Submitted by MA-Citizen on Wed, 07/22/2009 - 22:22
I filled out an Application for Criminal Complaint against my employer. I am now waiting for the Clerk-Magistrate to give a date for the 'Show Cause' hearing to determin if their are sufficient facts to proceed with the criminal charges. I have a witness who has important information but is refusing to go to the Clerk-Magistrate's Show Cause hearing. Can subpoenas be issued at this stage? Meaning, can I have a subpoena issued (GL c. 222 sec. 1) and force the witness to appear so she can testify about what she knows under oath? I know if the case went to trial subpoenas can be issued. But what about for Show Cause hearings? Thanks!
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Editor's Response
We are talking about a very informal process. Rule 3 of the Massachusetts Rules of Criminal Procedure states:
(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.
First a disclaimer: I have never worked as a criminal law attorney. However, I'm going to guess that subpoenaing witnesses (especially by the complainant) is frowned upon at probable cause hearings. But you can always call the clerk at the court and ask.