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Massachusetts Trial Court Rule XI:
Uniform Rule for Probable Cause Determinations for Persons Arrested Without a Warrant

[Disclaimer]

(a) Definitions. In this rule the following words and phrases shall have the following meanings:

(1) "Judicial officer" means a clerk-magistrate, assistant clerk, temporary clerk-magistrate or temporary assistant clerk. In emergency circumstances, a judge of any department of the Trial Court may act as a judicial officer under this rule.

No judicial officer shall receive a fee for admitting a person to bail or recognizance in a case in which such judicial officer makes the determination provided for in this rule.

(2) "Local Court" means, the Boston Municipal Court Department, or the division of the District Court Department, the Housing Court Department, or the Juvenile Court Department, with jurisdiction over such offense.

(3) "Police" means the office in charge of the place of detention, or his or her designee.

(4) "Weekday" means the period beginning at 8:30 a.m. on Monday and ending at 4:30 p.m. on the following Friday, exclusive of legal holidays.

(5) "Weekend" means the period beginning at 4:30 p.m. on Friday and ending at 8:30 a.m. on the following Monday.

(6) "Holiday" means the period beginning at 4:30 p.m. on the day before a legal holiday and ending at 8:30 a.m. on the day after a legal holiday.

(b) Right to Probable Cause Determination. A person who has been arrested for an offense for which no warrant has issued, if not released on bail or recognizance, shall be entitled prior to any extended pretrial detention to a determination by a judicial officer of whether there is probable cause to believe that such person has committed such offense, except where such person's detention is otherwise authorized by a warrant or other judicial process.

(c) Time for Determination. The police shall request such determination from a judicial officer as soon as reasonably possible after such person's arrest. Such request and determination must be made no later than twenty-four hours after arrest, absent exigent circumstances.

(1) On Weekdays. If such determination is requested on a weekday, such determination shall be made by a judicial officer of the local court as soon as reasonably possible. If no judicial officer is in attendance at the local court during normal court hours, such determination shall be made by a judge, or shall be made by a judicial officer of such other division of that court department as has been designated by the chief justice of that department.

(2) On Weekends and Holidays. If such determination is requested on a weekend or holiday, such determination shall be made by a judicial officer of the Boston Municipal, District, Housing, Juvenile or Superior Court Departments. The Trial Court's Chief Justice for Administration and Management shall establish a procedure to make available one or more such judicial officers to make such determinations each weekend and holiday during such hours as the Chief Justice for Administration and Management shall determine. All clerk-magistrates, assistance clerks, temporary clerk-magistrates and temporary assistant clerks of such departments, who are determined necessary to the implementation of the procedure by the Chief Justice for Administration and Management, shall participate in such procedure unless exempted by the Chief Justice for Administration and Management because of illness or other personal hardship.

(d) Nature of Determination. A judicial officer shall make such determination prior to arraignment in an ex parte, non-adversary and informal proceeding at which the arrestee has no right to be present or to be represented by counsel. Such determination shall be governed by the same legal standards that govern determinations of probable cause to support the issuance of an arrest warrant. In making such determination, the judicial officer shall consider all relevant information that is alleged to constitute probable cause for each offense for which such person has been arrested without a warrant, submitted under oath or affirmation, or under the pains and penalties of perjury, whether or not such information was known at the time of arrest. Such information, if presented in writing, may be transmitted to a judicial officer by facsimile transmission.

A judicial officer's liability for any determination made under this rule shall be governed by the legal standards concerning immunity for legal decisions made by judges and magistrates.

(e) Results of Determination. The judicial officer shall promptly reduce to writing his or her determination as to each offense and notify the police of each determination. A copy of such written determination shall be transmitted to the police as soon as possible. Such copy may be transmitted by facsimile transmission.

(1) Probable Cause Found by Judicial Officer of Local Court. If a judicial officer of the local court determines that there is probable cause to believe that such arrestee committed one or more of the offenses for which he or she was arrested, the judicial officer shall file with such court copies of his or her written determination and of any written statement of facts submitted to him or her. Such determination, and any such written statement of facts, shall be filed and docketed with the record of such case, and shall be a public record.

(2) Probable Cause Found by Other Judicial Officer. If a judicial officer other than a judicial officer of the local court determines that there is probable cause to believe that such arrestee committed one or more of the offenses for which he or she was arrested, the judicial officer shall direct the police to file with the local court, together with the application for complaint for such offense, copies of the judicial officer's written determination and of any written statement of facts submitted to him or her. Such determination, and such written statement of facts, shall be filed and docketed with the record of such case, and shall be a public record.

(3) No Probable Cause Found. If a judicial officer determines that there is no probable cause to believe that the arrestee committed any of the offenses for which he or she was arrested, the police shall promptly release such arrestee from pretrial detention for such offenses. The judicial officer shall file with the local court copies of his or her written determination and of any written statement of facts submitted to him or her. Such determination, and any such written statement of facts, shall be filed separately from the records of criminal and delinquency cases, but shall be a public record.

As added, effective July 1, 1994; amended, effective July 1, 1994

Statement of the Justices of the Supreme Judicial Court on Trial Court Rule XI

March 10, 1994 The Justices of the Supreme Judicial Court today approved as submitted Trial Court Rule XI, entitled Uniform Rule for Probable Cause Determinations for Persons Arrested without a Warrant. The rule was submitted to the Justices for their approval in order to provide a process by which the constitutional requirement would be met that there be a prompt determination of probable cause by a judicial officer following a warrantless arrest. The nature of that requirement is set forth in Jenkins v. Chief Justice of the Dist. Court Dept., 416 Mass. 221 (1993). The Justices elected not to require that in all instances the court preserve a record of the facts presented to a judicial officer in support of a determination of probable cause following a warrantless arrest. If such a written statement of probable cause is presented, as some police departments do, there will be such a record, even though it is not required by rule. The Justices wish to see how the new process works in the form proposed. The availability to defense counsel at arraignment of a police statement prepared prior to the issuance of a criminal complaint in a case commenced by arrest is assured by the operation of the recently effective Interim District and Boston Municipal Court Rules of Criminal Procedure Applicable to Cases Governed by One-Trial Procedures. Experience may show that, for practical purposes, this written report will be sufficient to protect the rights of persons arrested without a warrant. If, however, experience shows that a fair and effective process does require a require a record of the information submitted in support of a finding of probable cause, the rule can be changed. At that time, consideration could also be given to a parallel requirement of a written submission in support of the issuance of an arrest warrant.