probable cause hearing in Massachusetts

2016P. 3 (f), as appearing in 442 Mass. 1502 (2004). 14 The probable cause standard used at such a hearing is more demanding than “probable cause to arrest.” Myers v. Commonwealth, 363 Mass. 843, 849 (1973).

2016See Myers v. Commonwealth, 363 Mass. 843, 851-852 (1973) (“primary function of the probable cause hearing of screening out ‘an erroneous or improper prosecution,’ .. . can only be effectuated by an adversary hearing where the defendant is given a meaningful opportunity to challenge the credibility of the prosecution’s witnesses and to raise *490 any affirmative defenses he may have” [citation omitted]).

1982The judge, however, took the position that the defendant had been ordered to be in court that day and could not absent himself without leave of court; that there had been sufficient time to file a written motion for an alternative identification procedure; and that efforts to arrange such a procedure would delay the hearing and perhaps disrupt other cases to be heard that day. *237 The probable cause hearing was a critical stage of the proceedings which would require the defendant’s presence (see Commonwealth v. Britt, 362 Mass. 325, 330-331 [1972]; see now Mass.R.Crim.P. 18[a], 378 Mass. 887

1980See Commonwealth v. Britt, 362 Mass. 325, 330 (1972) (“Traditionally, irregularities in the probable cause hearing fur nished no ground for dismissal of the indictment”).

1997L. c. 211, § 3, for example, to review the manner in which a “bind-over hearing” was conducted, Corey v. Commonwealth, 364 Mass. 137, 138 (1973); the conduct of a probable cause hearing, Myers v. Commonwealth, 363 Mass. 843, 844 (1973); and an order to disclose alibi witnesses, Gilday v. Commonwealth, supra at 171.

1984The defendant relies on this court’s decision in Corey v. Commonwealth, 364 Mass. 137 (1973), in which we stated that “a District Court judge should announce, before the hearing commences, whether he is conducting a probable cause hearing or a full trial on the merits” (emphasis in original).

2016L. c. 276, § 38, “complete cross-examination and the . .. present[ation of] affirmative defenses [a]re crucial and necessary to effectuate a true probable cause standard,” Lataille, supra at 530 ; these functions, in turn, often are facilitated by material obtained through discovery.

2006Hampden, 366 Mass. 525 , 531 & n.6 (1974) (return of indictment is itself determination of probable cause and renders unnecessary preliminary hearing; “In the case before us, the probable cause hearing had not started before the indictment was returned. ...

2002Cf. Commonwealth v. Sineiro, 432 Mass. 735, 745 (2000) (“We hold, under the principles set forth in the Daye case, as further analyzed here, that a judge, who is warranted in concluding that a witness at a criminal trial is falsifying a lack of memory, [and recantation of prior testimony,] may admit in evidence for substantive consideration by the jury the witness’s prior [inconsistent] testimony at a probable cause hearing, so long as that testimony was that of the witness and was not coerced and the witness is present at trial for cross-examination”). 6 To be noted in this case, however, is

2001Compare Commonwealth v. Sineiro, 432 Mass. 735, 744-745 (2000) (where one of the victims at a probable cause hearing identified the defendant as the person who assaulted her but at trial disclaimed any memory of the defendant’s having done so, the judge properly ruled that the victim’s probable cause testimony could be admitted in evidence for substantive purposes, the court noting that probable cause testimony, as opposed to grand jury testimony, is inherently more trustworthy and that corroboration is not required).

2020Thus, with that understanding the Court makes such a request for the Respondent. [10] The SJC has ruled "that absent unusual circumstances, a probable cause hearing should commence no later than ten business days after a temporary commitment order is made under § 12 (e)." Bruno, 432 Mass. at 513 .

2019L. c. 123A, § 12 ( e ). "[A]bsent unusual circumstances, a probable cause hearing should commence no later than ten business days after a temporary commitment order is made under § 12 ( e )." Commonwealth v. Bruno , 432 Mass. 489 , 513, 735 N.E.2d 1222 (2000).

2025See Saferian, supra. Order denying motion for new trial affirmed.

1985While it might have been a vein worth mining for the defense, we are not prepared to say that either missing or passing up the opportunity fell “measurably below [what] might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2013A dismissal, of course, “is not a bar to a subsequent indictment for the same offence.” Burke v. Commonwealth, 373 Mass. 157, 159 (1977), quoting Commonwealth v. Hamilton, 129 Mass. 479, 481 (1880).

2000See also Commonwealth v. Ortiz, 393 Mass. 523, 534 (1984) (purpose of probable cause hearing is to screen out cases that should not go to trial); Juvenile v. Commonwealth, 375 Mass. 104, 106 (1978) (same); Burke v. Commonwealth, 373 Mass. 157, 159 (1977); Stefanik v. State Bd. of Parole, 372 Mass. 726, 731 (1977) (same).

1987Contrast Commonwealth v. Palmarin, 378 Mass. 474, 476-478 (1979); Commonwealth v. Morrison, 1 Mass. App. Ct. 632, 635-637 (1973).

1975The situ *210 ation is therefore much different from that in Commonwealth v. Morrison, 1 Mass. App. Ct. 632, 635-636 (1973), relied on by the defendant, where each defense witness at the trial in the Superior Court was cross-examined about his presence at the probable cause hearing in a District Court and about the fact that he had not testified in the latter court.

1995We have held that, at a probable cause hearing in a District Court to determine whether a criminal defendant should be held for trial, “the judge ‘should view the proceeding as if it were a trial, and should find probable cause only if the Commonwealth has presented sufficient evidence to send the case to a jury.’ ” Commonwealth v. Matthews, 406 Mass. 380, 388 (1990), quoting Commonwealth v. Ortiz, 393 Mass. 523 , 534 n.13 (1984).

1993A probable cause hearing provides an individual, juvenile or adult, see Commonwealth v. Ortiz, 393 Mass. 523, 535 (1984), with “collateral benefits with respect to impeachment, discovery, and possible dismissal of charges without a trial,” Lataille, supra at 529-530 , which are not present when a juvenile is indicted by a grand jury. 7 It cannot be doubted, however, that a grand jury indictment is a constitutionally proper means of commencing proceedings against an individual charged with violating G.

1992See Commonwealth v. Siegfriedt, supra at 429 (“fact that there may have been a more extensive cross-examination . . . does not undermine the reliability of the otherwise trustworthy, previously recorded testimony so as to preclude its admission”); *649 Commonwealth v. Trigones, 397 Mass. 633, 639 (1986) (prior testimony is sufficiently reliable even though defendant did not adequately pursue opportunity to cross-examine witness on bias); Commonwealth v. Mustone, 353 Mass. 490, 494 (1968) (“If [the defendants] failed to cross-examine any witness fully at the probable cause hearing, they necessa

1978While the transcript of a probable cause hearing could be helpful at trial to demonstrate inconsistencies in the testimony of witnesses, see Commonwealth v. Mustone, 353 Mass. 490 (1968), it would not be useful for appellate review since traditionally errors at a probable cause hearing would not void a subsequent indictment or conviction.

2015See Lester L., 445 Mass. at 255-256 , citing Commonwealth v. O’Dell, 392 Mass. 445, 450 (1984).

2002See Commonwealth v. O’Dell, 392 Mass. 445, 451 (1984) (“at a probable cause hearing the ‘examining magistrate should view the case as if it were a trial and he were required to rule on whether there is enough credible evidence to send the case to the jury,’ Myers v. Commonwealth, [ 363 Mass. 843 ,] 850 [1973], while the evidence before a grand jury will be considered to be legally sufficient if it only meets the less strict probable cause to arrest standard”).

2000In Commonwealth v. Fort, 33 Mass. App. Ct. 181, 185 (1992), the Appeals Court extended the principles in Commonwealth v. Daye, 393 Mass. 55 (1984), correctly in our view, to a witness’s prior inconsistent testimony at a probable cause hearing.

1993For the reasons discussed in Commonwealth v. Daye, 393 Mass. 55 (1984), and Commonwealth v. Fort, 33 Mass. App. Ct. 181 (1992), Debra’s testimony at the probable cause hearing and grand jury proceedings will be admissible for its probative value should the judge conclude that the conditions of the Daye decision have been met.

2013I write separately to note that the only reason why it is reasonable to give a prosecutor so much leeway to delay a probable cause hearing is because we have declared that probable cause at a probable cause hearing does not mean probable cause to believe that the defendant has committed a crime but instead means proof established by admissible evidence that is legally sufficient to establish guilt beyond a reasonable doubt. 2 If “probable cause” at a probable cause hearing meant what it means at a grand jury proceeding, i.e., whether there is “sufficient evidence to find probable cause for arr

2004Compare Commonwealth v. McGahee, 393 Mass. 743, 745-748 (1985), where the grand jury heard testimony that a witness had made a photographic identification of the accused but were not told that the witness has failed to identify the accused at a later probable cause hearing: the court held the omission did not impugn the indictment to require its dismissal.

2012To satisfy this “nexus” requirement, and thus the probable cause standard, the affidavit “must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises.” Commonwealth v. Donahue, 430 Mass. 710, 712 (2000).

2012Finally, “[a]ll reasonable inferences which may be drawn from the information in the affidavit may also be considered as to whether probable cause has been established.” Commonwealth v. Donahue, supra. The defendant argues, and the motion judge agreed, that the affidavit fails to meet the second part of the probable cause test, in that it does not establish that the items identified would probably be found in the residence at 3 Oakhurst Street in Dorchester.

2010We have held that, in a forfeiture proceeding, this burden is “similar to its burden in seeking an indictment and less than its burden at a probable cause hearing to determine whether someone should be held for trial.” Commonwealth v. Fourteen Thousand Two Hundred Dollars, supra at 9.

2006The Commonwealth’s burden is “similar to its burden in seeking an indictment and less than its burden at a probable cause hearing to determine whether someone should be held for trial.” Commonwealth v. Fourteen Thousand Two Hundred Dollars, 421 Mass. 1, 9 (1995).

2000Second, the judge concluded that the principles expressed in proposed rule 804 (a) (3) and (b) (1) should be adopted to permit introduction of her testimony at the probable cause hearing for substantive value. 5 We conclude that the first ground relied on by the judge, an application of the principles of Commonwealth v. Daye, supra, to the circumstances in this case, with certain modifications of those principles that we shall discuss, was a correct basis on which to admit Jane’s testimony at the probable cause hearing.

2000In Commonwealth v. Fort, 33 Mass. App. Ct. 181, 185 (1992), the Appeals Court extended the principles in Commonwealth v. Daye, 393 Mass. 55 (1984), correctly in our view, to a witness’s prior inconsistent testimony at a probable cause hearing.

1983We thus treat the claims seriatim, pausing only long enough to elaborate on the defendant’s claim that the reasoning of Moore v. Illinois, 434 U.S. 220 (1977), required suppression of the identification made of him on the occasion of the probable cause hearing. 1.

1978As I have mentioned earlier, of necessity there will be these viewings in the course of probable cause hearings, and I find nothing improper and suggestive in what was done in this case, and therefore, insofar as any in-court identification, as it relates to the probable cause hearing relating to Mrs. Condo and Mrs. McLellan, I’m going to deny the defendant’s motion to suppress and save his exception.” 4 The Supreme Court commented in a footnote in Moore accompanying the quoted passage that, had the petitioner been represented, counsel could have requested that a lineup be arranged, that the p

2024See Commonwealth v. Chesko, 486 Mass. 314 , 322 n.9 (2020) ("we need not determine whether, as the defendant argues, the Commonwealth's application for the CSLI failed to meet . . . the probable cause standard set forth in [Augustine, 467 Mass. at 255 ]"). 17In his motions to suppress, the defendant did not seek to suppress the ping data.

2016The probable cause standard applicable to CSLI is “ ‘probable cause to believe that a particularly described offense has been .. . committed’ and that the CSLI sought will ‘produce evidence of such offense or will aid in the apprehension of a person who the applicant has probable cause to believe has committed . . . such offense.’ ” Commonwealth v. Augustine, 467 Mass. 230 , 236 n.15 (2014) (Augustine I), quoting Commonwealth v. Connolly, 454 Mass. 808, 825 (2009). 9 In his reply brief, the defendant asserts that the “clairvoyance exception” to the general rule of retroactivity should apply in

2020The juvenile maintained that a violation must be proved by a preponderance of the evidence, and that the hearing must comply with the evidentiary requirements of Durling, 407 Mass. at 113, 118 .

2010Even assuming that severance may be required in some circumstances at probation revocation proceedings, which are not part of the criminal process, Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Commonwealth v. Durling, 407 Mass. 108, 112 (1990), a question we do not decide, Elysee’s argument is unavailing.

2018See Myers v. Commonwealth , 363 Mass. 843 , 850 (1973) ; Commonwealth v. McCarthy , 385 Mass. 160 , 162 n.5 (1982) ; Paquette , supra .

2013Because a prosecutor must meet this “directed verdict” standard, id., and because he must do so by presenting evidence that would be admissible at trial rather than reliable hearsay, id. at 849 n.6; see Paquette v. Commonwealth, 440 Mass. 121, 132 (2003), cert, denied, 540 U.S. 1150 (2004), I agree with the court that the obligation in § 38 to conduct a probable cause hearing “ ‘as soon as may be’ must be interpreted in a manner that affords the Commonwealth enough time reasonably to marshal and present the quantity and quality of evidence that is necessary to meet the probable cause hearing’s

2018Commonwealth v. O'Day , 440 Mass. 296 , 297, 798 N.E.2d 275 (2003), quoting from Commonwealth v. Villella , 39 Mass. App. Ct. 426 , 428, 657 N.E.2d 237 (1995).

2007See Commonwealth v. O’Day, 440 Mass. 296, 301 (2003) (“[independent police corroboration of an informant’s tip can compensate for deficiencies in either or both [.Aguilar-Spinelli] prongs to satisfy the probable cause requirement”); Commonwealth v. Mebane, 33 Mass. App. Ct. 941, 942 (1992) (same); Commonwealth v. Richardson, 37 Mass. App. Ct. 482, 485-486 (1994); Commonwealth v. Russell, 46 Mass. App. Ct. 513, 517-519 (1999) (corroboration by other confidential informants).

2018See Myers v. Commonwealth , 363 Mass. 843 , 850 (1973) ; Commonwealth v. McCarthy , 385 Mass. 160 , 162 n.5 (1982) ; Paquette , supra .

1995Yet the court goes on to adopt the rule for indictments, which incorporates a probable cause standard, Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), that hearsay evidence may be used at indictment proceedings.

2010Even assuming that severance may be required in some circumstances at probation revocation proceedings, which are not part of the criminal process, Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Commonwealth v. Durling, 407 Mass. 108, 112 (1990), a question we do not decide, Elysee’s argument is unavailing.

1977Gagnon v. Scarpelli, supra. Other courts have considered whether a probable cause hearing for new criminal charges may simultaneously serve as the Morrissey prerevocation hearing.