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

4.4. PROBABLE CAUSE HEARING and GRAND JURY PRACTICE

After arraignment, you will have thirty days in which to indict the defendant or prepare for a probable cause hearing (unless all parties agreed at arraignment to a later date). Mass. Gen. Laws ch. 276, §§ 35, 38. Your decision whether to directly indict your defendant may be dictated by statutory constraints: you may simply run out of time. You may also wish to consider the advantages a probable cause hearing may offer in particular cases: testimony will be preserved under oath and may be admissible in future proceedings should the witness be unavailable. However, beware the fact that a hearing allows the defendant not only a thorough discovery of your case, but also the opportunity to develop testimony for impeachment purposes. You don’t “owe” the defendant this discovery opportunity: a defendant has no substantive right to a probable cause hearing. Klous v. Judges of the Municipal Court, 251 Mass. 292, 295-296 (1925); Lataille v. District Court of Eastern Hampden, 366 Mass. 525, 529-533 (1977). Choose carefully.

When conducting a PCH, and deciding whom to call, keep in mind:

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  The purpose of the preliminary hearing is to satisfy the examining magistrate that a crime has been committed and that the defendant was the likely perpetrator. A Juvenile v. Commonwealth, 375 Mass. 104, 106-107 (1978).
  

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  While the Commonwealth must observe the substantive rules of evidence and trial procedure, it “has no duty to present (the) entire case at the hearing ... but simply enough to allow a reliable determination of probable cause.” Commonwealth v. Look, 379 Mass. 893, 904 (1980).
  

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  A finding of no probable cause “is not conclusive as to the guilt or innocence of a party charged, and is not a bar to a subsequent indictment for the same offense.” Burke v. Commonwealth, 373 Mass. 157, 159 (1977).
  

4.5. NO DISMISSAL OVER COMMONWEALTH’S OBJECTION

Be prepared to oppose dismissal of a case at arraignment or pre-trial conference based on allegations that the victim “doesn’t want to go forward with the charges.” Defense counsel may move the court, or occasionally, a judge may inquire about a victim’s “status” or “desires” and try to dismiss on such a basis. Hold your ground.

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  Be prepared to make the following arguments in opposition to dismissal, and/or in opposition to dismissal via pretrial probation:
  

1) Separation of Powers gives the prosecutor exclusive power to prosecute

Article 30 creates a separation of powers among the branches of government essentially granting the prosecutor exclusive power to decide whether to prosecute a case. Commonwealth v. Pellegrini, 414 Mass. 402, 404-06 (1993); (citing Burlington v. District Attorney for the N. District, 381 Mass. 717, 721 (1980)).

2) The Power to Nolle Pros is exclusively the prosecutor’s power

…Pretrial dismissal, over the Commonwealth’s objection, of a valid complaint or indictment before a verdict, finding or plea, and without an evidentiary hearing basically quashes or enters a nolle prosequi of the complaint or indictment. See Commonwealth v. Gordon, 410 Mass. 498, 503 (1991). ... A decision to nolle pros a criminal case rests with the executive branch of government and, absent a legal basis, cannot be entered over the Commonwealth’s objection. Commonwealth v. Gordon, at 500.

3) There is no showing that the Defendant’s Ability to Obtain a Fair Trial has been prejudiced through one of the established exceptions

... In some instances a judge may properly dismiss an indictment over the objection of the prosecutor. ... This case does not fall within any of these exceptions, but rather is governed by the general rule that an indictment valid on its face should not be dismissed absent a showing that the defendant’s ability to obtain a fair trial is prejudiced. Commonwealth v. Freiberg, 405 Mass. 282, 300-301 (1989).

Commonwealth v. Pellegrini, 414 Mass. 402, 404-406 (1993).
The valid exceptions outlined in Pellegrini are:

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  double jeopardy
  
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  failure to disclose exculpatory evidence
  
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  improper presentation of evidence to the grand jury; and
  
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  insufficient evidence presented to the grand jury to justify arrest of the defendant
  

Exceptions do not include whether or not the victim, on that particular day, wishes to see the defendant criminally prosecuted.

4) The Proper Procedure for Dismissal has not been followed:

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  The defendant must file an affidavit in support of the dismissal, containing all the facts and all the law relied upon in justification of a dismissal.
  
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  The Commonwealth may file a counter affidavit
  
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  There shall be a hearing on the matters in dispute “unless the judge concludes that on the face of the affidavits ‘the interests of public justice’ require a dismissal.”’
  
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  The judge shall record the findings of fact and the reasons for his decision.
  
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  The Commonwealth has the right of appeal under Mass. Gen. Laws. ch. 278, § 28E.
  

Commonwealth v. Brandano, 359 Mass. 332, 337 (1971).
5) The Trial Court’s Guidelines for Abuse Prevention Proceedings dictate that “it is inappropriate for the court to dismiss the complaint because the court believes, as a matter of policy, that the case should not be prosecuted.”

Guideline No. 8:12, December 2000.

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  The prosecutor may have facts unknown to the judge
  

Thus, the law is clear, and the Guideline emphasizes that it is inappropriate for a judge, over the Commonwealth’s objection, to dismiss a criminal case because the judge has made a discretionary determination that the case should not be tried due to the alleged victim’s reluctance or otherwise. This is a decision which the law leaves to the prosecutor. Moreover, the prosecutor usually has facts which are often not known to the judge, including the defendant’s criminal record, past history of unprosecuted violence, mental status, indications that the defendant may be contemplating suicide or homicide, an opportunity to observe the victim's’ behavior over time, and knowledge about the presence of children in the home and any danger to them. Id.

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  Dismissal “in the interests of public justice” may not be based upon a witness’s refusal to testify
  

While in an unusual circumstance the court may dismiss a case “in the interests of public justice,” provided the procedure described in Commonwealth v. Brandano, 359 Mass. 332, 337 (1971) is followed, subsequent case law makes clear that such a dismissal may not be based upon one witness’s refusal to testify, unless the Commonwealth is willing to stipulate that it has no other evidence. Rosenberg v. Commonwealth, 372 Mass. 59, 63 (1977).

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  The victim is not a party in a criminal case.
  

While the phrase “the victim wants to drop the charges” is sometimes used in these cases, it is important to remember that the victim is not a party in a criminal case. A criminal prosecution is not intended to vindicate the interests of the victim, but rather, the interests of the public as a whole, as represented by the prosecutor. “In American jurisprudence … a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another.” Whitley v. Commonwealth, 369 Mass. 961, 962 (1975) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)).

Commentary following Guideline 8:12

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  Be prepared to argue against the court allowing the victim to enter into an accord and satisfaction agreement with the defendant, pursuant to Mass. Gen. Laws ch. 276, § 55:
  

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  Accord and satisfaction is an inappropriate vehicle to force settlement in a criminal abuse case: The accord and satisfaction is a statutory device employed in the courts for over one hundred years to permit an agreed-upon, civil resolution between the parties to minor assaults and other misdemeanors. Current law permits the use of accord and satisfaction agreements to dismiss a wide range of minor charges, including domestic violence cases. Massachusetts remains the only state in the country where this device is employed to dismiss criminal domestic violence cases over the Commonwealth’s objection.
  

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  In the past, accord and satisfaction resolutions have been recognized by the trial court administration as inappropriate: The Trial Court’s own internal guidelines state: “A case involving family violence should not be dismissed over the prosecution’s objection on an accord and satisfaction.” Administrative Office of the Trial Court, Abuse Prevention Guildelines, Guildeline 8:12, 1996. “[T]his accord and satisfaction provision makes no reference to whether the court can order such dismissal over the objection of the prosecution, and, generally, a case involving family violence should not be dismissed over the prosecution’s objection on an accord and satisfaction, for the reasons stated above.” Commentary Following Guideline 8:12.
  

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  While the SJC has ruled accord and satisfaction constitutional, the court must still be informed of what satisfaction has been received: In Commonwealth v. Guzman, 446 Mass. 344 (2006), the SJC recently ruled that the accord and satisfaction statute is constitutional and does not violate public policy. However, the court in exercising its discretion whether to dismiss a charge based upon an accord and satisfaction agreement must be informed what “satisfaction” has been received. There must be some credible evidence as to its nature. Id.
  

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  Every year for approximately the past five years, there have been bills filed before the legislature that would bar courts from applying an accord and satisfaction to domestic violence cases.
  

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  Be prepared to argue against the court continuing the case without a finding.
  

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  A judge may not continue a case without a finding, over the Commonwealth’s objection, unless doing so is “necessary.” “Necessary” is determined by Mass. R. Crim. P. 10, which governs requests for continuances. Commonwealth v. Taylor, 428 Mass. 623 (1998).
  

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  Be prepared to object (in writing) to defense counsel’s or the court’s oral motion to treat certain misdemeanors as civil offenses.
  

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  In 2005, “An Act Providing Counsel to Indigent Persons” was passed which rewrites Mass Gen. Laws ch. 277, § 70C to allow not just the DA, but defense counsel or judges on their own motion to seek civil treatment of misdemeanors except for certain enumerated exceptions unless the Commonwealth objects in writing stating the reasons for its objection.
  

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  With respect to the Commonwealth’s objections, remember that the power and discretion to prosecute a particular defendant is exclusively afforded to prosecutors. Commonwealth v. Chaney, 440 Mass. 568, 574 (2003). “Judicial review of decisions which are within the executive discretion of the [prosecutor] ‘would constitute an intolerable interference by the judiciary in the executive department of the government and would be in violation of Art. 30 of the Declaration of Rights.’” Shepard v. Attorney General, 409 Mass. 398, 401 (1991) (quoting Ames v. Attorney General, 332 Mass. 246, 253
  

(1955)).