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Current as of January 01, 2023 | Updated by FindLaw Staff
When a defendant has been arrested or is the subject of an arrest warrant for an offense enumerated in G.L. c. 276, § 58A, and the Commonwealth moves for pre-trial detention, the court must hold a hearing pursuant to § 58A(4). Among the offenses designated by the statute are felony offenses that have, “as an element of the offense the use, attempted use, or threatened use of physical force against the person of another,” violations of abuse prevention orders, misdemeanor or felony offenses involving domestic abuse, or misdemeanor or felony offenses alleged to have been committed while a c. 209A abuse prevention order was in effect.G.L. c. 276, § 58A(1).
The statute provides that the hearing shall be held immediately upon the person's first appearance before the court unless the Commonwealth or the defendant is granted a continuance. A continuance, not to exceed three business days, may be granted to the Commonwealth upon a finding of good cause. A continuance may be granted to the defendant, but for no more than seven days absent good cause.G.L. c. 276, § 58A(4). The defendant must be detained pending the hearing upon a finding of probable cause for one or more eligible offenses.
At the hearing, the rules of evidence do not apply, and § 58A provides that the judge “shall consider hearsay contained in a police report or the statement of a named victim or witness.” Prior to the defendant summonsing a named victim, or a member of the named victim's family, to appear as a witness at the hearing, the defendant must demonstrate to the court a good faith basis for the reasonable belief that the testimony would be material and relevant to support a conclusion that there are conditions of release that would reasonably assure the safety of any other person or the community.G.L. c. 276, § 58A(4).
If, after holding the hearing, the court determines that personal recognizance “will endanger the safety of any other person or the community,” the court may impose the least restrictive conditions that will reasonably assure the appearance of the defendant and the safety of any other person and the community.G.L. c. 276, § 58A(2). Such conditions must always include the requirement that the person not commit a federal, state, or local crime during the period of release. In domestic abuse cases, conditions of release should always include an order not to abuse the named victim, and to have no contact with the named victim, if the named victim requests such an order. If, however, the judge finds by clear and convincing evidence that no conditions of release will reasonably assure the safety of any other person or the community, a judge must order the defendant detained for a period not to exceed 120 days if heard in the District Court or Boston Municipal Court, and not to exceed 180 days if heard in the Superior Court, excluding any period of delay as defined by Mass. R. Crim. P. 36(b)(2) or continuance granted for good cause.G.L c. 276, § 58A(3). An order of detention pursuant to § 58A requires written findings of fact and a written statement of the reasons for the detention.G.L c. 276, § 58A(4). In cases involving violations of abuse prevention orders or domestic abuse, the judge must make a written determination regarding the factors listed in G.L c. 276, § 58A(5), regardless of whether detention or conditions are ordered. These findings are to be entered in the domestic violence record keeping system.
The hearing may be reopened at any time before trial upon a finding that: (1) information exists that was not known at the time of the hearing, or there has been a change in circumstances; and, (2) that such information or change in circumstances has a material bearing on the issue of whether there are conditions of release that will reasonably assure the safety of any other person or the community.G.L. c. 276, § 58A(4).
If a defendant is ordered released on conditions after a hearing on dangerousness under § 58A, that order may be revoked if any of the conditions are violated. The procedure for revocation and for custody during any continuance of the revocation hearing is provided in G.L. c. 276, § 58B.SeeGuideline 8:07 Bail Warnings: Revocation.
COMMENTARYWhere a criminal defendant has been arrested, or is subject to an outstanding arrest warrant, for violating an abuse prevention order or a misdemeanor or felony offense that involves domestic abuse, the defendant may be subject to pre-trial detention under G.L. c. 276, § 58A, even if the defendant is not held in custody following the arrest.Commonwealth v. Diggs, 475 Mass. 79, 85 (2016) (the phrase “held under arrest” within the meaning of G.L. c. 276, § 58A(4) refers to any person who has been arrested or for whom an arrest warrant has issued in connection with one of the enumerated offenses, even if the defendant is not being held under arrest at the time of his first appearance before the court). The intent of the Legislature is to protect the public from the potential harm posed by persons who have been arrested or are subject to arrest, and G.L. c. 276, § 58A applies equally to individuals who have been released on bail by a magistrate or for whom an arrest warrant has issued but has not been executed, as it does to individuals who remain in custody after being arrested. Diggs, 475 Mass. at 84.
The court must first make a determination that there is probable cause to believe that this defendant has committed a qualifying crime: either (1) one of the listed crimes in 1), (2) a “felony offense that has an element of the offense the use, attempted use, or threatened use of physical force” against another person, (the “force clause”); or (3) “arrested and charged with a misdemeanor or felony involving abuse as defined by [G.L. c.] 209A or while an [G.L. c. 209A) order of protection was in effect ․․․ against such person” (the “abuse clause”). G.L c. 276, c. 58A (1).
In determining whether a crime is eligible under the force clause, the analysis focuses on the elements of the offense.Scione v. Commonwealth, 481 Mass. 225, 228 (2019) (analysis is “a categorical approach, that is, we look at the elements of the offense, rather than the facts of or circumstances surrounding the alleged conduct”). In Commonwealth v. Vieira, the Supreme Judicial Court held that indecent assault and battery on a child under fourteen, in violation of G.L. c. 265, § 13B, does not qualify under the force clause. 483 Mass. 417, 427 (2019). Rape of a child under the age of 16 in violation of G.L. c. 265, § 23A does not qualify as a predicate offense under the force clause.Scione v. Commonwealth, 481 Mass. 225, 231 (2019) (“‘the use, attempted use or threatened use of physical force’ is not an element of § 23A). The facts may, however, qualify under the abuse clause.
In determining whether a crime is eligible under the abuse clause, “a judge may look beyond the elements of a crime to the surrounding circumstances of the alleged offense to determine whether it is a ‘misdemeanor or felony involving abuse.”’ Scione v. Commonwealth, 481 Mass. 225, 237 (2019) (applying a noncategorical approach to the abuse clause to allow for the examination of the underlying facts giving rise to the charge in question consistent with the intent of the Legislature's intent to “reduce, if not eliminate” the release of “dangerous arrestees” who pose a risk to domestic violence victims).
Note: the “residual clause” of § 58A--any felony offense that, by its nature, involves a substantial risk that physical force against the person of another may result” has been declared unconstitutional.Scione v. Commonwealth, 481 Mass. 225, 232 (2019).
A continuance of the hearing of up to three business days may be granted to the Commonwealth, but only upon a showing of good cause.Mendonza v. Commonwealth and Commonwealth v. Callender, 423 Mass. 771, 773 (1996). A judge granting a continuance to the Commonwealth “should then make a specific finding that such cause has been shown and what such cause is.” Id. at 792. The statute requires that the defendant be detained during a continuance, “upon a showing that there existed probable cause to arrest the person.” G.L. 276, § 58A(4). Both the Mendonza and Callender cases involve violation of an abuse prevention order (Mendonza included other criminal charges as well). In Mendonza, the Court rejected the defendant's numerous arguments and found that the challenged provisions of the preventive detention statute (G.L. c. 276, § 58A) pass constitutional muster on their face and as applied to the defendant. The statute has also been held to apply to juveniles.See Victor V. v. Commonwealth, 423 Mass. 793 (1996).
While the Court's language in Diggs suggests that a dangerousness hearing could not be held where a defendant was summonsed for an enumerated offense, that issue was not directly addressed.Compare Finn v. Commonwealth, 482 Mass. 817, 817 (2019) (the language of § 58A permits a Superior Court judge to conduct a dangerousness hearing upon a defendant's first appearance in that court, regardless of whether that appearance is pursuant to a summons or to an arrest warrant). Potentially, the mandatory nature of the statute--the Court shall hold a hearing where the defendant is charged with an eligible offense and the Commonwealth moves for detention--does not preclude the Court's discretion to hold such a hearing where the defendant otherwise qualifies under subsection (1) of the statute.See U.S. v. Megahed, 519 F.Supp.2d 1236, 1248 (M.D. Fla. 2007). Should the court decide to hold a dangerousness hearing in such circumstances, the hearing should be held on the defendant's first appearance before the court as it is unlikely that there would be good cause to justify a continuance of the hearing where the Commonwealth receives prior notice of summons arraignments.
The rules concerning admissibility of evidence in a criminal case do not apply, and G.L. c. 276, § 58A(4) mandates that the judge shall consider hearsay in police reports and statements of a named victim or witness. At the hearing, the defendant has the right to counsel, to testify, to present witnesses, to cross-examine witnesses who appear, and to present information. In order to summons the named victim or a member of the named victim's family, however, the defendant must demonstrate to the court a good faith basis for the reasonable belief that the testimony would be material and relevant to support a conclusion that there are conditions of release that would reasonably assure the safety of any other person or the community.G.L. c. 276, § 58A(4).
A finding that no conditions of release will reasonably assure the safety of any other individual or the community must be supported by clear and convincing evidence.G.L. c. 276, § 58A(4). Factors to consider are: the nature and seriousness of the danger posed to any person or the community that would result by the person's release; the nature and circumstances of the offense charged; the potential penalty the person faces; the person's family ties, employment record and history of mental illness; the person's reputation; the risk that the person will obstruct, or attempt to obstruct, justice or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror; the person's record of convictions, if any; any illegal drug distribution or present drug dependency, whether the person is on bail pending adjudication of a prior charge; whether the acts alleged involve domestic abuse, or violation of a temporary or permanent abuse prevention order; whether the person has any history of abuse prevention orders issued against them; whether the person is on probation, parole, or other release pending completion of sentence for any conviction and whether he is on release pending sentence or appeal for any conviction.G.L. c. 276, § 58A(5).
If either detention or pre-trial release subject to conditions is ordered pursuant to § 58A, then the clerk shall immediately notify the probation officer of the order, and the order shall be recorded in the defendant's criminal record as well as in the domestic violence record keeping system.G.L. c. 276, § 58A(8). With respect to defendants eighteen years of age or older who have been arrested or subject to an outstanding arrest warrant for violating an abuse prevention order, assault or assault and battery on an intimate partner (G.L. c. 265, § 13M), or strangulation (G.L. c. 265, § 15D), the judge must make a written determination regarding these factors even if the judge finds that the Commonwealth has not met its burden in proving the defendant's dangerousness. The judge's findings will be placed in the statewide domestic violence record keeping system, but not in the defendant's Criminal Offender Record Information (CORI) record. In either event, the clerk should ensure that a probation officer is provided with a copy of the judge's written findings pursuant to G.L. c. 276, § 58A. Criminal cases containing dangerousness findings pursuant to G.L. c. 276, § 58A, filed since August 8, 2014, are identified in the Court Activity Record Information (CARI) report in the “Linked Cases” field.
Cite this article: FindLaw.com - Massachusetts Guidelines for Judicial Practice Abuse Prevention Proceedings Guideline 8:06 - last updated January 01, 2023 | https://codes.findlaw.com/ma/guidelines-for-judicial-practice-abuse-prevention-proceedings/ma-r-abuse-prev-guideline-8-06/
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