Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

4.2. THE CHARGING DECISION

4.2.1.Scrutinize the complaint for errors.

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  Check for spelling errors, typos, or missing information.
  
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  Check the statute of limitations (see section 1.6.2).
  
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  Review the elements and citations of the statutes (see section 1.5).
  

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  Where pertinent, make sure the defendant has been charged as a repeat offender (enhanced penalties for second and subsequent offenders only take effect if the defendant is so charged).
  

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  If applicable, see that the victim’s present address is not listed.
  

4.2.2.Check for the defendant’s status as a juvenile or potential “youthful offender.”

You must be familiar with the 1996 legislation reforming the Juvenile Justice System. Prior to this reform, persons under the age of seventeen were adjudicated in the juvenile system, unless the Commonwealth initiated a transfer hearing to request the matter be prosecuted in criminal court. The transfer hearing considered a juvenile’s dangerousness and amenability to rehabilitation. A juvenile retained in the juvenile system and convicted of murder was released from DYS at the age of 21. A statute effective Jan. 1, 1992 imposed a 15-20 year prison term for a first degree murder conviction and a 10-15 year term for second degree murder, with a commitment to DYS until the offender turned 21, at which time he was turned over to the Dept. of Corrections to serve the remainder of the sentence in state prison.
The 1996 legislation “The Violent Juvenile Offenders Act,” was enacted to ensure that violent juvenile offenders be tried as adults. The act divides juvenile offenders into two classes: those whose offenses or criminal history are deemed serious enough to qualify them for the harsher treatment formerly reserved for adults, and those facing less serious charges who continue to be treated as “delinquent children” deserving of the traditional protections (such as confidentiality) and more lenient treatment alternatives accorded to children.
The act gives prosecutors broad discretion to proceed against a juvenile with either a delinquency complaint or an indictment, pursuant to the statutes constraints regarding the juvenile’s age and the nature of the offenses alleged. Absent an error of law, a judge has no power to dismiss an indictment brought under the statute.


The prosecutor may directly indict as a youthful offender:

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  any offense punishable for adults by imprisonment in the state prison (felonies)
  
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  allegedly committed by a juvenile over fourteen but not yet seventeen
  
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  who has
  

a) previously been committed to DYS or

b) committed an offense which involves the infliction or threat of serious bodily harm in violation of law or
c) been charged with a mandatory sentence firearm offense (c.269 s.10 (c) or (d) or c. 269 s.10E)

The defendant need not previously have been adjudicated a youthful offender to be indicted.

All cases of murder allegedly committed by a person of the age of fourteen or older (together with those charges which may be joined) are to be removed from juvenile court jurisdiction to the Superior Court. Mass. Gen. Laws ch. 119, § 74. The penalty remains the same as for those older than seventeen, but those convicted who are not yet seventeen are to be held in a “youthful offender” unit until age seventeen. (Effective July 27, 1996.)
Transfer hearings are eliminated in all delinquency matters (considerations of dangerousness and amenability to rehabilitation are reserved for the sentencing phase of trial). (Effective Oct. 1, 1996.)
Trial de novo is eliminated in all delinquency matters. All juvenile courts are empowered to conduct jury trials. Trials upon complaints are to be by a jury of six, and, upon indictment, by a jury of twelve. (Effective Oct. 1, 1996.)
If the District Attorney proceeds by complaint, the child is treated as a delinquent. Where the juvenile court has adjudicated a “delinquent child”, it may:

1. 
   place the case on file;
   
2. 
   place the child in the care of a probation officer with appropriate terms and conditions; or
   
3. 
   commit the child to the custody of DYS.
   

If probation or commitment is ordered, the term must end when the juvenile attains age eighteen, or, if the adjudication was after age eighteen, then to age nineteen. Mass. Gen. Laws. ch. 119, § 58.

If the District Attorney proceeds by indictment, the child is treated as a youthful offender. Indictments for the youthful offenders’ offenses are to be “brought in accordance with the usual course and manner of criminal proceedings” Mass. Gen. Laws ch. 119, § 54. The offenses are then tried in the juvenile court.

Youthful offenders may be sentenced either to immediate “adult” commitments of the same duration as offenders who had reached the age of seventeen at the time of offense, or to DYS commitments (to age twenty-one) with additional “adult” commitment suspended for any number of years probation from and after, or, to straight DYS commitments to age twenty one. (DYS maintains the power to discharge or parole these youthful offenders before age twenty-one to the supervision of juvenile court probation departments.) In determining which of these sentences to impose, the Juvenile Court is to be guided by a sentencing recommendation hearing, to examine which sentence will best protect the present and long-term public safety.
IN SUMMARY: check the date of the offense and the age of the offender at the time of the offense and at the time of apprehension:
If the offenses were committed after Oct. 1, 1996 (or for murder, after July 27,

1996), and:

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  the offender is younger than 14: juvenile proceeding.
  
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  the offender has attained 14 years, but is not yet 17: juvenile status, or if the three criteria are met (above) and District Attorney chooses to indict, youthful offender.
  
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  the offender committed the offense before age 17, but was not apprehended until between 17 and 18: may be commenced “as if he had not attained his seventeenth birthday.”
  
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  the offender committed the act before age 17, but was not apprehended until after reaching 18: juvenile court shall determine whether the person should be discharged or should face charges in adult court.
  
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  the case commenced before the offender reached age 17, but is not yet resolved: juvenile court jurisdiction continues to age 19 for trials and commitments in delinquency cases, and to age 21 in youthful offender indictments
  

4.2.3.Charge all Prior Violence Within the Statute of Limitation

If permitted under the statute of limitations, consider filing additional charges of any prior violence by the defendant against this victim. This will preclude the necessity of arguing admissibility on other grounds (as well as provide additional ammunition for plea negotiations and increased sentencing options).