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A motion to dismiss, is the appropriate and only way to challenge a finding of probable cause. After the issuance of a complaint, a motion to dismiss will lie for a failure to present sufficient evidence to the clerk-magistrate (or judge), for a violation of the integrity of the proceeding, or for any other challenge to the validity of the complaint.
Bruce Sumoski alleged that the defendant, his former landlord, struck him one night, causing him to lose consciousness. The defendant admitted involvement in some type of an encounter with Sumoski, but denied the alleged assault and battery. A police officer filed an application in the Boston Municipal Court Department (BMC) for the issuance of a complaint, and, after a show cause hearing, an assistant clerk-magistrate issued process. At the defendant's arraignment almost one month later, a judge in the BMC ordered the case reheard by a different clerk-magistrate after the defendant alleged that his witness had been denied the opportunity to testify at the show cause hearing. The second clerk-magistrate again found probable cause; the defendant "appealed"; and once more the parties appeared before the same BMC judge. This time the defendant claimed that a police officer acquainted with the complainant had been improperly permitted by the clerk-magistrate "to ask questions of the [defendant] or make comments." The judge then conducted yet a third evidentiary hearing and found that no probable cause existed. The Commonwealth filed a petition for relief pursuant to G. L. c. 211, § 3, and the case was reserved and reported to the full court.
Could a district court or the BMC judge conduct a de novo evidentiary hearing to review a clerk-magistrate's finding of probable cause to issue process on an application for a criminal complaint?
In response to the Commonwealth's petition for relief, the supreme judicial court held that a district court or the BMC judge could not conduct a de novo evidentiary hearing to review a clerk-magistrate's finding of probable cause to issue process on an application for a criminal complaint. The court noted that once a determination was made by the clerk-magistrate that probable cause existed for the issuance of the complaint, that stage of the proceeding ended, and the complaint should have issued. The court went on to hold that any alleged defect in the procedure before the clerk-magistrate could only be remedied by means of a motion to dismiss after the issuance of the complaint.