Commonwealth can move for arraignment within three hours of the complaint being signed by the magistrate.
The issuance of a separate no-contact order as a condition of pretrial release is required in certain circumstances by G.L. c. 258E, § 8, last par. “When any person charged with or arrested for a crime involving harassment under this chapter is released from custody,” the court must issue a no-contact or stay away order if the named victim requests it. G.L. c. 258E, § 8, last par.
In all criminal cases, the court shall provide bail warnings to the defendant, informing the defendant that, as an explicit condition of release, should the defendant be charged with any crime during the period of release, or violate any other condition of release, the defendant’s bail may be revoked, and the defendant can be held without bail until trial. The clerk must record on the court docket that this bail warning was given.
If the defendant is released from custody by order of the court, reasonable attempts should be made to notify the named victim of the defendant’s release. See G.L. c. 258E, § 8, last par; Guideline 8:08 Bail Procedures: Notifying the Named Victim.
Commentary
The factors to be considered when determining whether to set a cash bail are:
- the nature and circumstances of the offense charged,
- the potential penalty the person faces,
- the person’s family ties,
- financial resources,
- employment record
- history of mental illness
- reputation
- length of residence in the community,
- record of convictions, if any,
- any illegal drug distribution or present drug dependency,
- any flight to avoid prosecution
- fraudulent use of an alias or false identification,
- any failure to appear at any court proceeding to answer to an offense,
- whether the person is on bail pending adjudication of a prior charge,
- whether the acts alleged involve domestic abuse, or violation of an abuse prevention order,
- whether the person has any history of abuse prevention orders issued against him or her,
- whether the person is on probation, parole, or other release pending completion of sentence for any conviction, and
- whether the person is on release pending sentence or appeal for any conviction.
The judge’s authority to set conditions does not require a motion by the Commonwealth. G.L. c. 276, §§ 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.
In setting bail in court, the judge should examine the defendant’s Court Activity Record Information (CARI) and, in particular, should review information about prior abuse or harassment orders issued against the defendant and prior findings of dangerousness under § 58A and of domestic abuse under § 56A. This information is contained in the “linked groups” at the top of the CARI report.
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. 258E, § 8. It is appropriate for the judge to delegate this duty to the prosecutor. See Guideline 8:08 Bail Procedures: Notifying the Named Victim.
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| Last updated: | October 20, 2025 |
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