CRIMINAL PROCEDURE IN THE
MASSACHUSETTS DISTRICT COURTS

Suffolk County • Norfolk County • Middlesex County    • Worcester County

Phone: (978) 261-3307
Nights and Weekends: (508) 400 – 7012

The criminal legal process can unexpectedly affect otherwise law abiding citizens for a number of reasons. Frequently these include motor vehicle offense, including accusations of drunk driving, accusations of assault and battery, violating a restraining order, or accusations of violations of drug laws. 

The vast majority of criminal cases brought in Massachusetts are brought in the District Court system. The Massachusetts District Courts have jurisdiction over most crimes, and can generally sentence defendants only up to two and a half years in jail on each charge. More serious crimes are handled in the Superior Court, and the following information does not always apply. 

If you find yourself accused of a crime, it is imperative to talk to a lawyer immediately, before talking to police. Do not take legal advice from the police.  

This page presents an overview of Massachusetts State District Court criminal process. It then concludes with information applicable in criminal cases to general cases. 

Massachusetts District Court Criminal Procedure

The following section is broken into two main sections: (A) instituting of the case (by arrest or summons), and (B) the procedures in court from arraignment to trial. This is intended as an overview only. An accused should always consult with a lawyer.  

    I.    The Institution of the Criminal Process - Arrest or Summons

Criminal cases in the Massachusetts District Court system begin in one of two ways: an arrest , or a summons .

         A. Arrest.  In many cases, the criminal process is started by an arrest of the accused by police. What a person does in the course of the arrest, in terms of giving a statement to or otherwise cooperating with police, is very important. In most District Court criminal cases, the entire police investigation is completed within a few hours of the arrest, before the accused even makes an initial court appearance. Statements of witnesses will be taken at the scene. Statements of accused will be taken at the scene, or at the police station following an arrest. It is generally not in an accused's best interest to make a statement to the police. In many cases, the existence of a statement by an accused can mean the difference between an acquittal and a conviction. 

                1. Booking. Once an accused is arrested, he or she will be taken to the police station to be booked. Booking includes having photos and fingerprints taken, as well as answering background information, such as name, address, telephone number, etc. Prior to any substantive questioning, the accused will be read Miranda Rights; the right to remain silent, the right to a lawyer, the right to have a lawyer free of charge prior to any questioning if an accused cannot afford one, the right to stop questioning at any time. An accused should heed the Miranda Rights, and demand to speak to a lawyer prior to any questioning. In almost every case where an accused asserts his or her right to a lawyer, questioning stops and never resumes; the police know that once a lawyer is involved the accused will not provide any incriminating statements.  

                2. Bail. An accused is entitled to a determination of bail promptly, even if the courts are closed. Often, an arrest occurs in the evening. In such situations, an accused is entitled to a determination of bail by having a bail commissioner called, who is empowered to set the amount of bail. The accused will then have an opportunity to make phone calls to arrange to meet the bail set. If an accused makes bail, he is released and told when and where to report to court. The 'when' is usually the next business day at 8:30 or 9:00 a.m.

        B. Summons. A summons is a document mailed to the accused person, informing him or her that a criminal complaint has or will be issued against him or her. It instructs the accused to appear in court on a certain date at a certain time. If the accused does not so appear, an arrest warrant normally will be issued, subjecting the accused to arrest at any time. 

II. Procedures in Court

        A. Arraignment. Whether the criminal process is begun by an arrest or a summons, the procedure in court begins with the arraignment. The arraignment occurs on the first day the accused appears in court, and in the case of an arrest, is usually the next business day. The accused will be informed of what charges are alleged. Most courts will automatically enter a plea of not guilty on the behalf of the accused. The accused will find out if the government is seeking any bail (even if bail was already set by a bail commissioner at a police station the night before). 

An accused will usually be given a copy of the Complaint, which is the document charging him or her with a crime. Often, the accused will also be furnished with a copy of a police report. Finally, the accused will be told the date of the pre trial conference, the next date the accused is due in court. 

Although it is always a good idea to contact a lawyer as early in the process as possible, in most non-serious cases, it is not imperative to have a lawyer at the arraignment. The court will generally allow one month from the arraignment to the pre trial conference, and in this time the client hires a lawyer. If an accused knows what lawyer he or she will hire, it is best to contact the lawyer before the arraignment, both for a determination of whether the lawyer will need to appear (such as whether bail is likely to be sought), and to give the lawyer an opportunity to suggest dates for the pre trial conference (courts will usually give a requested date). 

The pre trial conference date is usually scheduled for approximately four weeks from the arraignment.  

        B. Pre Trial Conference. On or before the date of the pre trial conference, an accused's lawyer will generally discuss the case with the assistant district attorney prosecuting the case. If appropriate (and of course with the consent of the accused), the lawyer will discuss plea options - options to end the case short of a trial, usually with some admission of wrongdoing, but frequently without a guilty verdict. If the case does look as if it will plea out, then that plea may go forward on that day. 

If the case looks like it is headed for a trial, then the lawyer will complete a Pre Trial Conference Report with the assistant district attorney, and file it with the court. The Pre Trial Conference Report is an agreement wherein the government agrees it will turn over all the information it has (including exculpatory evidence - evidence helpful to the accused) to the accused, and the accused agrees to turn over certain limited information to the government. Once the Pre Trial Conference Report is filed, the case is scheduled to come back to court for a compliance and election date.

The compliance and election date is usually scheduled for approximately four weeks from the pre trial conference date. 

        C. Compliance and Election Date. The compliance and election date is scheduled to accomplish two things: it is a date when all evidence (theoretically, at least) is due from the government to the accused (the compliance portion), and it is the date when 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.

        D. Trial. An accused is entitled to a trial by jury in all criminal cases in Massachusetts. In the alternative, an accused can opt to be tried by a judge alone. Whether an accused should opt for trial by judge or jury is one that should be discussed in detail with the lawyer. 

For cases in the District Court, a jury consists of six people, chosen at random from the community. The accused is entitled to assist in choosing that jury. The jury's verdict must be unanimous, and the government is required to prove guilty beyond a reasonable doubt. The jury is responsible for making all determinations of fact, including weighing the credibility of witnesses. The judge makes rulings on the law that applies to the case, and instructs the jury as to the law.
For cases before a judge alone (also known as a bench trial), the judge acts as both fact finder and determiner of the law. The Commonwealth is still obligated to prove guilt beyond a reasonable doubt. 

Most people are familiar with the actual mechanics of a trial. After choosing a jury (if the case is tried to a jury), the government makes an opening statement, indicating what the assistant district attorney expects the evidence to show. The accused's lawyer is then given the opportunity to make an opening statement, although he or she is not required to do so at all, or can choose to reserve the opening until the government rests its case. Since it has the burden of proof,  the government goes first, and calls each of its witnesses. The defense is entitled to cross examine each witness as he or she testifies. After the government has called its last witness it rests its case. It is then the accused's turn to put on a case, although he or she is not required to do so. After all of the witnesses testify, the defense goes first in closing argument. The government, since it bears the burden of proof, argues last. The judge then instructs the jury (if there is one), and the jury deliberates, eventually coming back with a verdict.

III.    Plea Bargaining 

There are a variety of reasons to seek to plea out a case. In some cases, the case is so strong, including a confession by the accused, leaving little alternative but to seek a plea. In other cases, however, there may be advantages to resolving a case short of trial because the deal is a good one that results in no criminal record. Different alternatives are discussed briefly below. 

In many plea negotiations, the government and the defendant are in agreement as to the bargained for outcome. In others, they can be opposed, and a good defense lawyer can convince a judge to grant the accused's request to resolve the case, even over the prosecutor's objection. Although plea options and negotiations should be discussed in detail with the defense lawyer, there are a number of different alternatives:

        A. Dismissal on Payment of Court Costs. This type of outcome is possible in some minor cases, such as certain cases charging driving with a suspended license, or bouncing a check. Upon payment of "court costs," the equivalent of a fine, the case is dismissed. The accused does not have to formally admit guilt. As noted, this may be available only in certain minor cases. As a general rule, the prosecution must agree. 

        B.  Pre Trial Probation. This is the equivalent of an outright admission without having to admit guilt, but the case is left open for a period of time (frequently six months) during which time the accused promises not to get into more trouble, and possibly to do something else, such as community service. Pre Trial Probation is available in only certain, usually minor, cases. As a general rule, the prosecution must agree.  

       C.    Continuance Without a Finding. This outcome, also referred to as a "CWOF," is widely available and widely used even in relatively more serious District Court cases. Through such a plea, the accused admits guilt or pleads no contest, and the court determines that there is sufficient evidence to support a guilty finding, but does not enter one. Instead, it continues the case without a finding for a period of time (usually six months to a year) during which time the accused is on probation. A court may order community service, classes or some other terms of probation as well. So long as the accused satisfies the probationary conditions, the case is dismissed without a conviction at the end of the probationary period. 

The major advantage of the CWOF is that there is no criminal conviction. Additionally, a defense lawyer can often obtain this result even over the prosecution's objection. The CWOF is widely available for those accused with no prior criminal record.  

        D. Guilty Finding.  This outcome obviously entails a conviction. However, in some cases, it may still make sense to plea a case out to a guilty finding, such as a more serious case where a jail sentence can be avoided and probation obtained instead.  

With offices in Sudbury and Framingham, Massachusetts criminal defense lawyer Mark W. Helwig serves clients throughout the Boston metro area and including the cities and towns of Acton, Amesbury, Amherst, Andover, Arlington, Ashburnham, Ashfield, Ashland, Athol, Attleborough, Barnstable, Barre, Bedford, Belmont, Berkley, Berlin, Bolton, Boston, Boston MetroWest, Boxborough, Boxford, Boylston, Bradford, Braintree, Burlington, Cambridge, Cape Cod, Carlisle, Charlemont, Charlestown, Charlton, Chelmsford, Chelsea, Clinton, Concord, Danvers, Dedham, Dudley, Duxbury, East Longmeadow, Essex, Fall River, Fitchburg, Foxboro, Framingham, Franklin, Freetown, Gardner, Gill, Gloucester, Granby, Groveland, Hadley, Hamilton, Hanover, Haverhill, Holbrook, Holliston, Holyoke, Hopkinton, Hubbardston, Hudson, Ipswich, Kingston, Lakeville, Lancaster, Lawrence, Leominster, Lexington Lincoln, Lowell, Ludlow, Lynn, Lynnfield, Malden, Marblehead, Marlborough, Marlboro, Marshfield, Maynard, Melrose, Methuen, Methuen, Middleborough, Middlefield, Milford, Milton, Monterey, Nantucket, Natick, Needham, New Bedford, Newbury, Newburyport, Newton, North Attleborough, North Brookfield, Northampton, Northborough, Northboro, North Shore, Paxton, Peabody, Pepperell, Pittsfield, Plymouth, Provincetown, Quincy, Reading, Richmond, Rockport, Rowe, Rowley, Salem, Saugus, Sherborn, Southbridge, South Shore, Spencer, Sterling, Stoughton, Stow, Sturbridge, Sudbury, Templeton, Topsfield, Townsend, Truro, Upton, Wakefield, Waltham, Watertown, Wayland, Wellesley, West Boylston, West Newbury Westborough, Westboro, Westford, Weston, Westport, Williamstown, Wilmington, Winchendon, Winchester, Woburn, Worcester and Yarmouth Massachusetts.

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Law Office of Mark W. Helwig
Massachusetts Criminal Defense Lawyer

323 Boston Post Road
Sudbury, MA 01776
Phone: (978) 261-3307
Nights and Weekends: (508) 400 – 7012
Toll Free: 1-866-720-6569
Fax: (978) 443-1633