Information:

You can also:

Follow Us:

FacebookTwitterBlog RSS


Share |

Massachusetts Criminal Procedure Rule 3: Complaint and Indictment; Waiver of Indictment; Probable Cause Hearing

(Applicable to cases initiated on or after September 7, 2004)

[Disclaimer]

(a) Commencement of Criminal Proceeding. A criminal proceeding shall be commenced in the District Court by a complaint and in the Superior Court by an indictment, except that if a defendant is charged in the District Court with a crime as to which the defendant has the right to be proceeded against by indictment and the defendant has waived the right to an indictment pursuant to subdivision (c), the Commonwealth may proceed in the Superior Court upon the complaint.

(b) Right to Indictment. A defendant charged with an offense punishable by imprisonment in state prison shall have the right to be proceeded against by indictment except when the offense charged is within the concurrent jurisdiction of the District and Superior Courts and the District Court retains jurisdiction.

(c) Waiver of Indictment.

(1) Right to Waive Indictment. A defendant charged in a District Court with an offense as to which the defendant has the right to be proceeded against by indictment shall have the right, except when the offense charged is a capital crime, to waive indictment, unless the Commonwealth proceeds by indictment pursuant to subdivision (e) of this rule.

(2) Procedure for Waiving Indictment. The defendant may waive the right to be proceeded against by indictment by filing a written waiver of that right in the District Court prior to the determination to bind the case over to the Superior Court for trial. The District Court may for cause shown grant relief from that waiver. After the determination by the District Court to bind the case over to the Superior Court for trial, the defendant may waive the right to be proceeded against by indictment by filing a written waiver of that right, with the consent of the prosecutor, in the Superior Court.

(d) Transmission of Papers. If the defendant is bound over to the Superior Court for trial after a finding of probable cause or after the defendant waives a probable cause hearing, the clerk of the District Court shall transmit to the clerk of the Superior Court a copy of the complaint and of the record; the original recognizances; a list of the witnesses; a statement of the expenses and the appearance of the attorney for the defendant, if any is entered; the waiver of the right to be proceeded against by indictment, if any is executed; the pretrial conference report, if any has been filed; and the report of the department of mental health as to the mental condition of the defendant, if such report has been filed under the provisions of the General Laws.

(e) Indictment after Waiver. Notwithstanding the defendant's waiver of the right to be proceeded against by indictment, the prosecuting attorney may proceed by indictment.

(f) Probable Cause Hearing. Defendants charged in a District Court with an offense as to which they have the right to be proceeded against by indictment and defendants charged in a District Court with an offense within the concurrent jurisdiction of the District and Superior Courts for which the District Court will not retain jurisdiction, have the right to a probable cause hearing, unless an indictment has been returned for the same offense. If the District Court finds that there is probable cause to believe that the defendant committed the crime or crimes alleged in the complaint, the court shall bind the defendant over to the Superior Court. If the District Court finds that there is no probable cause to believe that the defendant committed the crime or crimes alleged in the complaint, the court shall dismiss the complaint.

(g) The Complaint Process

(1) Procedure for Obtaining a Complaint. Any person having knowledge, whether first hand or not, of the facts constituting the offense for which the complaint is sought may be a complainant. The complainant shall convey to the court the facts constituting the basis for the complaint. The complainant's account shall be either reduced to writing or recorded. The complainant shall sign the complaint under oath, before an appropriate judicial officer.

(2) Probable Cause Requirement. The appropriate judicial officer shall not authorize a complaint unless the information presented by the complainant establishes probable cause to believe that the person against whom the complaint is sought committed an offense.

As amended March 8, 2004, effective September 7, 2004.

Reporter's Notes:

(2004) WHILE DRAWN IN PART FROM THE GENERAL LAWS AND INCORPORATING MANY PROCEDURES DICTATED BY THE CASE LAW OF THE COMMONWEALTH, RULE 3 ALTERS PRESENT PRACTICE IN SOME RESPECTS. AS ORIGINALLY PROMULGATED IN 1979, RULE 3 WAS DESIGNED TO FORCE ALL NONCAPITAL DEFENDANTS IN THE DISTRICT COURT WHO HAD A RIGHT TO AN INDICTMENT TO MAKE AN ELECTION BETWEEN HAVING THEIR CASES CONSIDERED BY A GRAND JURY OR OBTAINING A PROBABLE CAUSE HEARING. THIS "FORCED WAIVER" PROVISION WAS RARELY USED IN PRACTICE BECAUSE OF CONCERNS THAT IT WOULD INFRINGE ON A DEFENDANT'S CONSTITUTIONAL RIGHT TO INDICTMENT AND STATUTORY RIGHT TO A PROBABLE CAUSE HEARING. A 2004 AMENDMENT TO THE RULE ELIMINATED THE "FORCED WAIVER" PROVISION. THE RATIONALE FOR THE "FORCED WAIVER" PROVISION WAS BASED ON A CONCERN FOR EFFICIENCY. HOWEVER, EVEN WITHOUT FORCING A DEFENDANT TO CHOOSE BETWEEN A PROBABLE CAUSE HEARING AND AN INDICTMENT, THE PROSECUTOR CAN PREVENT UNNECESSARY DUPLICATION OF PROCEDURE SIMPLY BY INDICTING THE DEFENDANT PRIOR TO THE PROBABLE CAUSE HEARING. IF IT IS INEFFICIENT TO HAVE A PROBABLE CAUSE HEARING, THE PROSECUTOR IS IN THE BEST POSITION TO RECOGNIZE THAT FACT AND TO TAKE THE STEPS NECESSARY TO AVOID IT. THE 2004 AMENDMENT ALSO ELIMINATED A REFERENCE TO JUVENILE PROCEDURE MADE IRRELEVANT BY STATUTE AND ADDED PROVISIONS DESCRIBING THE COMPLAINT PROCESS.

Subdivision (a). This subdivision in part restates G.L. c. 263, § 4. Approximate parallels may be found in Rules of Criminal Procedure (ULA) Rule 23(a) (1974); ALI Model Code of Pre-Arraignment Procedure §§ 330.1(3), 340.1(2) (POD 1975).

General Laws c. 263, § 4 provides that "[n]o person shall be held to answer in any court for an alleged crime, except upon an indictment by a grand jury or upon a complaint before a district court... "It is only the issuance of a complaint or an indictment that begins the criminal process, initiates a defendant's right to counsel under the Sixth Amendment to the United States Constitution, and tolls the statute of limitations. See Commonwealth v. Valchuis, 40 Mass. App. Ct. 556, 560 (1996) (statute of limitations not tolled by application for complaint or citation, but by complaint itself).

The District Courts are empowered by G.L. c. 218, § 32, to "receive complaints and issue warrants and other processes for the apprehension of persons charged with crime..." and pursuant to G.L. c. 218, § 30, shall bind over for trial in the Superior Court defendants who appear to be guilty of crimes not within their final jurisdiction, and may bind over defendants appearing guilty of crimes within their final jurisdiction. Where the charge is by complaint and the accused is under arrest not having been indicted by grand jury, he is entitled "as soon as may be" to a probable cause hearing to determine whether he should be held for trial. G.L. c. 276, § 38.

Subdivision (b). This subdivision in large part restates the essentials of prior practice. The right to indictment is not mentioned in the Constitution of the Commonwealth. It was not until 1857 that the Supreme Judicial Court defined that right, holding that "punishment in the state prison is an infamous punishment, and cannot be imposed without ... indictment ... ". Jones v. Robbins, 74 Mass. 329 (8 Gray 329), 349 (1857). Therefore, subdivision (b) affords the right to be proceeded against by indictment to "a defendant charged with an offense punishable by imprisonment in state prison...," that is, Massachusetts Correctional Institution, Cedar Junction. G.L. c. 125, § 1(o). The right to indictment is not extended to defendants charged with a crime within the concurrent jurisdiction of the District and Superior Courts if the District Court retains jurisdiction. Section 27 of chapter 218 of the General Laws provides in part:

"[District Courts] may impose the same penalties as the superior court for all crimes of which they have jurisdiction, except that they may not impose a sentence to state prison".

General Laws c. 279, § 23 states that "[n]o sentence of a male convict to imprisonment or confinement for more than two and one half years shall be executed in any jail or house of correction." General Laws c. 218, §§ 26-27 and c. 279, § 23, when construed together, have led to the settled practice of the District Court, although having jurisdiction of felonies punishable by less than five years at Cedar Junction, sentencing to a jail or house of correction for not more than two and one half years.

Because a defendant tried in District Court is not subject to a sentence to state prison, there is no right to be proceeded against by indictment.

Subdivision (c) (1). While intended to secure a benefit to the accused, a grand jury indictment is but the formal accusation or presentation of charges against the accused, see Commonwealth v. Woodward, 157 Mass. 516, 518 (1893), and may be waived. See DeGolyer v. Commonwealth, 314 Mass. 626, 632-33 (1943); e.g. Commonwealth v. Thurston, 419 Mass. 101 (1994). Statutory authorization for such waiver in instances of defendants committed or bound over to the Superior Court for trial was found in former G.L. c. 263, § 4A (St 1934, c. 358).

A defendant who is bound over to the Superior Court after a finding of probable cause has the right to indictment and the right to waive indictment. However, a defendant charged with a capital crime cannot waive indictment. G.L. c. 263, § 4A (as amended).

If after a waiver of indictment, probable cause is found to bind the defendant over for trial, G.L. c. 218, § 30, the Superior Court shall have as full jurisdiction over the case on the complaint as if an indictment has been found. See DeGolyer v. Commonwealth, 314 Mass. 626, 632 (1943).

(c) (2). Under the original version of the provision now contained in Rule 3(c), the judge was required to advise a defendant who had a right to an indictment that he or she might waive indictment and proceed upon the complaint. In the 2004 revision of the rule, the elimination of the "forced waiver" provision made it unnecessary to require that a defendant receive such a warning. The right to waive indictment remains, however, except in a capital case where the General Laws prohibit it. See G.L. c. 263, § 4A. The defendant may exercise the option to waive indictment in the District Court, before being bound over, or afterward, in Superior Court. In either event, the approval of the judge is not necessary, although the court must ensure that the waiver is valid. This means that it must be intelligent and voluntary, see DeGolyer v. Commonwealth, 314 Mass. 626, 632 (1943), and that the defendant either has counsel or has waived the right to the assistance of counsel. The waiver must be in writing.

A juvenile who would otherwise be entitled to an indictment by virtue of G.L. c. 263 § 4 may also waive indictment under the procedure established in this subdivision.

Subdivision (d). This subdivision was formerly Rule 3(c)(2) prior to the revision of the Rule in 2004. It generally governs the transmission of the papers in the case after a defendant is bound over to the Superior Court. It is implicit in the rule that the defendant may waive the probable cause hearing to which he or she is entitled thereby proceeding immediately to the Superior Court upon the complaint. E.g. Commonwealth v. Tanso, 411 Mass. 640 (1992). Subdivision (d) provides for that contingency.

Subdivision (e). If the defendant waives indictment and probable cause is found the case moves immediately to the Superior Court for trial or other disposition unless the Commonwealth chooses to seek an indictment. The prosecution may wish to so proceed because of defects in the complaint, because there are other chargeable crimes - e.g., related offenses arising out of the same criminal episode - or to avail itself of the investigative power of the grand jury.

The prosecutor also has the option of obtaining an indictment in cases where the defendant does not have the right to one and the District Court would otherwise exercise final jurisdiction over the offense. So long as the District Court has not already placed the defendant in jeopardy, cf. Commonwealth v. Aldrich, 21 Mass. App. Ct. 221 (1985) (indictment barred by jeopardy where defendant pled guilty to complaint in District Court), the return of an indictment for the same offense as alleged in a complaint is ordinarily sufficient reason for the court to dismiss the complaint. Compare Commonwealth v. Burt, 393 Mass. 703 (1985) (judge acted properly in dismissing complaint upon return of indictment) with Commonwealth v. Raposa, 386 Mass. 666 (1982) (where judge refused to dismiss complaint upon return of indictment, it was proper for prosecutor to nolle prosequi). The prosecutor should not abuse this power however, such as by waiting until the day of trial to obtain an indictment, see Raposa, 386 Mass. at 669 n. 8 ("We would not look with favor, however, on a prosecutor's deliberate obstruction of the criminal process and waste of judicial resources by waiting until the day of trial in the District Court to seek indictments."), or by removing a case to Superior Court to avoid having to comply with a District Court order denying a continuance, see Commonwealth v. Thomas, 353 Mass. 429 (1967).

Subdivision (f). This subdivision was added by amendment in 2004.

Defendants whose cases are going to be ultimately disposed of in Superior Court, either because the District Court lacks or declines jurisdiction, are entitled to a probable cause hearing unless the prosecutor obtains an indictment for the same offense charged in the complaint. The return of an indictment constitutes a finding of probable cause and ordinarily renders unnecessary a probable cause hearing. See Lataille v. District Court of Eastern Hampden, 366 Mass. 525, 531 (1974). There may be circumstances, however, where the prosecutor's bad faith in obtaining an indictment entitles the defendant to a probable cause hearing in any event. Cf. Hadfield v. Commonwealth, 387 Mass. 252, 257 (1982) (dicta) (circumventing probable cause hearing may be invalid where "effrontery to district court," "obstruction of criminal process," or "waste of judicial resources."); Commonwealth v. Spann, 383 Mass. 142, 145 (1981) (if prosecutor promised that defendant would not be indicted before a probable cause hearing and if defendant relied on promise to his detriment, promise would be enforced); Lataille v. District Court of Eastern Hampden, 366 Mass. 525, 531 n. 6 (1974) (agreement between counsel might entitle defendant to further pursuit of probable cause hearing which was in progress at time of indictment). Absent these unusual circumstances, however, the ordinary course of events after an indictment has been returned is for the District Court to dismiss the complaint, or for the prosecutor to enter a nolle prosequi, once the defendant has been arraigned in the Superior Court.

If an indictment has not already been returned, a defendant charged with a crime not within the jurisdiction of the District Court must be given a probable cause hearing "as soon as may be." See G.L. c. 276, § 38. The policy underlying this subdivision looks to liberal granting of continuances to the prosecution in order that indictments may be sought in cases that are scheduled for a probable cause hearing.

Even if the complaint charges a defendant with a crime within the jurisdiction of the District Court (which includes misdemeanors for which there would otherwise be no right to an indictment) the court may hold a probable cause hearing, see G.L. c. 218 § 30, if the judge in the exercise of discretion determines that the interest of justice would be served by having the Superior Court dispose of the defendant's case. This would typically be the case either to allow the consolidation of cases or in recognition of the exclusive power of the Superior Court to sentence defendants charged with a concurrent jurisdiction felony to state prison. Cf. Commonwealth v. Zannino, 17 Mass. App. Ct. 73, 79 (1983) (the power to exercise jurisdiction or to bind the defendant over for trial in the Superior Court "is not to be used arbitrarily, but in view of the circumstances of each particular case"). While it is ordinarily the prosecutor who institutes a request that a matter within the District Court's jurisdiction be treated as a probable cause matter rather than a trial on the merits, the ultimate decision is the judge's. See Commonwealth v. Zannino, 17 Mass. App. Ct. 73, 78-79 (1983) ("if the crime charged is within the final jurisdiction of the District Court, the threshold decision whether to conduct a full trial on the merits or only a probable cause hearing is, at least ordinarily, a question for the judge and not the prosecutor").

If a case is within the final jurisdiction of the District Court, the judge must announce that the court is going to decline jurisdiction prior to hearing sworn testimony from any witnesses, which is when jeopardy would otherwise attach in a non-jury trial. See Commonwealth v. DeFuria, 400 Mass. 485, 487 (1987); Crist v. Bretz, 437 US 28, 37 n.15 (1978). If the court does not make a clear announcement that it is declining jurisdiction, any hearing that follows at which sworn testimony is received will be considered as a trial on the merits at which jeopardy has attached. See Commonwealth v. Clemmons, 370 Mass. 288, 291 n. 2 (1976); Corey v. Commonwealth, 364 Mass. 137, 142 n. 7 (1973). Compare Commonwealth v. Crosby, 6 Mass. App. Ct. 679 (1978) (since judge failed to announce that he was declining jurisdiction prior to hearing sworn testimony offered in the course of an admission to sufficient facts, the proceedings constituted a trial on the merits and jeopardy barred the defendant's indictment) with Commonwealth v. DeFuria, 400 Mass. 485 (1987) (judge's failure to announce declination of jurisdiction prior to prosecutor's recitation of facts at an admission to sufficient findings did not bar further prosecution since no sworn testimony taken). Cf. Commonwealth v. Mesrobian, 10 Mass. App. Ct. 355, 356 n. 2 (1980) ("fundamental fairness dictates that the Commonwealth ought to be required to state unequivocally at the outset of the hearing its intention [to proceed on the basis of probable cause rather than a trial on the merits]"). Since defense strategy at a probable cause hearing differs significantly from that at a trial, the judge should provide notice to the defendant of the decision to decline jurisdiction as far in advance of the hearing as possible. The District Court rules promulgated on January 1, 1996 contemplate that the pretrial hearing is the appropriate stage at which to make the decision. District/Municipal Courts Rules of Criminal Procedure, Rule 4(f).

Whether a probable cause hearing concerns an offense outside the jurisdiction of the District Court or results from a decision of the court to decline jurisdiction over an offense for which it could have held a trial, the standard that the court should apply at the probable cause hearing to determine whether to bind the case over to the Superior Court is the same. It is the test a trial judge uses to determine a motion for a required finding of not guilty. See Myers v. Commonwealth, 363 Mass. 843, 850 (1973) ("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. Thus, the magistrate should dismiss the complaint when, on the evidence presented, a trial court would be bound to acquit as a matter of law.") This standard is more stringent than the one that governs the grand jury's determination. See Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (an indictment cannot stand unless, at a minimum, it is supported by evidence sufficient to establish probable cause to arrest); Commonwealth v. O'Dell, 392 Mass. 445, 451-52 (1984) (grand jury requirement of sufficient evidence to establish the identity of the accused and probable cause to arrest him is considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding).

At a probable cause hearing, the defendant must be given a meaningful opportunity to cross-examine witnesses and present evidence on his or her own behalf to assure an accurate appraisal of probable cause. See Myers v. Commonwealth, 363 Mass. 843 (1973); Corey v. Commonwealth, 364 Mass. 137 (1973). Following the lead of the United States Supreme Court in Coleman v. Alabama, 399 US 1 (1970), the Supreme Judicial Court held that a probable cause hearing is such a critical stage in criminal proceedings as to require the assistance of counsel. See Commonwealth v. Britt, 362 Mass. 325 (1972). The rules of evidence at a probable cause hearing should in general be the same as are applicable at a trial, that is, a finding of probable cause to hold the defendant for trial "must be based on competent testimony which would be admissible at trial." Myers v. Commonwealth, supra at 849 n 6. Further, the defendant may have the proceedings taken by a stenographer at his or her own expense, see G.L. c. 221, § 91B; Commonwealth v. Shea, 356 Mass. 358, 360-61 (1969); Commonwealth v. Britt, 362 Mass. 325, 328-29 (1972) and the transcript is admissible in subsequent proceedings when otherwise competent. See G.L. c. 221, § 91B, c. 233, § 80; Commonwealth v. DiPietro, 373 Mass. 369 (1977).

If the evidence meets the appropriate standard and the case is bound over to Superior Court, the District Court retains jurisdiction to rule on ancillary matters until an indictment is returned. See Commonwealth v. Tanso, 411 Mass. 640, 644 (1992). If the evidence presented at the probable cause hearing does not meet the appropriate standard, the complaint should be dismissed. See Commonwealth v. Ortiz, 393 Mass. 523, 524 (1984). Since jeopardy does not attach at a probable cause hearing, see Commonwealth v. Scala, 380 Mass. 500, 505 n. 3 (1980), nor is a finding of no probable cause subject to appeal, a District Court's dismissal based on a failure of the evidence to meet the standard does not bar a further proceedings, either by way of a subsequent indictment for the same offense, see Commonwealth v. Juvenile, 409 Mass. 49, 52 (1991); Burke v. Commonwealth, 373 Mass. 157, 160 (1977), or holding another probable cause hearing based on a new complaint, see Juvenile v. Commonwealth, 375 Mass. 104, 106 (1978) ("Additional probable cause hearings may be held, especially if additional evidence is to be offered at the subsequent hearing."). However, if the institution of further proceedings constitutes harassment, the defendant is entitled to relief. See Juvenile v. Commonwealth, 375 Mass. 104, 106 n. 1 (1978); Maldonado, petitioner, 364 Mass. 359, 364-365 (1973).

Subdivision (g) (1). This subdivision and the one following were added to Rule 3 by a 2004 amendment.

The General Laws identify the appropriate judicial officers who play a role in the process of authorizing the issuance of a criminal complaint and administering the oath. See e.g., General Laws c. 218 § 7 (justices and special justices may administer oaths); c. 218 § 10A (deputy assistant clerks may administer oath); c. 218 § 33 (clerks, assistant clerks, temporary clerks, and temporary assistant clerks may receive complaints and administer the oath); c. 218 § 35 (justice or special justice may receive complaints); c. 218 § 37 (justices, special justices, clerks, assistant clerks, temporary clerks and temporary assistant clerks may issue process resulting from a hearing upon an application for a complaint).

General Laws c. 276, § 22 provides that a complainant is to be examined "on oath" and that the complaint is to be "subscribed by the complainant." The preferred procedure is to administer the oath to the complainant before he or she makes the statements which will serve as the basis for the complaint, but a complaint is still valid if the complainant swears to the truth of statements tendered to the appropriate judicial official after they have been made. See Commonwealth v. Cote, 15 Mass. App. Ct. 229, 236 (1983). There is no requirement that the statements offered in support of the issuance of a complaint be based on personal knowledge or observation. A complainant may properly present statements of which he or she has no first-hand knowledge. See Commonwealth v. Dillane, 77 Mass. (11 Gray) 67 (1858); Commonwealth v. Cote, 15 Mass. App. Ct. 229 (1983). Nor does a complainant have to have a personal stake in the matter. See Commonwealth v. Haddad, 364 Mass. 795, 797 (1974) ("anyone may make a criminal complaint in a District Court who is competent to make oath to it.") The practice in many courts where a single officer applies for complaints for offenses of which the officer has no first-hand knowledge is not only appropriate, but a sound administrative procedure. Cf. District Court Standards of Judicial Practice, THE COMPLAINT PROCEDURE, standard 3:23, commentary at 41-42 (1975). Rule 3(g) (1) authorizes the signing of the complaint by persons other than the arresting officer in order to avoid requiring the officer's presence at any time prior to the probable cause hearing or trial. The subdivision is grounded in the desire to avoid removing an officer from a regular work shift to execute the mere formality of personally signing the complaint.

The person against whom a complaint is sought does not have a right to be present at the procedure described in this subdivision. See Commonwealth v. Smallwood, 379 Mass. 878 (1980). However, in cases where no arrest has been made and all of the offenses the complainant seeks are misdemeanors, see Commonwealth v. Cote, supra, 15 Mass. App. Ct. at 235, as well as in certain felony cases, G.L. c. 218 § 35A provides for notice and a hearing before a complaint is authorized, subject to exceptions where there is a risk of bodily injury, commission of a crime, or flight from the jurisdiction.

"The implicit purpose of the § 35A hearings is to enable the court clerk to screen a variety of minor criminal or potentially criminal matters out of the criminal justice system through a combination of counseling, discussion, or threat of prosecution ... ". Snyder, Crime and Community Mediation - The Boston Experience: A Preliminary Report on the Dorchester Urban Court Program, 1978 Wis L Rev 737, 746 quoted with approval in Gordon v. Fay, 382 Mass. 64, 69-70 (1980).

This subdivision changes existing practice by requiring that in all cases, the facts on which a complaint is based either be submitted in writing or, in the discretion of the appropriate judicial official, conveyed orally so long as the oral statement is transcribed or otherwise recorded. The facts on which the complaint is based may be memorialized in any of the following three ways. First is a written statement submitted by the complainant. The written account of the facts can come from a police report, from a motor vehicle citation, see G.L. c. 90C § 3(B)(2), from a statement memorialized on the form for an application for a complaint promulgated by the District Courts, see District/Municipal Courts Rules of Criminal Procedure, Rule 2 (effective Jan. 1, 1996), or from any other written source. Second is a written statement made by the appropriate judicial official based on information conveyed by the complainant. And third is to record an oral statement by the complainant. Nothing in this subsection is intended to require the recording of hearings under G.L. c. 218 § 35A.

A number of other jurisdictions follow the practice of requiring the basis for a criminal complaint to be memorialized. See Fed Rules Crim Pro, Rules 3 & 4; Colo. Rules Crim. Pro., Rule 4(a); Minn. Rules Crim. Pro., Rule 2.01; R.I. Rules Crim. Pro., Rule 3. The purpose of this requirement is twofold. First, requiring a record of the facts presented to the court will protect the integrity of the complaint process. And second, in those cases where a defendant has the right to litigate the basis on which a complaint was issued, see e.g., Commonwealth v. DiBennadetto, 436 Mass. 310 (2002), the existence of a record will facilitate judicial review.

(g) (2). This subdivision changes the existing practice concerning the authorization of criminal complaints in some cases. Under prior practice, where a complaint was sought against an individual who had been arrested, the appropriate judicial officer did not evaluate the justification for initiating criminal proceedings. It was only if the complainant applied for process to issue, either a summons or warrant, that a determination of probable cause was necessary. STANDARDS OF JUDICIAL PRACTICE: THE COMPLAINT PROCEDURE, 2:03, Administrative Office of the District Courts (1975). Under this subdivision, a finding of probable cause must be made for all cases, whether the defendant has been arrested or not. In requiring a probable cause determination in every case, this subdivision follows the federal model, see Fed Rules Crim Pro., 4(a) & 5(a), and that of a number of other states, e.g., Conn. Practice Book, § 617; Minn. Rules Crim. Pro., Rule 2.01; N.J. Rules Crim. Pro., Rule 3:4-1(a).

The consequence, if any, of the failure of the record in a particular case to demonstrate probable cause is a matter that the rule does not address. The Supreme Judicial Court, in Commonwealth v. DiBennadetto, supra at 313, has held, however, that where a complaint was authorized after a § 35A hearing, "the issuance of [the] complaint ... is not to be revisited by a further show cause hearing; the defendant's remedy is a motion to dismiss.".

The purpose of a probable cause determination prior to the authorization of a complaint is to screen out cases that do not belong in the criminal justice system at the earliest possible stage. The standard of probable cause to authorize a complaint is the same as the standard that governs the grand jury's decision to issue an indictment. "[A]t the very least the grand jury must hear sufficient evidence to establish the identity of the accused ... and probable cause to arrest him." Commonwealth v. O'Dell, 392 Mass. 445, 450 (1984), quoting Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). As in the grand jury or arrest context, the probable cause determination at this stage of the process may be based on hearsay. All that is required is "reasonably trustworthy information ... sufficient to warrant a prudent man in believing that the defendant had committed ... an offense," O'Dell, 385 Mass. at 450. This standard is considerably less exacting than the one that a judge must apply at a probable cause hearing under subdivision (f). Id. at 451. If a case cannot even meet the standard necessary under subdivision (g), it would be a waste of judicial resources and an unnecessary burden on the individual for the case to move any further in the process.

This subsection does not alter existing case law that gives courts in circumstances where a private citizen is a complainant, the power to refuse to issue a complaint even though there is probable cause to do so. See Victory Distributors v. Ayer Division of the District Court Dept., 435 Mass. 136 (2001). Where the Commonwealth seeks a complaint, however, the court must issue it so long as it is legally valid. Id. Although there is no explicit provision in the Rules of Criminal Procedure for the process that follows from an initial denial of an application for a complaint, the Supreme Judicial Court has held that judges have inherent authority to rehear such applications. See Bradford v. Knights, 427 Mass. 748 (1998).