Police: Most criminal prosecutions begin with a 911 emergency call. Police respond to the scene of the crime, investigate, and prepare a report of the incident. Based on their investigation, the police may arrest the offender if his whereabouts are known. An arrest warrant may be issued for offenders who cannot be located.
Prosecutors and the Grand Jury: Sometimes crimes are reported directly to prosecutor’s offices, or the prosecutor’s office independently begins a criminal investigation. When this happens, the prosecutor’s office may ask the police to seek criminal charges or they will conduct a grand jury investigation.. The grand jury is comprised of 23 randomly selected members of the community. They hear testimony of witnesses outside the presence of a judge, the offender or defense attorney. Their purpose is to determine whether there is a reasonable cause to believe that a particular person committed a particular crime. If the Grand Jury finds such reasonable cause, they issue indictments, which are formal criminal charges.
Civilian Complaints: The best course of action is for a victim to notify police when a crime is committed. However, a civilian may also seek a criminal complaint themselves in the district court where the crime occurred. A clerk in the courthouse will review the application and may schedule a hearing. If a complaint is issued, the prosecutor’s office will begin handling the case.
Most criminal prosecutions begin with arraignment. At arraignment, the offender, now called the defendant, is formally notified of the charges against him and enters a plea (at this stage the plea is routinely “not guilty” even if the defendant has overwhelming evidence against him). The defendant will also be assigned a lawyer if he does not already have one. In addition, conditions of release, called bail, are set.
Bail: The purpose of bail is simply to ensure that the defendant will return to court to answer to the charges. It is not intended to be a punishment since the defendant is presumed innocent until proved guilty. In Massachusetts, a criminal defendant has a presumptive right to be released during a criminal case, whether by posting bail (an amount of money ordered by the judge) or simply by promising to return to court ( “release on his own recognizance”).
In deciding whether to set bail, and the amount of bail, the judge may consider many factors including, the nature and circumstances of the offense; the potential penalty; the defendant’s family and community ties; employment record; prior convictions; present drug dependency; use of an alias; whether the offense involves violence on an intimate partner, family or household member; whether the offense involves violation of a restraining order; and whether he is already on probation or parole.
If the judge sets bail, and the offender pays it, he will be released while the case proceeds. If he cannot pay the bail, he will remain in custody in jail until he can pay the bail or the case is resolved. If he does not return to court while released on bail, he may forfeit the bail money and be subject to arrest. If the defendant is released on bail and violates any of the conditions of his release, such as by committing a new offense or contacting the victim in violation of a stay-away order, the defendant’s bail can be revoked and he can be held without bail for up to sixty days.
A defendant may only be held in custody without bail if he is charged with murder, is already on probation, or the court decides to hold the offender in pre-trial detention after finding him to be dangerous.
Pre-Trial Detention: Since the purpose of bail is to insure a defendant’s return to court, a judge generally may not consider the defendant’s dangerousness or a victim’s fear of the defendant in setting bail. In cases involving the use of force, the prosecutor may request that the defendant be held in custody without bail pending the outcome of the case. Prosecutors frequently seek pre-trial detention in domestic violence cases to ensure victim safety, but it may be used in other cases as well.
Location: Cases are usually filed in the court near the location of the crime. The courts in Massachusetts are organized by county. Each county has several local District Courts and one or two Superior Courts.
District Court or Superior Court? Most criminal cases are misdemeanors (legally less serious crimes) and are prosecuted in the local District Court, where the maximum sentence of imprisonment is two and one half years in the house of correction (i.e., county jail). Cases prosecuted in District Court are generally resolved more quickly than in Superior Court. More serious crimes, called felonies, are prosecuted in Superior Court where punishments are more severe and include state prison. Some crimes, such as murder, rape, burglary, arson and kidnapping, may only be prosecuted in Superior Court.
After Arraignment and Bail, the prosecutor and the defense lawyer are required to exchange relevant information. This stage is called “discovery”. The prosecutor must disclose to the defense attorney statements of witnesses, police reports, scientific tests, and any evidence that may support the defendant’s claim that s/he did not commit the crime.
The prosecutor is only required to turn over information that is within its control. Police officers are considered agents of the prosecution, so anything in the possession of the police, including an officer’s personal notes about the case, is considered to be within the prosecutor’s control. Since civilians, medical providers and others are not considered agents of the prosecution, anything they have is not considered to be within the prosecutor’s control.
The defendant must disclose to the prosecution statements of witnesses, scientific tests and other evidence the defendant intends to use at trial. However, the defendant does not have an obligation to disclose information to the prosecution that tends to show that he committed the crime.
If the prosecutor and defendant disagree about what information should be disclosed, they file “motions” with the court. The defendant may also file a “motion to suppress evidence” which seeks to prevent the prosecutor from using certain evidence at trial that the defendant believes was obtained illegally. The lawyers argue the motion before the judge, and the judge makes a decision. Sometimes the judge’s decision may be appealed. See Appeals.
Once the discovery and motion phase is complete, a prosecution will end in one of several ways:
Guilty plea: Most cases that result in conviction end in a guilty plea. A guilty plea is a court proceeding in which the defendant admits guilt and accepts punishment. Many defendants choose to plead guilty in the hope of receiving a more lenient sentence than they would get after a trial. A “plea bargain” is an agreement between the prosecutor and the defendant about what the sentence should be. In coming to this agreement, both sides weigh the strength of the evidence, and the risks and benefits of going to trial. The prosecutor will consider a number of factors in making a sentence recommendation, including the victim’s wishes. The judge must approve the “plea bargain” before accepting it.
In Massachusetts, guilty pleas may be offered by the defendant without the agreement of the prosecutor. The prosecutor cannot prevent the defendant from pleading guilty or compel the judge to impose a particular sentence. The prosecutor does, however, have an opportunity to make a sentence recommendation.
Continuance Without a Finding: In District Court, a defendant may request that his case be “continued without a finding.” A continuance without a finding, or “CWOF,” as it is commonly known, is intended for those with minimal or no criminal records. As a condition of the CWOF, the judge will typically order the defendant to be on probation with certain conditions (e.g., to stay away from the victim, pay restitution, attend counseling or other court-based programs, or complete community service). At the succesful conclusion of the probation period, the defendant will not have a conviction on his record.
Trial: Rather than plead guilty, the defendant may choose a trial. He may choose a trial by jury or a “bench” trial. In a bench trial, the judge decides whether the defendant is guilty. Most defendants choose jury trials. In District Court, there are six jurors; in Superior Court, there are twelve jurors.
Once the jury is selected, the prosecutor makes an opening statement. The defense lawyer may then make an opening statement, too, but this is not required. The prosecutor begins by calling witnesses. The prosecutor questions the witnesses first, and then the defense attorney cross-examines them.
The defense lawyer may call witnesses, or call the defendant to testify, but he is not required to put on any evidence at all, and the defendant cannot be forced to testify. The defendant has no obligation to prove his innocence. It is entirely the Commonwealth’s burden to prove him guilty “beyond a reasonable doubt”. At the end of all the evidence, the defendant and prosecutor make closing arguments. The verdict of the jury must be unanimous. If the defendant is found guilty of any charge, the prosecutor asks the court to sentence the defendant, and both the prosecutor and defense lawyer make their recommendations. The victim is entitled to make a Victim Impact Statement to provide the judge with information relative to the physical, emotional, and financial impact of the crime. For further discussion of sentencing and punishment, click Sentence and Punishment and Victim Impact Statement.
Dismissal: Some cases result in outright dismissal, either because of a motion decided in favor of the defendant, or a decision by the prosecutor that there is insufficient evidence to prove the charge beyond a reasonable doubt at trial. Sometimes a prosecutor will dismiss one or more charges if the defendant agrees to plead guilty to other charges, or if the defendant agrees to pay fines or restitution. Many cases are dismissed because, on the date of trial, witnesses do not appear and the prosecutor cannot prove the case without their testimony.
Once a defendant is convicted, either by pleading guilty or after a trial, the judge usually has broad discretion in imposing a sentence. In determining the sentence, the judge will consider the circumstances of the crime, the defendant’s criminal history, the impact of the crime on the victim, and the recommendations of the prosecutor and the defense attorney. To learn more about victim impact statements, click on Role of the Victim and Victim Rights. The following are the types of sentences that may be imposed.
Imprisonment. Massachusetts has two types of correctional facilities: the county houses of correction and the state prison system. Serious crimes, called felonies, are usually punishable by state prison sentences. Generally speaking, time served in state prison is considered more difficult. Less serious crimes are usually handled in the District Court, where the maximum sentence is two and one half years in the house of correctionor jail. The District Court cannot sentence an offender to state prison.
Suspended Sentence. A suspended sentence is a jail sentence where the defendant is not incarcerated. Instead, for a designated period of time, which can be as long as ten years, the defendant is placed on probation and must comply with conditions ordered by the judge. If the defendant fails to obey the conditions or commits a new crime, the judge imposes the sentence and the defendant goes to jail.
Split Sentence. A split sentence is a sentence that involves some incarceration and some probation. For example, a sentence of “six months in the house of correction, thirty days to serve and the balance suspended for two years” means that the defendant would serve thirty days in the house of correction, followed by two years of probation. If, at the end of that period, the defendant has successfully completed probation, the defendant would be deemed to have completed his sentence. If the defendant violated probation during that period, the judge would impose the balance of the sentence, five months in the house of correction.
Probation. A defendant may be sentenced to probation alone, following a period of incarceration, or as part of a suspended sentence, continuance without a finding. During the period of probation, the defendant must report to the probation department regularly. The probation officer will ensure that the defendant is obeying the conditions that the judge ordered.
In crimes involving victims, common probation conditions a judge may order include having the defendant stay away from the victim, stay away from the neighborhood where the crime occurred, attend alcohol and/or drug treatment programs, fatherhood programs, court-certified batterers’ intervention programs, and/or pay restitution, fines or complete community service. The number and types of conditions ordered are entirely within the judge’s discretion, although the prosecutor and defense attorney can make recommendations.
A defendant who is convicted after trial may appeal his conviction, first to the Appeals Court and then to the Supreme Judicial Court. A defendant must have some plausible claim that there was a legal error made during his trial. Mere disagreement with the verdict is not enough to succeed on an appeal. If, after a hearing, the defendant wins the appeal, usually the case returns to the trial court for a new trial.
If a defendant is acquitted after trial, the prosecutor has no right of appeal. The prosecutor can, however, appeal a judge’s dismissal of a case or a judge’s suppression of evidence.
A defendant may also appeal the length of his sentence. However, the judges hearing the appeal may either reduce or increase the defendant’s sentence.
Many defendants are sentenced to probation or are released on parole following a period of incarceration.
Probation is a period in which a defendant is not incarcerated, but is under the supervision of the court. Defendants must not commit additional crimes while on probation and are often ordered to undergo counseling, participate in appropriate programs such as parenting classes or a certified batterer’s intervention program. A defendant on probation is assigned a probation officer who is responsible for ensuring that he is obeying the conditions of his probation. Victims are entitled to know the terms and conditions of a defendant’s probation.
Parole is the early release of an incarcerated defendant. Defendants generally become “parole eligible” after serving the minimum term of their sentence. If eligible, the Parole Board holds a hearing to determine whether the defendant should be released. The victim has the right to testify at this hearing. If the defendant is released, a parole officer is assigned to monitor his activities. If the defendant violates parole, the defendant may be returned to the correctional facility to serve the remainder of their sentence.
Crime victims have a right to be notified whenever a defendant is released from a correctional facility or transferred to a minimum security facility. For further information about offender release notification and the rights of victims, click Victim Rights. Victims should obtain the names and telephone numbers of the defendant’s probation or parole officer to understand the conditions of probation or parole and to report any violations.
The information in this website does not constitute legal advice. Merely viewing the site is not intended to establish an attorney-client relationship. You should consult an attorney to fully understand your rights. For a preliminary case evaluation at no cost, please click here.
