- 209A Abuse Prevention Restraining Order
- Admission to sufficient facts
- Continuance without a finding (“CWOF”)
- Compliance and election
- Default warrant
- Discovery compliance
- Harassment Prevention Order
- Issue a habe
- Nolle prosequi
- Personal recognizance
- Pretrial diversion
- Pro Se Defendant
- Take under advisement
- Triple I
- Writ to issue
Types of Charges
- Identity fraud
- Larceny by check
- Larceny by embezzlement
- Larceny by stealing
- Negligent operation of a motor vehicle
- Receiving stolen property
Types of Hearings
- Default removal
- Detention / Dangerousness hearing
- Evidentiary hearing
- Final surrender hearing
- Motion hearing
- New summons
- Pretrial conference
- Pretrial hearing
- Probable Cause hearing
- Probation surrender
- Restitution hearing
- Show-cause hearing
- Summary process hearing
- Supplementary process hearing
- Surrender hearing
- Section 35
- Voire dire
Types of Motions
In Massachusetts, victims of domestic violence can obtain court orders designed to protect them from further harm. These court orders are referred to by various terms, including “Abuse Prevention Orders,” “restraining orders,” and “protective orders.” Most of these orders are issued under the authority of Chapter 209A of Massachusetts General Laws, and the orders are sometimes called “209A” orders.
You can obtain abuse prevention orders when the abuse was committed by family or household member or by a person with whom you were involved in a dating or marital engagement relationship.
Abuse prevention orders are issued to protect further harm when the abuse involved caused physical harm, attempted to cause physical harm, made the alleged victim afraid of future serious physical harm, or made the alleged victim have sex by force, threat or duress.
Read our blog post about why we’re initially choosing not to stream 209A proceedings.
The defendant admits to sufficient facts to warrant a finding of guilty instead of actually pleading guilty. The procedure is a vestige of an old trial system that has since been abolished by the Massachusetts state legislature. However, it is still used by defendants as a way for the defendant’s case to be continued without a guilty finding (see continuance without a finding). This form of plea may be refused by the judge, or it may be conditionally accepted upon the compliance of defendant with certain requirements that the parties have agreed to or that the judge otherwise imposes.
Compliance and election is a shorthand reference to Massachusetts District/Municipal Court’s Criminal Rule 5, which provides for the scheduling of a date to accomplish discovery compliance and jury waiver election. On the compliance and election date, all evidence is due from the government to the accused (the compliance portion), and the accused chooses whether he or she wants to be tried by a jury or a judge alone (the election portion). The trial is also scheduled on the compliance and election date. The trial is usually scheduled for eight to twelve weeks after the compliance and election date.
The defendant essentially offers to plead guilty and promises to comply with the judge’s terms and conditions to avoid being actually found guilty. In practice, a defendant will usually just admit to sufficient facts to warrant a finding of guilty (see admission to sufficient facts), which is treated as an offer to plead guilty for the purposes of this procedure. A defendant seeking a continuance without a finding offers to plead guilty, and then specifically requests: (1) that a guilty finding not be entered; and (2) that the case be continued to a specific date, at which time the judge will dismiss the case (assuming that the defendant has, in the meantime, complied with the judge’s terms and conditions on granting the continuance). Dismissal of the case means that no criminal conviction will appear on the defendant’s record; however, the continuance will still appear on the record, and the mere admission to facts can have other legal consequences, especially with respect to immigration status. If the judge allows the continuance without a finding, the record must show the judge’s reasons for granting the request.
A default warrant is a warrant for arrest that the state can issue when a person fails to appear in court after having been given notice to appear. Such a warrant can also be issued when a person fails to pay a court-ordered fine. To vacate such a warrant, the defendant must appear in court. Additional penalties can be added to a default warrant such as a statutory fee. If bail has been posted, it may be raised or may no longer be an option.
The process by which the two parties to the litigation exchange information relating to the case. In general, the court expects the parties to work out the details and logistics of discovery between themselves. Discovery devices available to the parties to elicit information and documents from the other include depositions, written interrogatories, and requests for production. In civil proceedings, each party usually begins discovery a short time after the case survives a motion to dismiss, assuming such a motion is made. In Massachusetts criminal cases, the prosecution is automatically required to disclose to the defense certain documents and information at or before the pretrial conference.
Compliance with all that is required in the discovery process. When a party in a criminal case has provided all discovery required by either the Massachusetts Rules of Criminal Procedure or a court order, it shall file with the court a Certificate of Compliance. The Certificate of Compliance states that the party, to the best of its knowledge, has disclosed and made available all items subject to discovery (with some exceptions) and shall identify each item provided.
(1) a final settlement or determination of a case or a particular issue. In criminal cases, this usually refers to the defendant’s ultimate status as guilty or not guilty.
(2) the act of transferring something to another’s care or possession (e.g. by bequest)
Personal recognizance is the term used when someone facing criminal charges is released from jail without having to post bail pending trial. If the judge deems that the defendant is not likely to flee and will show up for trial, the judge will release the defendant on his or her personal recognizance.
A harassment prevention order is a court issued-order to protect someone from threatening or abusive acts, communication or contact. The order can stop the harasser (the defendant) from coming within a certain distance of the person seeking the order, as well as prohibit harassment and attempts to contact the victim. A temporary order is one that is issued before a hearing when the judge feels that a person is in immediate danger of harassment; it lasts until the hearing. A final prevention order is issued after a hearing and lasts for up to one year, but can be extended. Under the new 2010 Massachusetts Harassment Prevention Order law the relationship between the parties does not matter—you can get a harassment prevention order even if you do not know the person. M.G.L. c. 258E, § 1.
“Issue a habe” is a shorthand reference to issuing a writ of habeas corpus, which is Latin for “you have the body.” One of the fundamental protections of individual liberties in Anglo-American law, a writ of habeas corpus is used to bring a person who is in the custody of the state before a court or judge. It commands the sheriff or other person to produce the detainee in court so that the court may determine whether that person is being held legally.
Nolle prosequi (also known as nol pros) is Latin for “we shall no longer prosecute.” The plaintiff in a civil lawsuit, or the prosecutor in a criminal case, declares nolle prosequi if they no longer want to continue part of their lawsuit. They may seek to drop some or all of their counts against some or all of the accused persons. A prosecutor normally declares nolle prosequi for several reasons: if the initiator of the suit cannot prove guilt, the evidence has proven the accused is innocent, the prosecutor no longer believes the accused is guilty, or the accused has died. As long as nolle prosequi is declared at any point before a jury trial has started, the charges may be brought again at a later point without having the suit thrown out for double jeopardy.
A pretrial diversion is where a court orders a criminal defendant to a “program” (usually some form of community service) and stays the criminal proceeding against the defendant. This procedure is only available to persons older than seventeen and younger than twenty-two who have no prior convictions other than minor traffic violations. If the defendant violates a condition of his program, the court may terminate the stay and allow proceedings against the defendant to resume.
A defendant who has waived his/her right to have a lawyer and decided to represent himself/herself.
To reserve on a matter, such as a motion, means to delay issuing a judgment on the question. This leaves the issue open, and the judge can give a decision at a later time when he or she has had more time to think about the matter. A party in the case can also reintroduce the subject if new information makes it relevant again, making the judge more likely to make a decision.
A stay is a court order that halts further action in a judicial proceeding or suspends a judgment or court order. A stay is generally temporary, lasting until some event occurs or the court lifts the stay. There are two main types of stays: a stay of proceedings and a stay of execution. When a court issues a stay of proceedings, it puts a trial or some element of a case on hold—usually until a condition imposed by the court happens. A judge may also decide to stay a proceeding in order to wait for the resolution of some issue outside of that proceeding that might affect the case. A stay of execution postpones the enforcement of a judgment or order against one of the parties until a specified time, some event occurs or the judge lifts the stay. When a court decision is appealed, that judgment is stayed until the appeal is resolved. Parties can also agree between each other on a stay of execution for a set amount of time.
A stipulation—also referred to as a judicial admission—is a concession made by a party during a judicial proceeding. One side usually submits a document to the judge recognizing that both sides agree about a particular issue or fact. A stipulation in a criminal proceeding generally involves the defendant acknowledging the truth of a fact pertinent to the charges against him. When stipulations are entered, they help the trial move along much more quickly because those facts no longer need to be argued. The presiding judge has discretion, though, over whether to accept a stipulation or require the issue to be tried. Stipulations can be submitted as evidence, even when the defendant does not testify. A defendant may want to stipulate to certain facts in order to prevent unfavorable witnesses being called to testify on those facts.
A court takes a case under advisement after it has heard the arguments made by the counsel of opposing sides in the lawsuit but before it renders its decision. The term denotes the time where the judge is deliberating on a particular issue (or the entire case) after hearing arguments from both sides. Deliberations are most often done by the judge while in chambers, and they will rarely, if ever, make it onto the public audio record.
Triple I (also known as III) is short for the Interstate Identification Index System. It is a federal-state system that centralizes criminal history records and criminal fingerprint cards. The FBI maintains the index, which contains identification information for people who have been arrested for state and federal felonies and misdemeanors that warrant fingerprinting. Criminal justice agencies can use the index to identify if an arrested individual has committed offenses in another state. The information contained in the database is used for law enforcement purposes such as sentencing or bail setting.
A judge may order a writ to issue, which is a written command in the name of the court directing the party to whom it is addressed to act or abstain from acting in a certain way.
Types of Charges
Forgery can be committed in three ways: (1) To counterfeit or produce what appears to be a genuine legal document, but which is in fact a phony document. (2) To falsely fill in one or more important parts of a genuine document — for example, by forging someone else’s signature on a check or a bill of sale. (3) The third way is closely related to the second: altering in a significant way one or more parts of a genuine document that has already been made out — for example, changing the amount on a check.
Identity fraud means posing as another person without the authorization of that person and to use such person’s identifying information to obtain (or try to obtain) anything of value or to harass someone. There are two types of identity fraud: (1) by posing as another; and (2) by obtaining personal identifying information.
Larceny is a crime involving the wrongful acquisition of the personal property of another person or entity. Below are several specific charges of larceny.
Larceny by check involves obtaining goods or services by writing a check with knowledge of insufficient funds and with intent to defraud.
In order to prove a defendant guilty of embezzlement, the Commonwealth must prove three things beyond a reasonable doubt: (1) That the defendant, while in a position of trust or confidence, was entrusted with possession of personal property belonging to another person or entity; (2) That the defendant took that property, or hid it, or converted it to his/her own use, without the consent of the owner; and (3)That the defendant did so with the intent to deprive the owner of the property permanently.
Stealing is the wrongful taking of the personal property of another person, with the intent to deprive that person of such property permanently. In order to prove the defendant guilty of larceny, the Commonwealth must prove three things beyond a reasonable doubt: (1) That the defendant took and carried away property; (2) That the property was owned or possessed by someone other than the defendant; and (3) That the defendant did so with the intent to deprive that person of the property permanently.
To operate a motor vehicle negligently means to drive in a manner that might endanger the public. In order to prove the defendant guilty of this offense, the Commonwealth must prove three things beyond a reasonable doubt: (1) That the defendant operated a motor vehicle; (2) That he/she did so on a road or in a place where the public has a right of access; and (3) That he/she did so in a negligent manner so that the lives or safety of the public might have been endangered.
The charge means the defendant received stolen property, knowing it to have been stolen. In order to prove the defendant guilty of this offense, the Commonwealth must prove three things beyond a reasonable doubt: (1) That the property in question was stolen; (2) That the defendant knew that the property had been stolen; and (3) That the defendant knowingly had the stolen property in his or her possession, or bought the stolen property, or aided in concealing the stolen property.
In the offense of uttering a false, forged or altered check, promissory note or order for other property, “uttering” means attempting to pass in circulation a worthless document as genuine.
Types of Hearings
An arraignment is a criminal proceeding at which the accused is officially called before a court, informed of the offense charged in the complaint, indictment, or other charging document, and asked to enter a plea of guilty, not guilty, or as otherwise permitted by law. Depending on the jurisdiction, arraignment may also be the proceeding at which the court determines whether to set bail for the accused or release the accused on his or her own recognizance. Ordinarily, the accused must be arraigned before the impaneling of the jury or at least before the introduction of evidence. If an unreasonable delay occurs between the time an accused is arrested and charged with an offense and the time the accused is arraigned, state and federal courts may dismiss the criminal proceedings as having violated the accused’s Sixth Amendment right to a speedy trial.
When the defendant in a civil trial fails to plead (i.e., answer the plaintiff’s complaint) or otherwise defend, the defendant is in default and a judgment by default may be entered either by the clerk or the court. A default may be removed at the court’s discretion, on its own initiative, or on motion of either party in writing, at any time prior to the entry of judgment on such default.
A detention hearing, sometimes called a “dangerousness” hearing, is a hearing before the court to determine whether to detain the defendant until the date of trial. A hearing will only be held upon motion by the Commonwealth, and if it so moves, the hearing is held immediately upon the defendant’s first appearance before the court. Only certain felonies and certain crimes involving violence will make a defendant eligible for pretrial detention, and a judge may only impose it if he or she determines by clear and convincing evidence that no conditions of release will reasonably assure the safety of any other persons or the community.
A hearing at which evidence is presented – contrasted with a hearing at which only legal argument is presented. Evidentiary hearings will be used by the court to resolve factual disputes relevant to deciding on a particular issue.
A final surrender hearing is a court proceeding where a probation officer tries to convince a judge, by a preponderance of the evidence, that the defendant probationer has violated the terms of his or her probation.
A hearing on any motion. Counsel for both sides present arguments to the court in support of or in opposition to the motion, depending on which party filed the motion. Different motions are governed by different procedural requirements.
A summons serves as written notice to whom it is directed that a legal proceeding has been started against that person, and that a case has been initiated in the issuing court. The summons also announces a date by which the party must either appear in court, or respond in writing to the court or the opposing party. A new summons may be issued for multiple reasons, such as the original summons was not served within the specified time period, changes to the original summons need to be made, etc.
Essentially a court-ordered meeting between opposing counsels so that they may first determine between themselves where their primary agreements and disagreements lie. They discuss, among other things, discovery matters, whether the case can be disposed of without a trial, a suitable date for a potential trial, and an estimate of the probable duration of the trial. The date for a pretrial conference is scheduled at a defendant’s arraignment, and counsel for both parties are required to attend the conference. The results of the pretrial conference shall be contained in a pretrial conference report and shall be filed with the court at the pretrial hearing.
Like the pretrial conference, the date for the pretrial hearing is scheduled at a defendant’s arraignment. Unless the court declines jurisdiction or disposes of the case at the pretrial hearing, the pretrial hearing will include: (1) the filing of the pretrial conference report; (2) the court’s ruling on any pending discovery motions, and possibly any other pretrial motions (e.g. motions concerning admissibility of evidence); and (3) the court’s determination whether all discovery matters have been resolved, and if so, the court’s setting of a trial date. The defendant may also tender a plea or other requested disposition at the pretrial hearing. The purpose of this hearing is for the court to attempt to resolve any contested issues in the pretrial conference report and to officially set a date for trial.
The primary function of the probable cause hearing is to screen out those cases that should not go to trial. A hearing occurs after an individual has been charged with a crime at which the individual is entitled to the assistance of counsel, the presence of a neutral factfinder, and the opportunity to prepare his or her case. In cases where the District Court does not have final jurisdiction over the case, or where it otherwise declines jurisdiction, the hearing serves the purpose of determining whether there is sufficient legally admissible credible evidence of the defendant’s guilt to justify sending the trial up to the Superior Court. If the District Court finds that there is no probable cause to believe that the defendant committed the crime or crimes alleged in the complaint, the court shall dismiss the complaint.
The term “probation surrender” is used almost exclusively in the state of Massachusetts to mean simply a violation of probation. There are many ways one can violate the terms of his or her probation. One can get arrested or charged with another crime, fail to notify of change of address, fail to report to the probation officer, fail a drug test, fail to pay probation fee, fail to attend rehabilitation programs, fail to keep away from the victim, and so on. “Surrender” means to give up a legal right. Indeed, a violation of the terms of probation can result in a loss of many legal rights, including jail time, fines, community service, etc.
A restitution hearing follows a defendant’s conviction; it is an evidentiary hearing to ascertain the extent of the damages or financial loss suffered as a result of the defendant’s crime. The court may then determine the amount and method of restitution, taking into consideration the financial resources of the defendant.
A surrender hearing, also known as a probation revocation hearing, occurs when a person on probation for a previous offense allegedly violates the terms of his or her probation. If the court determines that the individual violated the terms of probation, it may allow probation to continue (usually with additional conditions), or it may impose the originally suspended sentence. Depending on the timing of the judgment on the original offense, the judge may be required to impose the original sentence.
Massachusetts General Laws Chapter 123, Section 35 permits the courts to involuntarily commit someone whose alcohol or drug use puts themselves or others at risk. Such a commitment can lead to an inpatient substance abuse treatment for a period of up to 30 days.
Under the law, the person can be committed to a licensed treatment facility or, if none is available, to a separate unit at the correctional facility at Bridgewater for men or Framingham for women.
In 2006, a new system of care for women was established and in 2008, a similar one was established for men. The Women’s Addiction Treatment Center (WATC) is in New Bedford and the Men’s Addiction Treatment Center (MATC) is in Brockton both provide intake and treatment for those civilly committed under this law.
At a show-cause hearing, a complaining party must produce evidence demonstrating cause or reason for the complaint/charge. The hearing has three possible outcomes: 1) the complaint/charge is dismissed, 2) the complaint/charge is issued, or 3) the complaint/charge is continued.
A summary process hearing is where a landlord and tenant have an opportunity to present their case regarding an eviction lawsuit that the landlord has filed against the tenant. If the judge finds for the tenant, the tenant will not be evicted. If the judge finds for the landlord, the tenant will be ordered to vacate the property. In unique cases, such as elderly or disabled tenants, the court may grant extensions to allow the tenant more time to vacate.
A supplementary process hearing is held to examine a debtor’s ability to pay the money owed under a judgment against the debtor. Using the information obtained from a supplementary process hearing, the court can create an order requiring payment according to a specific schedule. In some cases, however, the court is powerless because a debtor has no assets and is judgment-proof.
A preliminary examination of prospective jurors or witnesses under oath to determine their competence or suitability.
Types of Motions
A written or oral application requesting a court to make a particular ruling or order.
A motion to dismiss is an assertion by the defendant that the party bringing suit (either the Commonwealth or a plaintiff in a civil case) is stating a claim for which the law offers no remedy. The court must generally accept as true the plaintiff’s allegations in the complaint in deciding whether the stated claims offer any legal recourse to the plaintiff. A motion to dismiss, if filed, will usually be filed by the defendant very early in the case, often before the defendant answers the complaint. A successful motion has the effect of dismissing the case. Cases can be dismissed for a variety of reasons, but the most common are: (1) lack of jurisdiction (over the person or over the subject matter of the case); and (2) failure to state a claim that the law recognizes as a cause of action (legalese: “failure to state a claim upon which relief can be granted”). An example of this would be a plaintiff who sues someone for making a funny face at her. Even if the plaintiff proved that this occurred, the law would provide no remedy, so the case should be dismissed at the outset.
A motion to recall most commonly means a motion filed by a party to recall a witness to testify again. However, it can also refer to a motion filed by a party to alter a previously ordered writ (where a “writ” is a court’s written order commanding the recipient to do or refrain from doing some specified act).
A motion to revoke may refer to the revocation of bond, probation, parole, etc. Based on changed circumstances or new information (e.g., the probationer or parolee is found to have violated the terms of his or her probation or parole), a judge may determine revocation is warranted. The party facing potential revocation is entitled to appear to contest the allegations supporting the motion to revoke.
A motion to suppress is typically brought by the defense to request that certain evidence be excluded at trial. Generally this motion is made on the grounds that the evidence in question was illegally obtained—often in violation of the suspect’s Fourth, Fifth, or Sixth Amendment rights. For example, if a police officer obtains evidence from a criminal suspect without first reading the suspect his Miranda rights, the defense can bring a motion to suppress to keep that evidence from being admitted at trial. Violations of state constitutional and statutory rights can also serve as the basis for a motion to suppress. If the judge grants the order, evidence is then excluded from the jury or judge’s consideration in the case.