A defendant’s criminal record plays a major role throughout court proceedings. At arraignment it will be used to determine how much bail is necessary to ensure the defendant’s future appearances. If the defendant tenders a plea, his record will be used by the judge to determine how much leniency is justified. Lastly, if the defendant loses at trial, the judge will again look to the defendant’s record when imposing a sentence.
Because the defendant’s criminal record is so important, he will have a right to a copy of it at arraignment, when tendering a plea, and prior to trial. Here are the key rules governing a defendant’s access to his record.
Arraignment:
Rule 7(b)(3) of the Massachusetts Rules of Criminal Procedure states,
The court shall ensure that at or before arraignment… a copy of the defendant’s criminal record, if any, as compiled by the Commissioner of Probation is provided to the defense and to the prosecution…
According to Rule 7’s notes,
By referring to “the court” as the responsible agency for conducting all of the activities surrounding the arraignment, this subdivision is meant to include judges, special magistrates, and any Superior Court clerk-magistrates authorized to conduct arraignments.
Additionally, Rule 3(a) of the District/Municipal Court Rules of Criminal Procedure states,
At or before arraignment, the court shall ensure…that a copy of the defendant’s criminal record as compiled by the Commissioner of Probation pursuant to G.L. c. 276, § 100, if any, is provided to the defense and to the prosecution…
Pleas or Sentencing
Rule 12(e) of the Massachusetts Rules of Criminal Procedure provides that
Prior to sentencing…or to the judge’s decision to accept or reject a plea agreement…the judge, prosecutor, and counsel for the defendant shall have an opportunity to review the defendant’s criminal record…
Pretrial Discovery
Lastly, Rule 14(a)(D) of the Criminal Procedure Rules which regulates pretrial discovery, gives the defendant the right to his record as well as the criminal record for co-defendants and any witnesses that will testify at trial.
At arraignment the court shall order the Probation Department to deliver to the parties the record of prior complaints, indictments and dispositions of all defendants and of all witnesses…within 5 days of the Commonwealth’s notification to the Department of the names and addresses of its witnesses.
Although these rules are plainly written, not every court follows them to the letter. In most cases, the defendant or his attorney can get the criminal records directly from the probation office. While other courts may have the same records distributed through the clerk or the prosecutor.
Types of Criminal Records
There are three types of criminal records commonly used here in Massachusetts. There is the “BOP” produced by the Bureau of Parole. There is also the NCIC (National Crime Information Center) report which shows the defendants out-of-state charges. The most commonly used (and the easiest to understand) is the “CARI”, short for Court Activity Record Information.
The CARI is compiled by the Massachusetts Probation Department and contains only the defendant’s past and present charges within the Baystate. It shows all of the defendant’s charges as well as their current status (if active) or their dispositions (i.e., how the cases were resolved). The CARI also shows the number of times the defendant has defaulted/failed to appear in court. It even includes the number of his probation violations.