Massachusetts General Laws

Mass. Gen. Laws ch. 276, § 38 (2026)

Examination; assistance of counsel; waiver of indictment

✓ current as of July 2026

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Section 38. The court or justice before whom a person is taken upon a charge of crime shall, as soon as may be, examine on oath the complainant and the witnesses for the prosecution, in the presence of the defendant, relative to any material matter connected with such charge. After the testimony to support the prosecution, the witnesses for the prisoner, if any, shall be examined on oath, and he may be assisted by counsel in such examination and in the cross examination of the witnesses in support of the prosecution. Nothing contained herein shall be construed to prohibit the enforcement of the waiver provisions of Rule 3 of the Massachusetts Rules of Criminal Procedure. A defendant charged with an offense as to which he has the right to be proceeded against by indictment may elect a probable cause hearing in accordance with Rule 3 of the Massachusetts Rules of Criminal Procedure, but in such event shall be deemed to have waived his right to be proceeded against by indictment.

Notes of Decisions

Cited in 26 cases, 1973–2016 · leading case: Myers v. Commonwealth, 298 N.E.2d 819 (Mass. 1973).

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Myers v. Commonwealth, 298 N.E.2d 819 (Mass. 1973). · cites it 12× “The petitioner asks us to vacate a finding of probable cause in the Municipal Court of the Roxbury District and remand the case to that court for a new probable cause hearing consistent with the requirements of G.L.c. 276, § 38, which he alleges were violated in his initial…”

Commonwealth v. Perkins, 981 N.E.2d 630 (Mass. 2013). · cites it 6× “This case raises the question whether a defendant who is charged initially by complaint with murder in the first degree is entitled to a preliminary or probable cause hearing in the District Court 1 pursuant to the provisions of G. L. c. 276, § 38 (§ 38), and, if so, when the…”

Commonwealth v. Ortiz, 471 N.E.2d 1321 (Mass. 1984). · cites it 2× “362, 366-367 (1925); G. L. c. 276, § 38. In Mustone we reasoned that the probable cause hearing in a District Court does not present issues which are substantially different from those that arise at trial.”

Commonwealth v. Teixeira / Commonwealth v. Meade, 475 Mass. 482 (Mass. 2016). · cites it 4× “Pursuant to G. L. c. 276, § 38, probable cause hearings were scheduled for each defendant to determine whether there was sufficient evidence to bind them over to the Superior Court for trial.”

Commonwealth v. O'DELL, 466 N.E.2d 828 (Mass. 1984). “However, in Myers, supra at 856 , we were interpreting G. L. c. 276, § 38, and we concluded that that statute mandated that probable cause hearings in a District Court be conducted as trials.”

Commonwealth v. Melendez, 551 N.E.2d 514 (Mass. 1990). · cites it 2× “Each Ortiz then would have been arraigned promptly, see G.L.c. 276, § 38 (1988 ed.) (if arrested without a warrant, arrestee must be brought before a judge as soon as possible after arrest); District Court Standards of Judicial Practice, The Complaint Procedure, Standard 2:00 &…”

Eagle-Tribune Publ'g Co. v. Clerk-Magistrate of the Lawrence Div. of the Dist. Court Dep't, 35 Media L. Rep. (BNA) 1585 (Mass. 2007). · cites it 2× “218, § 35A, but rather, a probable cause hearing under G. L. c. 276, § 38. 13 See standards 3:00-3:04 of the Standards of Judicial Practice: Trials and Probable Cause Hearings (1981) *654 (Probable Cause Standards).”

Commonwealth v. Bruno, 735 N.E.2d 1222 (Mass. 2000). “*509 The judge ruled that the Commonwealth’s burden of proof at the probable cause hearing under § 12 (c) is the same as that required for a probable cause, or bind-over, hearing held pursuant to G.”

Paquette v. Commonwealth, 795 N.E.2d 521 (Mass. 2003). “See G. L. c. 276, § 38. In contrast, a bail revocation hearing “shall be held upon the person’s first appearance before the court before which the person is charged with committing an offense while on release pending adjudication of a prior charge.”

Lataille v. Dist. Court of E. Hampden, 320 N.E.2d 877 (Mass. 1974). · cites it 2× “G. L. c. 276, § 38. The issue in this case is whether he is entitled to a probable cause hearing where there has been presentment of an indictment.”

Commonwealth v. Reese, 781 N.E.2d 1225 (Mass. 2003). “” Bind-over hearings are subject to the procedural requirements of G. L. c. 276, § 38: “The court or justice before whom a person is taken upon a charge of crime shall, as soon as may be, examine on oath the complainant and the witnesses for the prosecution, in the presence of…”

Commonwealth v. Look, 402 N.E.2d 470 (Mass. 1980). “This is because the *904 accused, before being bound over to the grand jury or tried in a District Court, is entitled under G. L. c. 276, § 38, to a preliminary determination that “the Commonwealth has sufficient competent legal evidence to justify .”

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