There are four ways that can start the process of bringing a person to district court for a criminal case. While the end result may be the same, it is important to understand how each way differs, as your options may change based on how the case was initiated.
A warrantless arrest is simply an arrest that occurred without the police or prosecutors first seeking a warrant. The police have the power to make a warrantless arrest for all felonies. The police may also make a warrantless arrest for misdemeanor offenses that involve a breach of the peace and that occurred in the presence of the police and were either continuing at the time of the arrest or were interrupted by the arrest. These requirements have been set by the Supreme Judicial Court in the case of Commonwealth v. Gorman, 228 Mass. 294 (1934). However, these requirements have been removed by the legislature for certain misdemeanors such as some larcenies, violations of restraining orders, and domestic violence charges by Massachusetts General Laws c. 276 § 28.
It’s important to understand these requirements, as certain evidence may be thrown out if the police made a warrantless arrest when they didn’t have the authority to do so.
There are a few different types of arrest warrants, but the only one that can start a criminal case is colloquially called “straight warrant.” The power to issue this type of warrant provided in Rule 6 of the Massachusetts Rules of Criminal Procedure. The government, by way of a police officer or a prosecutor, may request that an arrest warrant be issued for any offense as long as the requesting party makes a representation that the subject to the warrant may not appear before the court unless arrested. To secure this type of warrant, the requesting party must supply the court with allegations against the accused (usually by way of a police report), and it must be signed off by a judicial authority.
When a person is not arrested, or an arrest warrant does not issue, the case will often start with a summons. This is a piece of paper that is sent to the defendant to tell them that they must appear in court on a certain date to be officially arraigned on criminal charges. Summonses are the default when a person is not arrested, and are supposed to be used instead of a straight warrant unless the police can show that the subject of the complaint is either a flight risk to a danger.
Show Cause Hearing/ Clerk Magistrate’s Hearing
When the majority of misdemeanors are alleged to have occurred outside of the presence of police, the court is supposed to schedule the case to go before a clerk magistrate for a hearing to determine if probable cause exists to issue the complaint. However, some misdemeanors that occur in the presence of police (such as an OUI that resulted in the defendant being brought to the hospital instead of being arrested) can also start out as a Show Cause Hearing. If the clerk finds that there is no probable cause, the case ends there. However, if the clerk does believe that there is probable cause of the complaint to issue, then the defendant will be summoned to court.