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In Massachusetts criminal proceedings, a prosecutor can file a motion with the court, pursuant to M.G.L. c. 276, § 58A, seeking either “an order of pretrial detention” or “release on conditions” for any felony offense that involves the use of force or the attempted or threatened use of force.

Section 1 of that statute gives an extensive list of offenses that could justify such a 58A motion.  Those offenses include, but are not limited to,  

  • Any felony that has as one of its elements the use, attempted use, or threatened use of force.
  • Any felony that creates a “substantial risk” of physical harm to another, e.g., burglary, arson, etc.,
  • Any violation of protective orders concerning divorce, abuse, or domestic relations,
  • Weapons violations,
  • Animal cruelty.

The motion will be heard by a judge during the defendant’s first appearance in either district or superior court.  During the hearing, the defendant has a right to counsel and may testify on his own behalf, cross-examine witnesses, and present any pertinent information he may have which challenges the motion.  The rules of evidence will not apply to information presented at the hearing.

Section 5 of the statute lists numerous factors that courts should consider when ruling on a 58A motion.  Those factors include, but are not limited to:

  • The nature of the case
  • The defendant’s personal history, e.g., employment, family ties, etc.
  • Risk to victims, witnesses, jurors, or the community
  • The defendant’s criminal record and his attendance at prior court proceedings
  • Pending orders against the defendant for abuse or domestic violence
  • Whether the defendant suffers from mental illness or drug addiction

If the court determines that the defendant does, in fact, pose a safety risk or if there is reason to believe the defendant will not appear at later court dates, the judge can issue a pretrial release order with any of the following conditions:

  • travel and “personal associations” can be limited
  • Communication with the victim or potential witnesses can be barred
  • A curfew may be imposed
  • A supervisor may be appointed
  • Drug and alcohol use can be banned
  • Bond may be required
  • Work or school attendance may be compulsory
  • Psychiatric or substance-abuse treatment may be imposed.

Additionally, the court can order “any other condition that is reasonably necessary to assure the appearance of the person as required or to assure the safety of any other person and the community.”

If, however, the prosecution establishes by “clear and convincing evidence that no conditions or release will reasonably assure the safety of any other person or the community”, the judge shall order the defendant’s confinement in a house of correction for the remainder of the legal proceedings.  Under such circumstances, the matter must be “brought to trial as soon as reasonably possible.”  Additionally, pretrial confined can last only 180 days if the order is issued by a superior court judge and just 120 days if issued by a district court judge.

If detention is ordered, the judge must also issue a written statement setting forth the reasons for his decision.

Anyone detained pursuant to a 58A motion may file a petition in superior court requesting that the matter be reviewed and overruled.  Within five days of the petition being filed, a superior court judge will hold a hearing and reconsider the original motion.  The superior court judge has the discretion to either uphold the decision to detain the defendant or release him either with conditions or on his own recognizance.

Lastly, a defendant being detained pursuant to M.G.L. c. 58A may file a motion with the court if new circumstances or evidence justifies asking the court to reconsider the defendant’s confinement.