4:00 Motion to dismiss the complaint
An accused may challenge the magistrate’s issuance of a complaint only by a motion to dismiss. An accused may not challenge the magistrate’s issuance of a complaint by requesting a judge to review or redetermine the magistrate’s decision or to remand the matter to the magistrate.
A motion to dismiss the complaint may be based on a claim that the evidence before the magistrate did not support a finding of probable cause.
A motion to dismiss the complaint may also be based on a claim that there was a defect in the procedure utilized by the magistrate. This may include a claim that the accused was denied his or her statutory right to a show cause hearing
Motions to dismiss a complaint must be timely filed prior to trial and must comply with the requirements of Mass. R. Crim. P. 13, including an affidavit on personal knowledge and a memorandum of law.
A judge may allow or deny a motion to dismiss the complaint but may not remand the complaint to the magistrate.
Commentary
As noted in Standard 3:22, when a magistrate has authorized a complaint after a show cause hearing, the accused may not request a redetermination of that decision by a judge.
A motion to dismiss the complaint after its issuance is “the appropriate and only way” to assert that there was insufficient evidence before the magistrate to constitute probable cause or to challenge an alleged “defect in the procedure before the clerk-magistrate (whether failure to permit testimony of a defense witness, interference with the proceeding by an unauthorized participant or other challenge).” It is also the remedy for “a violation of the integrity of the proceeding, see Commonwealth v. O'Dell, 392 Mass. 445 (1984) [where exculpatory evidence was withheld by the prosecution], or for any other challenge to the validity of the complaint.” Commonwealth v. DiBennadetto, 436 Mass. 310, 313, 764 N.E.2d 338, 341 (2002); Bradford v. Knights, 427 Mass. 748, 753, 695 N.E.2d 1068, 1072 (1998).
Since September 7, 2004, Mass. R. Crim. P. 3(g) requires that any criminal complaint be based on a magistrate’s or judge’s finding of probable cause and also that “the facts constituting the basis for the complaint . . . . be either reduced to writing or recorded.” Defendants may seek to dismiss the complaint if the record shows that the magistrate lacked probable cause to authorize the complaint or that the magistrate failed to comply with the rule’s directive to preserve an adequate record of the facts underlying the probable cause finding. See DiBennadetto, supra; Reporter’s Notes to Mass. R. Crim. P. 3(g) (noting that “the consequences, if any, of the failure of the record in a particular case to demonstrate probable cause is a matter that the rule does not address” but quoting DiBennadetto that “the defendant’s remedy is a motion to dismiss”).
As noted in Standard 3:12, a defendant may also seek dismissal if the magistrate authorized a misdemeanor complaint without affording the defendant an opportunity to be heard at a show cause hearing if the defendant was not arrested and none of the exceptions in G.L. c. 218, § 35A applied.
Motions to dismiss must be in writing, state “with particularity” the grounds relied on, be accompanied by an affidavit made on personal knowledge and a memorandum of law, and be timely filed within 21 days of the assignment of a trial date. Mass. R. Crim. P. 13(a) & (d)(2).
Challenges to the authorization of the complaint are waived unless timely raised in a pretrial motion to dismiss. Mass. R. Crim. P. 13(c)(1). See Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 229, 275 N.E.2d 33, 58 (1971), cert. denied sub nom. Farrell v. Massachusetts, 407 U.S. 910, and sub nom. Beneficial Fin. Co. v. Massachusetts, 407 U.S. 914 (1972) (attempted midtrial challenge to sufficiency of evidence before grand jury came too late). Nor is erroneous denial of a show cause hearing grounds for overturning a conviction after trial. Commonwealth v. Irick, 58 Mass. App. Ct. 129, 131-133, 788 N.E.2d 573, 575-576 (2003) (erroneous denial of pretrial motion to dismiss was harmless error where there was probable cause for complaint); Commonwealth v. Leger, 52 Mass. App. Ct. 232, 241-242, 752 N.E.2d 799, 807 (2001) (lack of show cause hearing cannot be raised for first time on appeal).
4:01 Hearing on a motion to dismiss
If a motion to dismiss alleges that the magistrate lacked probable cause to authorize the complaint, the judge’s review is limited to determining whether there was probable cause for each of the essential elements and the identification of the defendant as the perpetrator. The credibility of the witnesses and the weight of the evidence are matters beyond the scope of the judge’s review.
A judge may hold an evidentiary hearing if a motion to dismiss alleges a defect in the procedure utilized by the magistrate (such as a failure to afford the defendant a show cause hearing), or serious misconduct by the complainant undermining the fairness of the process.
As the moving party, the defendant has the burden of proof on a motion to dismiss.
Commentary
The burden of proof on a motion to dismiss the complaint is on the defendant, as the moving party. See Commonwealth v. Benjamin, 358 Mass. 672, 676 n.5, 266 N.E.2d 662, 665 n.5 (1971) (motion to dismiss indictment); Commonwealth v. Pond, 24 Mass. App. Ct. 546, 551, 510 N.E.2d 783, 786 (1987) (same).
Motion to dismiss for want of probable cause
The DiBennadetto decision did not specifically discuss the standard to be applied by the reviewing judge, but cited Commonwealth v. McCarthy, 385 Mass. 160, 430 N.E.2d 1195 (1982), and Commonwealth v. O’Dell, 392 Mass. 445, 466 N.E.2d 828 (1984). These were landmark cases discussing the scope of a judge’s review of grand jury decisions. They reaffirmed the traditional rule that “a court will not inquire into the competency or sufficiency of the evidence before the grand jury” except to decide a claim that the evidence did not rise to the level of probable cause for an arrest (sufficient evidence to establish probable cause that a crime was committed and the identity of the accused as the perpetrator), or a claim that evidence was partially withheld in a way that misrepresented its significance. See also Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774, 776 (1991); Commonwealth v. Freeman, 407 Mass. 279, 282, 552 N.E.2d 553, 555 (1990). Normally this will not involve passing judgment on the veracity of the witnesses. Commonwealth v. Champagne, 399 Mass. 80, 83 n.4, 503 N.E.2d 7, 10 n.4 (1987). This standard of probable cause to arrest “is considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding . . . . to overcome a motion for a required finding of not guilty at a trial.” Commonwealth v. O’Dell, 392 Mass. at 450-451, 466 N.E.2d at 830- 832.
Motion to dismiss for failure to afford a show cause hearing
The defendant must first present evidence by way of affidavit that the complaint was issued without an opportunity for a show cause hearing as required by G.L. c. 218, § 35A, that none of the statutory exceptions to that requirement applied, and that the defendant was not under arrest for that offense. If the motion is allowed, the complaint is to be dismissed without prejudice to its being refiled and a show cause hearing scheduled. DiBennadetto, supra; Commonwealth v. Lyons, 397 Mass. 644, 648, 492 N.E.2d 1142, 1145 (1986); Commonwealth v. Irick, 58 Mass. App. Ct. 129, 132-133, 788 N.E.2d 573, 576 (2003); Commonwealth v. Tripolone, 44 Mass. App. Ct. 23, 28 n.10, 686 N.E.2d 1325, 1329 n.10 (1997). See also Standard 3:12.
Motion to dismiss for failure to allow defendant to present evidence
While the magistrate may limit the number of witnesses to prevent cumulative or irrelevant testimony, and the accused has no right to cross-examine witnesses at a show cause hearing, “[u]nreasonable restrictions on the opportunity to present witnesses can be tantamount to the denial of the right of a hearing.” DiBennadetto, 436 Mass. at 314-315, 764 N.E.2d at 342. Where there was sufficient evidence to support the magistrate’s finding of probable cause, exclusion of evidence that merely contradicts the complainant’s testimony would not warrant dismissal unless the excluded evidence would have undercut that testimony. See Commonwealth v. Irick, 58 Mass. App. Ct. 129, 132, 788 N.E.2d 573, 576 (2003).
Motion to dismiss for violation of the integrity of the show cause proceeding
The DiBennadetto decision held that “a motion to dismiss will lie for a . . . violation of the integrity of the proceeding.” DiBennadetto, 436 Mass. at 314-315, 764 N.E.2d at 342. The Court made reference to Commonwealth v. O'Dell, 392 Mass. 445, 447, 466 N.E.2d 828, 829 (1984), in which significant exculpatory evidence was withheld from a grand jury and dismissal was held to be proper if withholding the exculpatory evidence “seriously tainted the presentation.” Where an indictment is claimed to rest on false evidence being presented to the grand jury, the defendant has “a heavy burden” of proving that “(1) the evidence was given to the grand jury knowingly or with reckless disregard for the truth and for the purpose of obtaining an indictment, and (2) that the evidence probably influenced the grand jury’s determination to indict the defendant. Inaccurate testimony given in good faith does not by itself require dismissal.” Commonwealth v. Kelcourse, 404 Mass. 466, 468, 535 N.E.2d 1272, 1273 (1989) (citation omitted); Commonwealth v. Mayfield, 398 Mass. 615, 619-622, 500 N.E.2d 774, 777-779 (1986). Although these cases involved testimony by a police officer or prosecutor, similar conduct by a private complainant (particularly if it meets the elements of the tort of malicious prosecution) might also warrant dismissal.
4:02 Effect of allowance of a motion to dismiss; Reapplication
Dismissal must ordinarily be without prejudice. After a dismissal without prejudice, the prosecution may either file a motion to reconsider, file a new application for complaint in the same court, appeal from the dismissal of the original complaint, or seek an indictment from the grand jury.
Commentary
If the Commonwealth disagrees with the judge’s dismissal of a complaint without prejudice, it may either file a motion to reconsider, seek a new complaint in the same court, file a notice of appeal, or seek an indictment. Commonwealth v. Heiser, 56 Mass. App. Ct. 917, 778 N.E.2d 973 (2002). The judge cannot compel the Commonwealth to proceed by indictment except after conducting a probable cause hearing and making an unambiguous declination of jurisdiction. Id., 56 Mass. App. Ct. at 918, 778 N.E.2d at 975. The judge has inherent authority, on a motion for reconsideration, to reinstate a complaint that was dismissed without prejudice. Commonwealth v. Aldrich, 21 Mass. App. Ct. 221, 226-228, 486 N.E.2d 732, 736-737 (1985).
If the complaint was properly dismissed for lack of probable cause, a new application must be supported by additional evidence not presented at the original hearing.
Dismissal with prejudice is permissible only where there has been “willfully deceptive or otherwise egregious” misconduct by the prosecution, such as intentional withholding of exculpatory evidence, or “at least a serious threat of prejudice” to the defendant. Commonwealth v. Ortiz, 425 Mass. 1011, 681 N.E.2d 272 (1997); Commonwealth v. Connelly, 418 Mass. 37, 38, 634 N.E.2d 103, 104; Commonwealth v. O’Dell, 392 Mass. 445, 450-452, 466 N.E.2d 828, 829 (1982). If the complaint is dismissed with prejudice, the Commonwealth may not refile the complaint, but must instead either seek reconsideration of or appeal the dismissal. Commonwealth v. Monahan, 414 Mass. 1001, 607 N.E.2d 407 (1993).