Under M.G.L. c. 276, Section 58A a criminal defendant charged with certain crimes can be deemed dangerous by the court and held without the right to bail for up to 120 days. (See my post Criminal Pretrial Detention: “Dangerousness” and 58A Motions.)
Paragraph 4 of the statute states that
The hearing shall be held immediately upon the person’s first appearance before the court unless that person, or the attorney for the commonwealth, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed seven days, and a continuance on motion of the attorney for the commonwealth may not exceed three business days.
It’s important to understand that the defendant will be held without the right to bail during the continuance period.
58A detentions are often denied, though the initial detention of 3 to 7 days is almost always allowed.
To avoid jail, defendants usually want their hearing to take place at the first court appearance (typically arraignment).
Many prosecutors and even judges will claim that the defendant has no right whatsoever to contest the prosecutor’s 3-day continuance period. But this is incorrect.
The Supreme Judicial Court (SJC) has held that defendants have a right to be heard (though not present evidence) at the time a continuance is requested:
We conclude…that the continuance determination may be made after a hearing where a defendant is represented by counsel with the opportunity to make representations and arguments before the court, but without a right to cross-examine witnesses or present evidence.
Commonwealth v. Lester L., 445 Mass. 250, 251 (2005).
The fact that the SJC refers to a “continuance determination” strongly suggests that a 58A continuation can be denied.
Anyone facing a 58A should be aware of the SJC’s decision in Lester and ready to cite its key language to the judge if/when the prosecutor asks for a 3-day continuance.