Cambridge Dangerousness Hearings Lawyer

Despite the constitutional proclamation that a citizen accused of a crime is presumed innocent unless proven guilty before a jury of his peers, Massachusetts prosecutors may move the court, under G.L. c. 276, §58A (hereinafter “58A”), to detain the accused before his trial, in the county jail, for up to 90 days as a dangerous person. The District Attorney’s Office usually notifies the accused and/or his attorney at the arraignment of its intention to seek pre-trial detention.

Aside from the obvious danger, distress and hardship, pre-trial incarceration frustrates the accused’s ability to assist his criminal defense lawyer with his defense. The days immediately following a charge are, typically, the most important for the defense lawyer and the accused. It is then, while the accused vividly recalls the events leading to his arrest, that he should be spending hours in the office of his attorney going over the details of his case, providing contact information for potentially critical witnesses, gathering evidence, and visiting the scene of the alleged crime with his attorney. Securing the accused’s pre-trial liberty is, therefore, essential.

Despite the peril within which a dangerousness hearing places the accused, it provides an experienced lawyer with a rare opportunity to evaluate the strength of the prosecution’s case and the credibility of its witnesses. Because the accused’s liberty is at stake, defense counsel is allowed wide latitude to cross-examine the Commonwealth’s witnesses. From this cross-examination, defense counsel may be able to develop inconsistencies between the victim’s statements to the police, his or her testimony on direct examination, and his or her testimony in response to cross-examination. Should the case proceed to trial, such inconsistencies could prove critical to the defense.

Given the importance of the outcome of a dangerousness hearing, the accused and/or his family should retain a lawyer with the necessary experience, skill and aggressiveness to fight pre-trial detention. Attorney Mahoney has successfully defended numerous individuals at pre-trial dangerousness hearings.

Below, please find an outline of the rules and procedures governing Dangerousness Hearings.

Crimes for Which D.A. can move for Pre-Trial Detention

While a 58A is commonly associated with domestic abuse cases, a prosecutor can ask a court to detain a citizen if he is accused of:

A felony involving “the use, attempted use or threatened use of physical force against the person of another”;
A felony involving a “substantial risk” that physical force against another may result (i.e., burglary, arson) – even if no person has actually been placed at risk of injury;
Violating a restraining order;
A misdemeanor or felony involving “abuse” as defined in G.L. c. 209A;
A drug offense which has a mandatory minimum sentence of three years or more; and,
A third or subsequent conviction for motor vehicle offenses (usually drunk driving offenses).

The Accused is Entitled to a Hearing

Before the court can detain the accused at the request of the prosecutor, it must hold a hearing. The hearing should be held on the day the accused is first brought to court (usually for arraignment). However, the prosecutor may petition the court to continue, for up to three business days, the hearing. To obtain the continuance, the prosecutor must demonstrate “good cause” and that there exists probable cause to believe the accused committed the offense.

The Hearing

At the hearing, the accused has the right to be represented by a lawyer, to cross-examine the prosecutor’s witnesses, to call witnesses on his own behalf, and to introduce any other information relevant to the issue of dangerousness. The hearing itself is almost like a mini trial, with the judge making the rulings of law and finding the facts. Nevertheless, it represents an unparalleled opportunity for a defense attorney to learn much about the quantity and quality of the evidence that the prosecutor is going to be able to marshal against the accused at trial. In fact, a skilled defense lawyer will recognize that “the trial starts today,” and use the hearing to undermine the testimony of the prosecutor’s witnesses for later use at the trial. Unfortunately, the rules of evidence do not apply at the hearings and the courts have been known to permit the prosecutor to introduce hearsay evidence.

Factors Judge Considers

According to 58A, a judge is to consider the following factors in deciding whether to grant the prosecutor’s motion to detain the accused:

The danger, if any, posed by the accused to a person or the community at large;
The allegations of violence, if any;
The potential penalty following a conviction;
The accused’s history of mental illness, if any;
The accused’s reputation, particularly for violence;
The risk, if any, that the accused will attempt to obstruct justice or intimidate witnesses;
The accused’s criminal record, if any;
Whether the allegations include “abuse” as defined by G.L. c. 209A; and,
The accused’s history, if any, of violating restraining orders.

Standard Applied: Clear & Convincing

To detain the accused, the court must find, by clear and convincing evidence, that no conditions of release will reasonably assure the safety of any other person or the community. Clear and convincing evidence is a less stringent standard than “beyond a reasonable doubt,” which is very troubling. If the accused is going to being detained prior to being afforded his right to a jury trial, the standard of evidence should exceed “beyond a reasonable doubt.” If the accused is as dangerous as prosecutors like to insist, they should be able to demonstrate conclusively the substantial risk of releasing the accused back into the community.

Judge’s Options After Hearing

Following the hearing, the judge can:

Release the accused on personal recognizance (bail may be a separate issue);
Release the accused, but place specific conditions of release on him; or,
Order the accused detained for 90 days.

The judge may impose any number of the restrictions on an individual he has decided to release. These may include:

Restrict the accused’s drug/alcohol use;
Require the accused to attend school or to seek/maintain employment;
Restrict the accused’s travel or associations with other individuals;
Order the accused to “stay away” from the alleged victim or a place (including his home); and,
Order the accused to surrender any firearms or other weapons.

Accused Can Appeal to Superior Court

The accused may appeal an order of detention or conditions of release to the Superior Court.

Accused Can be Detained for 180 Days

Because most citizens accused of a crime, even a very serious crime, are arraigned in District Court, it is the District Court judge who will usually rule on the prosecutor’s motion to detain the accused. For those citizens being accused of crimes beyond the jurisdiction of the District Court, pre-trial detention can amount to six months of pre-trial incarceration. The District Attorney’s Office will, usually toward the very end of the 90 days of detention, present its case before the grand jury for indictment. If the prosecutor secures the indictment, he will have the accused re-arraigned in Superior Court, where he will move the Superior Court to detain the accused for an additional 90 days. (The prosecutor will nolle pros (drop) the charges in District Court).

Alleged Violations of Conditions

If the defendant is released on conditions and later accused of violating those conditions, the court will hold a hearing to determine if the accused, in fact, violated the conditions. If the judge finds that the accused violated a condition or conditions of release, he can order the accused detained for up to 90 days.

Retain an Experienced, Battle Tested Criminal Defense Lawyer

Call us at 617-492-0055 to schedule a free in-office consultation with Massachusetts Criminal Attorney, Kevin J. Mahoney.

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