Two of the most common misdemeanor charges handled through the clerk magistrate hearing process in Massachusetts are disturbing the peace and trespassing. If you have received a notice to appear at a show cause hearing for either charge, understanding the process and your rights can make the difference between walking away with no criminal record and facing formal prosecution.
The Clerk Magistrate Hearing: Your First Line of Defense
Under G.L. c. 218, § 35A, when a complaint for a misdemeanor is filed, and the accused has not been arrested, the accused has the statutory right to appear—personally or through counsel—and oppose the issuance of the complaint at a show cause hearing before the clerk magistrate. This hearing is not a trial. The rules of evidence do not strictly apply, and the clerk magistrate may consider hearsay.
Critically, the accused has no right to cross-examine witnesses. But the hearing serves an invaluable purpose: it allows the accused to present his or her version of events and, where appropriate, to resolve the matter informally without a criminal complaint ever issuing.
The clerk magistrate’s task is to determine whether probable cause exists to believe the accused committed the offense. Even where probable cause is found, the clerk magistrate retains discretion to decline issuance of the complaint when the prosecutor’s office has not communicated an intent to prosecute—particularly in minor matters involving the everyday disputes of daily life.
Disturbing the Peace — G.L. c. 272, § 53
Disturbing the peace is a broad statute. To secure a complaint, the Commonwealth must show probable cause that the accused engaged in conduct that (1) most people would find to be unreasonably disruptive, and (2) either involved fighting, threatening, violent or tumultuous behavior, or making unreasonable noise in a manner that disturbed the public. Common scenarios include loud arguments in public, confrontations with neighbors, yelling in commercial establishments, or causing a scene at a bar or restaurant.
Defense strategies
The most effective defenses at the clerk magistrate level include demonstrating that the accused’s conduct did not rise to the level of public disturbance, that the behavior was constitutionally protected speech, or that the complainant’s account is exaggerated or retaliatory. Where the dispute is interpersonal, counsel can also advocate for an informal resolution—an outcome the hearing process was specifically designed to facilitate.
Trespassing — G.L. c. 266, § 120
Trespassing requires proof that the accused (1) entered or remained upon property belonging to another, (2) without right, and (3) after having been forbidden to do so by the person in lawful control of the premises, or after having been asked to leave.
This charge frequently arises from disputes with landlords, estranged partners, business owners who have issued no-trespass orders, or police encounters at shopping centers and parks.
Defense strategies.
Why Legal Representation Matters
Because the clerk magistrate hearing is often the only opportunity to prevent a criminal complaint from issuing, it should be taken seriously. A skilled Boston criminal defense attorney can present mitigating facts, negotiate informal resolutions, and challenge the sufficiency of the evidence before charges are ever formally brought. If the clerk magistrate declines to issue the complaint, the matter ends—and no criminal record results.
If you’ve received notice of a clerk magistrate hearing for disturbing the peace or trespassing, it’s important to act quickly. At the Law Office of Matthew W. Peterson, we have successfully helped clients navigate these hearings in Massachusetts and fight to protect their records. If you need a Boston Clerk Magistrate Hearings attorney, call 617-391-0060 today to schedule a strategy session.
Footnotes
[1] G.L. c. 218, § 35A; Boston Globe Media Partners, LLC v. Chief Justice of Trial Court, 483 Mass. 80, 84 (2019).
[2] Eagle-Tribune Publ’g Co. v. Clerk-Magistrate of Lawrence Div. of Dist. Court Dep’t, 448 Mass. 647, 653 (2007).
[3] Id.
[4] Com. v. Clerk-Magistrate of W. Roxbury Div. of Dist. Court, 439 Mass. 352, 356 (2003) (describing § 35A hearings as enabling informal settlement of grievances relating to “the frictions and altercations of daily life”) (quoting Bradford v. Knights, 427 Mass. 748, 751 (1998)).
[5] Commonwealth v. DiBennadetto, 436 Mass. 310, 314 (2002).
[6] Victory Distribs., Inc. v. Ayer Div. of Dist. Court Dep’t, 435 Mass. 136, 142 (2001); Boston Globe Media Partners, 483 Mass. at 86–87.
[7] G.L. c. 272, § 53; Commonwealth v. Mulvey, 57 Mass. App. Ct. 579, 584 (2003); Commonwealth v. Lopiano, 60 Mass. App. Ct. 723, 726 (2004).
[8] G.L. c. 266, § 120.
