A judge in the Quincy District Court allowed a motion to dismiss that I had argued today. My client had been charged with Breaking and Entering and the judge agreed with my argument that there was insufficient evidence to have ever charged him with the crime. This meritless criminal complaint caused even more hardship for my client than just the need to hire a lawyer and go to court; because he was on probation at the time that the break-in had occurred, the new charges against him had triggered a probation violation hearing in a separate court. I represented him there as well and the judge did not find him in violation of his probation based on these new allegations. The standard for finding a probationer in violation due to a new offense is extremely low; if the probation department shows by “a preponderance of evidence” that the probationer committed a new offense while on probation, then he can be found in violation and punished. Even weak allegations like the ones against my client run the risk of resulting in a probation violation.
A person may not be charged with a crime unless there is probable cause that the accused has committed that crime. Probable cause determinations in the district courts are made by Clerk-Magistrates but an indidvidual who has been charged may file a motion to dismiss arguing that the charges should never have issued. The Supreme Judicial Court ruled in Commonwealth v. DiBennadetto that if the application for a criminal complaint lacked probable cause that the accused had committed the crime, then the case must be dismissed. A superior court indictment may only be issued if a grand jury finds probable cause to support the allegations. Like in the district court, a person who has been indicted may move to dismiss the indictment(s) if it was not supported by probable cause pursuant to Commonwealth v. McCarthy.