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Do I need a lawyer for a clerk magistrate hearing (also known as a probable cause hearing or show cause hearing)?

by | Apr 29, 2021 | Firm News |

YES. A clerk magistrate’s hearing (CMH)  is an individual’s FIRST, LAST, and ONLY chance at keeping a criminal matter off of their CORI and their background check clean.

At a CMH, a defendant is summonsed to appear in Court for a hearing to determine if there is “probable cause” that a crime was committed by the defendant. These are often misdemeanor charges including everything from shoplifting and larceny to negligent driving and violent crimes.

In the vast majority of cases, the complaint is brought on behalf of the Commonwealth by the Police Department, but private complaints can also be initiated. A CMH is a full hearing overseen by a clerk magistrate who listens to testimony from police officers and other witnesses.  A defendant has the right to cross-examine witnesses and introduce evidence on their own behalf. These hearings are often recorded and the testimony can be used in later proceedings.

Without counsel, most unrepresented individuals attempt to defend themselves against these charges by trying to tell their “side of the story.”  The danger of this approach cannot be overstated.  There is a substantial risk that if you testify at this hearing, even in the course of denying the allegations, the Commonwealth can obtain incriminating evidence that can and WILL be used against you at a future criminal proceeding.

In contrast, when you are represented by experienced criminal defense counsel, your counsel can vigorously contest the sufficiency of the evidence through cross-examination of the witnesses. Counsel can present argument on your behalf.  Skilled counsel can “tell” your side of the story without ever requiring you to risk incrimination. Counsel can propose alternate dispositions to the court that will protect you and your record.

I can’t count the number of times clients have called me after a complaint issued against them at a CMH. They tell me that they tried to handle the matter themselves because they didn’t understand at the time how serious it was.  By the time they call me, the complaint has issued, they have been arraigned, and they are horrified to learn that the matter is now entered on their CORI.  As such, any hopes they had to apply for a promotion or new job or volunteer with their kids’ schools is suddenly lost.  In almost every situation I hear a variation of the following as to why they chose not to call a lawyer: (i) the court paper said attorneys weren’t necessary so they figured they could handle it themselves, or (ii) they didn’t want to incur the expense.

The fact is while a lawyer may not be legally “necessary” in the sense that you are ALLOWED to proceed without counsel, that does NOT mean it is in your best interest.  In reality I have represented thousands of clients at clerk’s hearings and prevented the vast majority from going beyond the CMH.  Many of those clients were friends and family of law enforcement.  It is quite telling that members of law enforcement insist their own friends and family members be represented by counsel at a CMH.

As for the cost, you may be surprised. I can’t speak for all attorneys, but it does not cost any extra to retain me at a CMH as opposed to hiring me after arraignment.  It is a free extra swing at the plate.  If you unsuccessfully attempt to represent yourself and charges issue after a CMH, you will not only have wasted your best opportunity to protect your criminal record, you may have potentially damaged your case by making incriminating statements that will be used against you. I try to never make a person feel bad about a decision they have already made, but if you are reading this now, please remember this advice and call an experienced criminal defense lawyer!