2:00 Initiating the complaint procedure for persons arrested without a warrant
Where an arrest without a warrant has been made, the police complainant must file an application for complaint with the clerk’s office and attach a police report or other statement of facts which provides the basis for the charge(s).
The statement of facts must include all of the facts necessary to support a finding of probable cause for each element of the offense(s) being sought and identify the accused as the perpetrator.
The application should include sufficient personal identifying information so that the accused may be accurately identified in the MassCourts computer system and any warrant or other process subsequently issued in the case. It should also include all the information about the offense that is necessary to complete the complaint form, such as the date of offense, the victim’s name, a description of any property stolen or damaged, or the type of weapon or controlled substance.
For a motor vehicle violation, the application for complaint must be accompanied by the court copies of the motor vehicle citation.
Commentary
Police must bring an arrested person who has not been released on bail “forthwith” before the court “if then in session, and if not, at its next session.” G.L. c. 276, § 58; Mass. R. Crim. P. 7(a)(1).
An application for complaint should be completed on the standard “Application for Complaint” (DC-CR-2) form. Court personnel must insure that the complainant has supplied adequate and complete identifying information about the accused (i.e., full name, date of birth, address, etc.) unless a waiver is given for good reason. See also G.L. c. 276, § 23A (unless waived by clerk-magistrate, any individual or law enforcement agency requesting court to issue warrant must provide person’s name, last known address, date of birth, gender, race, height, weight, hair and eye color, any known aliases, and other information required for warrant to be accepted by the Commonwealth’s computerized Criminal Justice Information System). Such information is equally important in correctly identifying the accused when a complaint is initially authorized and is therefore required in the application for complaint.
Massachusetts R. Crim. P. 3(g) requires that the complainant “convey to the court the facts constituting the basis for the complaint and which “establish[] probable cause to believe that the person against whom the complaint is sought committed an offense.” Rule 3(g) requires that these facts “shall be either reduced to writing or recorded.”
District/Mun. Cts. R. Crim. P. 2(a) and 3(a) require that in arrest cases the police submit with the application “a written statement describing the facts constituting the basis for the arrest” to be given to the defendant at arraignment.
In a motor vehicle case, the police must accompany the application for complaint with the court copies of the motor vehicle citation. G.L. c. 90C, § 4. While § 4 would permit “one copy of the [citation to] serve as the application for complaint,” the standard application form is also required, since the citation alone does not include all the personal identifying information that is required by G.L. c. 276, § 23A or the written statement of facts establishing probable cause that is required by Mass. R. Crim. P. 3(g) and Dist./Mun. Cts. R. Crim. P. 2(a).
While the name of an alleged victim is generally not an essential element of a complaint, the name of the victim (and sometimes witnesses) is usually included in an application for complaint. (An exception is sometimes encountered for sexual offenses, where G.L. c. 265, § 24C restricts public access to the victim’s name.) Where multiple counts are sought of an identical offense with multiple victims, their names are necessary in order to distinguish the counts for double jeopardy purposes. It is usually appropriate for police to withhold or redact other personal information about victims and witnesses, such as addresses and telephone numbers, from such reports before they are filed with the clerk’s office to protect the privacy interests of the parties. In addition, G.L. c. 258B, § 3(h) specifically authorizes a judge, on request, to impound the address, phone number, or place of employment or school, of a victim, a victim’s family member, or a witness. See Standard 5:00 et seq. about issues of privacy versus public access.
The officer seeking the complaint need not be the arresting officer. See Commentary to Standard 1:01.
If an application for complaint is filed without an accompanying statement of facts, see Standard 2:03.
If, after a warrantless arrest, a complaint is sought for a misdemeanor offense other than the offenses for which the accused was under arrest, he or she is generally entitled to a show cause hearing for that offense. See Standard 3:10.
2:01 Processing the application for complaint
The application for complaint should be processed in an efficient and orderly manner, with regard for the convenience of the parties, the needs of the public, and the public cost incurred when police officers are kept from their other duties.
Applications for complaint should be reviewed by a magistrate or by designated personnel in the clerk’s office, and processed early enough so that this does not delay the start of the criminal session at 9:00 a.m.
Commentary
Some applications for complaint relate to accused persons who are in custody. Their guilt or innocence has not yet been adjudicated and they must be promptly released if there is insufficient evidence to establish probable cause.
In courts where a staff member reviews applications for complaint with police officers before they are presented to a magistrate to determine probable cause, when possible this screening function should be assigned to designated personnel who are familiar with the elements of commonly-charged offenses. The clerk-magistrate may reserve this function to a magistrate.
Staff members should be sensitive to the necessary constitutional separation between the functions of the police and the court. Although police officers, prosecutors and defense counsel should be treated as professional colleagues, they should not be afforded special privileges in or about the clerk’s office. Such privileges detract from the separate and impartial nature of the court as an independent branch of government.
District Court Special Rules 200 and 201 require that every clerk’s office be open for business at 8:30 a.m. and that court sessions begin at 9:00 a.m. The processing of applications for complaints should begin immediately upon opening for business. In courts where it proves necessary, the clerk-magistrate should assign sufficient personnel to begin work before 8:30 a.m. It is not necessary that all complaints for overnight arrests be completed before 9 a.m. if the court has other scheduled matters, but the processing of applications for complaints should not delay the start of the court session. The court should require the cooperation of police departments in meeting the requirements of this standard.
2:02 Determining probable cause
If the application for complaint is in proper order, the officer seeking the complaint should be directed promptly to a magistrate for a probable cause determination.
No criminal complaint may be authorized unless a magistrate determines that probable cause exists for each offense included in that complaint.
If there has already been a Jenkins probable cause determination to support continued detention and there is a record of the facts supporting that determination, that is sufficient to authorize a complaint for any offenses covered by that determination.
In determining probable cause, the magistrate may rely on evidence obtained subsequent to the arrest.
Commentary
Because the accused has been arrested, there is no need for a magistrate to make a decision whether to issue process (a summons or a warrant). But a magistrate must determine if probable cause exists to authorize a complaint for each of the offenses being charged. See Mass. R. Crim. P. 3(g).
If probable cause for one or more offenses was found in a prior Jenkins hearing, that finding is sufficient to authorize a criminal complaint for those offenses, as long as the underlying facts have been reduced to writing or recorded as Rule 3(g) requires. Anyone arrested without a warrant is entitled to an ex parte Jenkins hearing before being held in custody for more than 24 hours when court is not in session. If the magistrate finds that there is probable cause for continued detention, the arrestee may be held for the next court session. If a finding of no probable cause is made, the arrestee must be released. See Jenkins v. Chief Justice of the District Court Dep’t, 416 Mass. 221, 619 N.E.2d 324 (1993); Mass. R. Crim. P. 3.1; Trial Court Rule XI. If a Jenkins determination covers some but not all the charges now being sought, the magistrate must make a supplemental finding of probable cause with regard to the additional offenses.
The same magistrate may not make a Jenkins determination and also set bail for a fee in the same case because it poses a potential financial conflict of interest. Trial Court Rule XI. However, the same magistrate who has previously set bail may also make a probable cause determination under Mass. R. Crim. P. 3(g) at a later time, since such a determination is required whether or not the arrestee has been admitted to bail.
The magistrate’s responsibility is to determine whether there is currently probable cause to authorize a complaint, not whether there was probable cause at the time of the arrest. Therefore, in determining probable cause the magistrate may consider information obtained subsequent to the arrest. This may be either inculpatory (strengthening the case against the accused) or exculpatory (e.g., showing that an earlier identification was mistaken).
Prior to the September 7, 2004 effective date of Rule 3(g), there was no requirement that a magistrate make a finding of probable cause in warrantless-arrest cases. See District Atty. of Norfolk County v. Quincy Div. of Dist. Court Dep’t, 444 Mass. 176, 827 N.E.2d 172 (2005); Commonwealth v. Arias, 55 Mass. App. Ct. 782, 778 N.E.2d 523 (2002); Commonwealth v. Rumkin, 55 Mass. App. Ct. 635, 773 N.E.2d 988 (2002).
For a discussion of the probable cause standard, see Standard 3:18.
2:03 Authorizing the complaint and determining the proper charges
Unless the application for complaint has already been reviewed by another staff member to insure that it contains the necessary identifying information about the accused, the magistrate should do so.
The magistrate must then review the police report or other statement(s) filed with the application to determine whether there is sufficient evidence to find probable cause for each offense charged.
If there is no statement of facts or if the statement does not contain sufficient evidence to find probable cause, the magistrate may permit the officer seeking the complaint to file the missing statement or to supplement or clarify any statement that was filed. The additional facts must either be reduced to writing by the officer, or the magistrate must electronically record or make written notes of them.
If the magistrate determines that there is probable cause for all or some of the offense(s) listed in the application, the magistrate should note this on the application and that he or she is authorizing a complaint. There must be a written or recorded record of the facts supporting the finding of probable cause for each offense.
If the magistrate finds no probable cause for an offense for which the accused was arrested, but does find probable cause for a lesser or different offense, the magistrate should so inform the officer and determine if the officer wishes to proceed on the lesser or different offense. If so, the magistrate may then authorize a complaint. If the officer declines to proceed on the lesser or different offense, the magistrate should note this on the application and record a finding of no probable cause on the original charge.
If the magistrate determines that the facts would also support charging the accused with a greater or different offense, the magistrate may inquire if the officer wishes to do so. If the officer declines to proceed on the greater or different offense, the magistrate should record the finding of probable cause and authorize a complaint for the original charge.
Commentary
The magistrate has two responsibilities under rule 3(g): to determine if probable cause exists for each criminal charge sought in the application for complaint, and to preserve a record of the facts supporting the probable cause finding either in writing or recorded. If either function is omitted, the complaint could later be dismissed.
A written record of the facts supporting the probable cause finding must be filed with the application for complaint. This will normally consist of the police report or statement(s). While a Jenkins determination may be based on an unrecorded oral presentation of facts made under oath, that is insufficient under Mass. R. Crim. P. 3(g) unless the facts supporting the finding of probable cause are subsequently “either reduced to writing or recorded.” In doing so, the magistrate is not required to articulate findings of fact assessing the evidence, but only to make a record of “the facts constituting the basis for the complaint” (i.e., sufficient evidence to support the general finding that there is probable cause for each offense charged).
The magistrate should check the appropriate boxes on the application to indicate the charges for which he or she has found probable cause. The magistrate should also check the appropriate boxes to indicate whether the facts are set forth in written statements or recorded or both. Any written statements, including notes made by the magistrate of any oral statements that were presented, should be attached to the application for complaint, and later filed with the case papers if the magistrate authorizes the complaint. If testimony was recorded, the magistrate should note the start and end index numbers of the electronic record.
If a warrantless arrest is made during business hours, it sometimes happens that the application for complaint is submitted to the court before the police report is available. The magistrate may wait for a reasonable time for the report to be submitted or ask the officer to prepare a brief written report in place of the formal police report. Alternately, the magistrate may interview the officer, either in the clerk’s office or over the telephone, and record the testimony or make notes of the facts presented. These notes do not have to be extensive but they must record the substance of the factual basis for each element of each offense charged and must be preserved.
The magistrate may use his or her expertise to advise on the selection of the appropriate offense to be charged, based on the facts presented. Ultimately, however, the charging decision is an executive, not a judicial, function, and the police may choose to prosecute for a lesser offense, even if there is probable cause for a more serious charge. The magistrate should adopt the officer’s choice of offense if there is probable cause for that offense.
For a discussion of taking the complainant’s oath and signing the complaint, see Standard 3:24.
2:04 Denying an application after arrest
If the police fail to file a written statement or offer oral testimony, preserved by recording, that provides probable cause for every element of a charged offense, the magistrate may not authorize a complaint for that offense. Normally the magistrate should require that this obligation be met by the submission of a written statement that covers every element of the offense.
The magistrate should deny a complaint for a charged offense only if he or she finds no probable cause or has not been provided with the facts necessary to determine whether there is probable cause for that offense.
If the magistrate does not find probable cause for any of the charged offenses, the magistrate should mark the application “No Probable Cause Found” and with the date and time. The denied application for complaint should then be sent into the courtroom and placed before a judge. If the accused is in custody, the matter should be called without delay. Unless the police request redetermination by a judge (see Standard 2:05), the magistrate’s finding of no probable cause should be announced in open court and on the record. If a check of the Warrant Management System and the arrestee’s probation record reveals no outstanding warrants, the arrestee should be discharged. Any posted bail should be returned. If a motor vehicle citation was issued, an abstract should be sent to the Registry of Motor Vehicles noting the finding of no probable cause.
If no judge is sitting that day, the clerk in the session should call the matter and, after a check of the WMS and the arrestee’s probation record, announce the finding and the arrestee’s discharge on the record.
Commentary
District/Mun. Cts. R. Crim. P. 2(a) and 3(a) require a magistrate, before authorizing a criminal complaint in an arrest case, to obtain from the police “a written statement describing the facts constituting the basis for the arrest” to be given to the defendant at arraignment. The commentary to the rules indicates that the purpose of this written statement is to implement the discovery requirement of G.L. c. 218, § 26A (and now Mass. R. Crim. P. 14[a][1][A]), and not to document every element of the offense for purposes of determining probable cause.
By contrast, Massachusetts R. Crim. P. 3(g) requires a magistrate, before issuing a complaint, to obtain from the complainant “the facts constituting the basis for the complaint . . . . either reduced to writing or recorded . . . . [which] establish[] probable cause” for an offense.
The first of these requirements can only be met by a written statement, while the second may also be satisfied by electronic recording of oral testimony. The standard suggests that normally both requirements should be met by the filing of a written statement that establishes probable cause for every element of the offense.
Massachusetts R. Crim. P. 3(g) is silent as to what should happen if the magistrate finds no probable cause as to all charges sought. If the police indicate that missing information can be obtained quickly (perhaps with a phone call to the police station or the arresting officer), the magistrate may defer taking any action for a short period of time to permit the police to revise or supplement the original report. The supplemental information must be in writing or otherwise recorded.
If the magistrate finds no probable cause to authorize the complaint or the police are not able to provide facts to support the authorization of a complaint within a reasonable time, the application should be put before a judge in the courtroom so that the arrestee may be ordered released. What constitutes a reasonable time will depend upon the nature of the charges, the complexity of the matter, and the availability of witnesses or police officers, but in no event would it extend beyond the end of the court day.
Several considerations support the recommendation to bring the matter before a judge:
- If the police disagree with the magistrate’s decision not to authorize a complaint, it is appropriate that they be given an opportunity to request a redetermination by a judge. The arrestee is often already in the courtroom, either in the general audience or, if held, in the dock.
- Resolving the matter in the courtroom is an appropriate way to allow for involvement by the District Attorney’s office, which does not usually participate in the application process in the clerk’s office.
- Protecting the arrestee’s privacy is rarely a significant concern in such situations. After the opprobrium of a public arrest and sometimes incident publicity, an arrestee may well desire his or her discharge to be equally public. In addition, the public’s legitimate interest in controversial law enforcement decisions may often result in a discretionary decision to permit public access to the records of such cases. See Standard 5:02.
- Several additional steps must precede any discharge. By statute the court must check the Warrant Management System for outstanding warrants before it “releases, discharges or admits to bail” the arrestee (G.L. c. 276, § 29), and it is also appropriate to check the arrestee’s probation record for outstanding defaults or other pending matters. If the arrestee is on probation, the probation department should have an opportunity to determine whether to file a violation notice for any conduct brought to light in the police report(s) or statement(s). Calling the case in the courtroom insures that such issues are addressed before the arrestee is discharged.
- Releasing an arrestee directly from the cellblock with no appearance in open court may leave the alleged victim, prosecuting officers and interested members of the public or media uncertain as to what has occurred. Since the arrest has already put the matter in the public realm, it is appropriate for the court to encourage public confidence in its charging procedures by formally noting on the record that a judicial determination of no probable cause has been made and that is why the arrestee is being discharged and released pursuant to law.
The denied application must be kept on file for the one year retention period required by G.L. c. 218, § 35.
A finding of no probable cause does not bar police from later bringing a new application for complaint based on new or additional evidence, nor does it bar the District Attorney from seeking an indictment for the same charge(s). A new application should be processed de novo.
When an arrestee has previously been released on bail and the magistrate finds no probable cause to authorize a complaint, if the arrestee fails to appear in accordance with his or her recognizance, the court should not issue a warrant. A judge must determine whether the circumstances make it appropriate to return or to forfeit any bail that has been posted. In such circumstances, if the police wish to seek a separate complaint under G.L. c. 276, § 82A for failure to appear, they should be urged to consult first with the District Attorney’s office.
2:05 Redetermination by a judge after a magistrate’s finding of no probable cause
If the police disagree with the magistrate’s decision not to authorize a complaint, they may request a redetermination by a judge.
If the arrestee is being held, this should be treated as a matter of priority, since the magistrate has already made a decision that there is no probable cause to authorize a complaint. It must be done, at the very latest, before the close of business on the same day that the arrestee is first brought before the court, unless the arrestee is released on personal recognizance pending resolution, if it cannot be done immediately, or both parties agree to a delay, or there are independent grounds for continued detention.
A judge may decide to rehear the application de novo or simply to review the factual allegations previously provided to the magistrate. The proceeding may be conducted ex parte, since an arrestee has no right to be heard before a complaint is authorized, or the judge may allow participation by the arrestee or defense counsel. The judge may limit any redetermination to the information previously provided to the magistrate, or may allow additional information to be offered.
If a judge agrees to redetermine the matter, any hearing should presumptively be private and closed to the public. When there is a request that the public be permitted to attend, the judge should be guided by the factors in Standard 3:15 in determining whether there is a legitimate reason for access that justifies an exception to the rule.
If the judge determines that there is no probable cause for a complaint, the session clerk should endorse that finding on the application for complaint and the arrestee should be released and discharged after a check of the Warrant Management System and the arrestee’s probation record.
When no judge is present, the clerk-magistrate should request an immediate judicial redetermination through the same procedure used to obtain abuse prevention orders when no judge is sitting.
Commentary
Under G.L. c. 218, §§ 32 & 35 and G.L. c. 276, § 22, a judge has coextensive authority with a magistrate to authorize criminal complaints. The judge also has inherent authority to redetermine an application for criminal complaint that has been denied by a magistrate. Bradford v. Knights, 427 Mass. 748, 752, 695 N.E.2d 1068, 1071 (1980).
If the judge finds no probable cause for the complaint, the session clerk should endorse that finding on the application for complaint, and note the judge’s name, the date and time, and the start and end index numbers of the electronic record.
2:06 Withdrawing an application after arrest
If the police decide to withdraw an application for complaint and release an arrestee, the magistrate should note the details and reasons on the withdrawn application and retain it with denied applications.
If this occurs after the arrestee has been transferred into the court’s custody, the withdrawn application for complaint should be sent immediately to the courtroom and the matter called without delay. After review by the judge, the withdrawal of the application for complaint and the arrestee’s discharge should be announced in open court and on the record. If no judge is sitting that day, the clerk in the session should call the case and announce on the record the withdrawal of the application and the arrestee’s discharge.
The magistrate and the judge should not become involved in an arrestee’s decision whether to release the police from any civil liability.
Commentary
On occasion, police officers may decide not to prosecute after a warrantless arrest has been made. They may be required to do so if additional information has come to light so that there is no longer probable cause to proceed. See Hall v. Ochs, 817 F.2d 920 (1st Cir. 1987) (Fourth Amendment requires that police release arrestee as soon as they learn they have arrested wrong person); S.J.C. Rule 3:07, § 3.8(a) (prosecutor may not prosecute a charge that is not supported by probable cause).
In appropriate cases, the magistrate might suggest that the police consult with the District Attorney’s office before reaching a decision whether or not to prosecute after an arrest.
Judges and magistrates should not become involved in an arrestee’s decision whether to release the police from civil liability. It is improper for the court to use the criminal process as a tool to affect questions of civil liability arising out of the arrest or complaint process. Foley v. Lowell Div. of the Dist. Court Dep’t, 398 Mass. 800, 804-805, 501 N.E.2d 1151 (1986); Enbinder v. Commonwealth, 368 Mass. 214, 220, 330 N.E.2d 846, cert. denied, 423 U.S. 1024 (1975). See also Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187 (1987) (plurality opinion) (validity of civil release depends on accused’s informed and voluntary consent and no evidence of prosecutorial misconduct); Commonwealth v. Klein, 400 Mass. 309, 311-312, 509 N.E.2d 265, 266 (1987) (permissible for judge to enforce civil release negotiated by counsel without court involvement as part of negotiated settlement).
For record requirements on denied applications, see Standard 5:01.