Written by attorney Ilir Kavaja

Clerk Magistrate Hearings: An overview

A Clerk Magistrate Hearing is often either grossly underestimated or completely ignored by soon-to-be-defendants due to a lack of understanding of its importance and a fear of the unexpected. This blog is intended to be an introduction to the magistrate hearing process, and an attempt to briefly explain the mechanics and logistics of it.


A Clerk Magistrate’s hearing is a protection afforded to people within the Commonwealth of Massachusetts. It is a necessary requirement for all non-arrest misdemeanors pursuant to the Massachusetts Rules of Criminal Procedure. [i]


Typically, an individual will receive notice of an impending Clerk’s hearing if a police officer or a private individual has applied to the Court for the issuance of a Criminal Complaint. In most cases, it is the police who apply for the issuance of a Criminal Complaint. This is due to two main factors: 1) Police patrol the streets and witness crimes occur, or they are called to the scene of a crime to conduct an investigation; or 2) Private individuals report crimes directly to the police. Rarely will a private individual go directly to the Courthouse and ask the Court to issue a Criminal Complaint against someone. The Court then notifies the person against whom the complaint is sought of an upcoming hearing to determine if the complaint should issue.

Once in front of a Clerk Magistrate, s/he usually reads from the police report and asks the police officer present (usually a sergeant within the department) if there is any additional information to add. Then the accused has an opportunity to make statements, arguments of law (not fact), dispute the facts (i.e. provide an alibi), ask questions of the police officer, and make a suggestion to the Clerk Magistrate regarding the outcome of the hearing. Ultimately, the Clerk Magistrate will make a decision regarding the matter.

There are four possible outcomes at this stage:

  1. Find no Probable Cause exists to issue the Criminal Complaint and dismiss the application with prejudice. This means anyone is precluded from ever applying for a Criminal Complaint seeking to charge the person with the same crime and arising out of the same set of facts.
  2. Find no Probable Cause exists to issue the Criminal Complaint and dismiss the application without prejudice. This means that police or an individual may re-apply for the issuance of the Criminal Complaint, if new and additional facts are alleged.
  3. The Clerk Magistrate may choose not to make a finding at all. Rather, the Clerk may choose to grant a General Continuance of the application, and usually the Clerk will dismiss the application if the accused does not get into trouble with the law by the end of this timeframe.
  4. Find that there is enough Probable Cause to issue a Criminal complaint. If this happens, then a Criminal Complaint is issued against the accused, and s/he receives notice of the Arraignment date.


In order to issue a Criminal Complaint, a Clerk Magistrate must find that there is Probable Cause to do so. The Clerk must determine whether or not the facts stated in the complaint, if true, constitute a criminal offense to charge an individual with. The rule is clear in as much as the complaint must contain specific facts to support issuing a Criminal Complaint. Notably, conclusions of law are not sufficient to support a finding of Probable Cause to issue a Criminal Complaint. Generally speaking, it is not enough to state that “Individual Asolicited sex for a fee from individual B"; that is a conclusion of law. However, if a complaint contains specific facts, such as “Individual A approached and offered $ to individual B in exchange for sex", then Probable Cause to issue a Criminal Complaint most likely exists because there are specific facts that, if assumed to be true, constitute a crime.

So What!?

A Clerk Magistrate’s hearing is a crucial step in the criminal justice system. It decides whether or not an individual can be charged with a crime. As a result, it also determines whether or not the offense charged would ever be in the individual’s criminal record. If Probable Cause is not found, then the charge will not appear on the individual’s criminal record. However, if the complaint is issued, and subsequently dismissed in court by a judge, then the charge will appear on an individual’s criminal record (unless expunged, or sealed).

It is imperative to have adequate legal representation at this initial stage of the proceedings. The outcome of the Clerk Magistrate hearing determines whether an individual will spend any more time, energy and resources in defending against criminal charges. Moreover, it can also impact one’s professional future, as some professions/jobs are reluctant to employ individuals who have been charged with a crime.

The Bottom Line:

Take a Clerk Magistrate’s hearing very seriously!

[i] Mass.R.Crim.Pro. 3 (g)

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