Criminal Defense

What Happens at a Show Cause Hearing

Many clients come to me for the first time having received a summons for a “show cause hearing,” also called a “clerk’s hearing” or a “magistrate’s hearing.”  Confusion abounds regarding these hearings, and there is a great deal of misinformation in circulation as well.  This post aims to give you a solid grounding in what to expect at the hearing.

A show cause hearing is a short hearing to determine whether a person should be charged with a crime.  Most criminal charges are issued before the accused has a chance to object, however, Massachusetts provides the show cause hearing as an alternate process that gives the accused notice of the charges and the opportunity to argue against them before the charge ever issues.  This is particularly important because a case that is resolved at the clerk’s hearing never goes on your criminal record, and the ability to resolve a case at this level can save a great deal of time, anguish, and legal fees. If you have received a summons to a show cause hearing, you have the right to bring a lawyer that you hire.  However, there is no right to appointed counsel at this stage, so if you cannot afford a lawyer or choose not to hire one, you will be on your own.

When hiring a lawyer for a show cause hearing, the most important thing is to hire an experienced defense lawyer who feels like a good match for you, and is somebody you can work with.  Talk to the lawyer before you hire them about how they will handle your case, and make sure that they plan to pursue a strategy that you can get on board with.  When lawyers and clients are unable to persuade each other to see the case their way, the client may well be served by a different lawyer.  If the lawyer you want to hire is not available for the scheduled hearing, most courts will allow the hearing to be rescheduled for a day when your lawyer is available.

I will discuss the show cause hearing in three sections.  In “the legal standard” I will discuss what the law says is supposed to happen at a show cause hearing.  In “informal resolutions,” I will discuss the settlements that often come out of these hearings, even though they are not part of the legal framework.  In “nuts and bolts,” I will discuss the look and feel of the hearing–who is present, where it is held, and so on.

The Legal Standard

The legal standard at a show cause hearing is called “probable cause.”  The person who filed the complaint application (usually a detective) must show the clerk-magistrate enough information that a reasonably cautious person would believe that the accused committed the alleged crime.  The technical rules of evidence do not apply, and hearsay is allowed.  This is a low bar, but it still requires some evidence (even a person’s say-so will do) that matches the technical definition of the crime.  Consider the following two statements:

“Before I will lend you my car, I want to know that you are a safe driver.  I don’t need a lot of evidence, but I need some reason to believe it.”

“Before I will lend you my car, I want to know that the sky is purple and the moon is actually, literally made of green cheese.  I don’t need a lot of evidence, but I need some reason to believe it.”

Here, the burden of proof is the same—and it’s a low burden.  In the first example, the driver might say “well, I’ll tell you what a safe driver I am, and you should believe me because you know I’m trustworthy.”  They might show their driving record, or they might volunteer to do a test-drive.  Any of these would do in a show-cause hearing.  In the second example, however, we know that the driver is very unlikely to end up with the car.  Even if she swears that the sky is purple and the moon is made of actual green cheese, the magistrate is not very likely to accept her word because it is such an improbable idea.  Extraordinary claims require extraordinary proof. 

The low burden does, however, influence strategy at a show cause hearing.  One can view every statement and inference in the case against you as something that is open to contest.  However, contesting facts is rarely fruitful at a show cause hearing—the magistrate is not supposed to be resolving questions of fact, but rather deciding what to do with a particular set of allegations—and they will do it inside of about ten minutes.  The only time that facts should be contested at a show cause hearing is if there is concrete proof that a key allegation isn’t true.  For example, “I couldn’t have committed this crime, because I have proof that I was in Montana the week before, and I say that I was still in Montana at the time of the crime” may be an acceptable alibi for trial, but would likely fail at a show cause hearing.  “I couldn’t have committed this crime because I was in the hospital in a coma at the time, so the person who says he saw me there must be mistaken,” is the level of absolute proof that is needed to contradict a fact at a show cause.  Rather, if a show cause hearing is to be contested,  it is nearly always contested on the inferences or the legal standards.  In some cases, there is no defense to be made at the show cause hearing, but it can still be a valuable opportunity to learn about the state’s case in detail at a very early stage.

Technically, if the magistrate believes that the complainant has produced enough evidence, they “find probable cause” and issue a document called a “complaint.”  The complaint formally charges the accused with the crime, and the case will proceed to arraignment.  If the magistrate does not see the proof, they “find no probable cause.”  The case ends, the file is destroyed, and there is no record that it ever happened (except, perhaps, in the detective’s and defendant’s own files)

In practice, however, there is often an additional step–if the clerk-magistrate believes there may be some substance to the allegations, but thinks it is a close call or just not very serious, there may be room for an informal resolution.

Informal Resolutions

An informal resolution is a settlement mediated by the clerk-magistrate at the show-cause hearing that allows the suspect to avoid formal criminal charges, while acknowledging that the complaint may have some legitimacy.  The terms vary from one case to the next, but may include:

  • Staying out of trouble for a set period of time, often 6 months or a year;
  • Paying money to the court or restitution to the alleged victim;
  • Not contacting the alleged victim;
  • Any other terms that the parties agree to.

Both the suspect and the complainant must agree to the settlement.  If either party objects, the clerk-magistrate is required to determine probable cause and either issue the complaint or not.  It is important to note that the complainant in most cases is the police officer who filed the case, not the alleged victim.  However, the police officer will usually take the alleged victim’s feelings into account in determining whether to settle the case at the show-cause level.

In my experience, most show cause hearings are settled at this level.  Even if probable cause is clearly present, the magistrate may want to settle the case because it is not very serious.  Even if probable cause is clearly absent, the magistrate may want to appease the complainant and/or alleged victim, and not create the appearance of telling them that their concerns are invalid.

Nuts and Bolts

Arrive early to the show-cause hearing.  Make sure to leave time to get stuck in traffic (or delayed on the T), have trouble parking, and get held up at security and still be early.  Bring a copy of your summons to court with you.  Dress in business attire.  When you arrive at the courthouse, check in at the clerk-magistrate’s office and make sure you know where to go.  Some courts hold show cause hearings in courtrooms, other use hearing rooms or conference rooms.  If you have hired a lawyer, make sure that you and your lawyer have agreed on where and when to meet at the courthouse.

When the hearing starts, you will likely be in a room with your lawyer (if you have one), the police officer who filed the case, and the magistrate.  If there is an alleged victim, they might or might not be present.  Some courts hold the hearings in a large room, and other people who have hearings that day might be present.  Newton District Court is the only court where I have personally seen it done this way–private hearings are more common.  The hearing will likely not be “on the record,” but either side my ask the clerk-magistrate for permission to make their own recording.

At the beginning of the hearing, the clerk-magistrate will swear in the detective, the defendant, and any witnesses.  Even if you do not plan to testify, they will still swear you in.  The clerk-magistrate will ask the detective (or citizen complainant) to summarize the facts of the case, and to present any witnesses or evidence.  This is usually a brief, informal summary of the case, not a formal trial-type presentation.  The defendant has a limited right to cross-examine the witnesses.  The clerk-magistrate will then ask the defendant if s/he wants to say anything or present any evidence.  The defense can make factual statements, legal arguments, or both.  The magistrate may have questions for either side.  Once the evidence is closed, the magistrate will announce his or her decision.  If the magistrate asks the defendant to make a payment as part of a settlement, the timing of the payment should be discussed.  In Belchertown District Court, for example, immediate payment is usually expected unless other terms are discussed.  If the clerk-magistrate decides to issue a criminal complaint, the court may ask the defense lawyer to suggest a date for arraignment, or they may simply send notice out by mail.  In the Brighton and Roxbury divisions of the Boston Municipal Court, arraignments are done immediately after the show-cause hearing to save everybody a trip back to court.

If you have a show-cause hearing coming up and need to hire counsel, give us a call at 617-749-2353.  We’d love to hear from you!

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