Photo by Kindel Media on

Criminal charges are often brought in Massachusetts district courts after police officers submit an “application for complaint” to the district attorney’s office. The application typically includes the police report along with a list of charges that the arresting officers want the DA to bring against the defendant.

Attorney’s from the DA’s office will then go before a magistrate and present their complaint summarizing the facts of the case and the charges against the defendant. If the magistrate finds probable cause supporting the matters contained in the complaint, he will allow the charges to enter against the defendant.

The magistrate’s decision cannot be reconsidered by a judge. Instead, according to the Supreme Judicial Court in DiBennadetto v. Commonwealth, “[t]he defendant’s remedy is a motion to dismiss the complaint.

After the issuance of a complaint, a motion to dismiss will lie for

  1. failure to present sufficient evidence to the clerk-magistrate (or judge), or
  2. violation of the integrity of the proceeding, or
  3. any other challenge to the validity of the complaint.

Essentially, any meaningful defect in the DA’s complaint gives the defendant grounds to file a motion to dismiss.

To do this, the defendant must file a motion briefly setting forth which of the charges he is contesting and why he is contesting them. The motion must be accompanied with a “Memorandum of Law” presenting an in-depth legal argument for granting the motion to dismiss. Lastly, the defendant’s attorney or the defendant himself (if he is acting pro se) needs to file an “Affidavit” under the pains of perjury affirming the facts and claims made in his filings.