Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault
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- 6.2.MOTIONS REGARDING BAIL OR PRE-TRIAL DETENTION
- 6.2.2.Motion to Continue c. 276 s. 58A Pre-trial Detention Hearing
- 6.2.3.Motion to Continue Defendant’s Detention Under c. 276 §58A Pre-trial Detention Hearing
- 6.2.4.Motion for Proposed Conditions of Release under M.G.L. c. 276, §42A
- 6.2.5.Motion to Revoke Bail
- 6.2.6.Motion to Exclude Time from that Attributed to the c. 276, §58A Pretrial Detention Order
- 6.2.7.Motion to Revoke Defendant’s c.276,§58A Release
6.MOTIONS6.1.TACTICSBe in the driver’s seat: proactively file motions. Review the sample motions provided and file all motions which would be helpful in your case. You are the driver. Discuss the facts with others in your office, evaluate the case in light of the legal standards set forth in the sample motions and memoranda, and proactively file appropriate motions.
Certain motions are critical tools in domestic violence cases.
There are advantages to filing certain motions at the same time.
With the exception of Discovery Motions, each potential motion requires individual analysis in each case.
6.2.MOTIONS REGARDING BAIL OR PRE-TRIAL DETENTION6.2.1.Motion for Order of c. 276 s. 58A Pretrial DetentionCOMMONWEALTH OF MASSACHUSETTS ____________, SS _____________COURT DEPARTMENT NO. ________
__________________________________ COMMONWEALTH’S MOTION FOR ORDER OF PRETRIAL DETENTION OR, IN THE ALTERNATIVE, CONDITIONAL RELEASE BASED ON DANGEROUSNESS Pursuant to M.G.L. c. 276, §58A, the Commonwealth moves that this Court order that the defendant be detained pending trial or, in the alternative, be released subject to conditions. As reasons therefore, the Commonwealth states that the defendant is charged with ________________________________ which is: _______ a felony which has as an element the use, attempted use, or threatened use of physical force against the person of another; or _______ any other felony which by its nature involves a substantial risk that physical force against the person of another may result (including burglary and arson, whether or not a person has specifically been placed at risk); or _______ a violation of an order pursuant to M.G.L. c. 208, §§§18, 34B, or 34C; M.G.L. c. 209, §32; M.G.L. c. 209A, §§§3, 4, or 5; M.G.L. c. 209C, §§15 or 20; or _______ an arrest and charge for a misdemeanor or felony involving “abuse” as defined in M.G.L. c. 209A, §1 or while a 209A order was in effect against the defendant; or ______ an offense for which M.G.L. c. 94C prescribes a mandatory minimum term of three years or more; or _______ a third or subsequent conviction of M.G.L. c. 90, §24. The Commonwealth requests a hearing on this motion. For the Commonwealth, _______________________ DISTRICT ATTORNEY by: _____________________ _________________________ Assistant District Attorney
NO. ________ COMMONWEALTH V. _______________________________________ COMMONWEALTH’S MOTION TO CONTINUE PRETRIAL DETENTION HEARING Now comes the Commonwealth in the above-captioned matter and moves, pursuant to M.G.L. c. 276 §58A, upon a showing of good cause, for a continuance of the pretrial detention hearing on this defendant to ______________ on the grounds that _________________________ _______________________________________________________________________ _______________________________________________________________________. Such date requested is within the three business day window allowed by statute in which the Commonwealth may seek to continue a pretrial detention hearing. For the Commonwealth, _______________________ DISTRICT ATTORNEY by: _____________________ _________________________ Assistant District Attorney _________________________ _________________________ _________________________ Dated: _________________ 6.2.3.Motion to Continue Defendant’s Detention Under c. 276 §58A Pre-trial Detention HearingCOMMONWEALTH OF MASSACHUSETTS ____________, SS _____________COURT DEPARTMENT NO. ________ COMMONWEALTH V. _______________________________________ COMMONWEALTH’S MOTION TO CONTINUE DEFENDANT’S DETENTION UNDER M.G.L. c. 276, §58A Now comes the Commonwealth in the above-captioned matter and respectfully requests that, pursuant to M.G.L. c. 276 §58A, this Honorable Court find that the defendant’s continued detention is for “good cause.” As grounds therefore, the Commonwealth relies upon the attached memorandum. For the Commonwealth, _______________________ DISTRICT ATTORNEY by: _____________________ _________________________ Assistant District Attorney _________________________ _________________________ _________________________ Dated: _________________ 6.2.4.Motion for Proposed Conditions of Release under M.G.L. c. 276, §42ACOMMONWEALTH OF MASSACHUSETTS ____________, S.S. DISTRICT COURT DEPARTMENT [COURT NAME ONLY] DIVISION DOCKET NO.: [insert docket number]
__________________________________________________________________ __________________________________________________________________
_________________________________________________ As reasons therefore, the Commonwealth states that the above-captioned matter involves assault and battery, trespass, threats to commit a crime, nonsupport, or some other crime which involves the infliction, or the imminent threat of infliction, of physical harm upon a person by such person’s family or household member as defined in M.G.L. c. 209A The Defendant is warned that should the Defendant commit a violation of this or any existing order of release, or commit a new crime while on release, the Defendant’s recognizance may be revoked and the Defendant may be held without bail pending disposition of his or her open matters. Respectfully Submitted, For the Commonwealth _____________________ DISTRICT ATTORNEY By: ________________________ ____________________________ ASSISTANT DISTRICT ATTORNEY Dated: __________________________ 6.2.5.Motion to Revoke BailCOMMONWEALTH OF MASSACHUSETTS ____________, SS _____________COURT DEPARTMENT NO. ________ COMMONWEALTH V. _______________________________________ COMMONWEALTH’S MOTION TO REVOKE DEFENDANT’S BAIL UNDER M.G.L. c. 276, §58 Now comes the Commonwealth in the above-captioned matter and moves this Honorable Court to revoke the defendant’s surety in the above-entitled matter pursuant to M.G.L. c. 276, §58. As grounds therefore, the Commonwealth states the following:
The Commonwealth requests a hearing on this matter. For the Commonwealth, _______________________ DISTRICT ATTORNEY by: _____________________ _________________________ Assistant District Attorney _________________________ 6.2.6.Motion to Exclude Time from that Attributed to the c. 276, §58A Pretrial Detention OrderCOMMONWEALTH OF MASSACHUSETTS __________, SS. DISTRICT COURT DEPARTMENT _________ DIVISION Dkt. No. COMMONWEALTH v. COMMONWEALTH’S MOTION TO EXCLUDE TIME FROM THAT ATTRIBUTED TO THE c.276,§58A PRETRIAL DETENTION ORDER
Now comes the Commonwealth in the above-captioned matter and moves, pursuant to G.L. c.276,§58A and the Massachusetts Rules of Criminal Procedure 36(b)(2), to exclude delay attributable to the defendant’s request for continuances from the ninety-day pretrial detention order. On _______, after hearing, the defendant was held without bail by Judge _______ pursuant to G.L. c.276,§58A. Argument Chapter 276,§58A provides that the defendant “shall be brought to trial as soon as reasonable possible, but in absence of good cause, the person so held shall not be detained for a period exceeding ninety days excluding any period of delay as defined in Massachusetts Rules of Criminal Procedure 36(b)(2).” G.L. c. 276,§58A(3). Rule 36 defines excludable periods, in relevant part, as follows: “delay resulting from interlocutory appeals;” “delay resulting from hearings on pretrial motions;” and “delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement.” Rule 36(b)(2)(A)(iv), (v), and (vii). The rule also provides that “[I]n computing any time limit other than an excluded period, the day of the act or event which causes a designated period of time to begin to run shall not be included. Computation of an excluded period shall include both the first and the last day of the excludable act or event.” Here, time attributed to the continuances agreed to and requested by the defendant for pretrial motions is excludable by definition. “When a claim is raised under rule 36, the docket and minutes of the clerk are prima facie evidence of the facts recorded therein.” Commonwealth v. Farris, 390 Mass. 300, 303-304 (1983), quoting Barry v. Commonwealth, 390 Mass. 285, 289 (1983). Here, the docket reflects continuance dates with no record of objections by the defendant to any of the continuance dates. The defendant requested further pre-trial hearings in order to obtain a tape of the c.276,§58A hearing to use at trial to impeach witnesses. Thus, said periods of time are excluded under Rule 36, and are not to be included in the ninety-day in the c.276,§58A calculation. It is well-settled that “[w]hen a defendant has agreed to continuances or failed to object to delays, he will be held to have acquiesced in them for rule 36 purposes.” Commonwealth v. McCants, 20 Mass. App. Ct. 294, 295 (1985); see also, Commonwealth v. Look, 379 Mass. 893, 898-899 (1980); Commonwealth v. Lauria, 411 Mass. 63, 67-69 (1991). Here, the defendant did not object to any delays and in fact requested the continuances. Moving to the calculation of the defendant’s detention, the case has been continued without objection during the following period:_________________. The case has been continued by at the defendant’s request during the following period: _____________________. Thus, all the time from ___________ until the present is time to be excluded as periods reflecting continuances without objection by defense and continuance periods agreed or requested by defense. “The heavier burden to ‘press [the] case through the criminal justice system’ remains upon the defendant.” Commonwealth v. McDonald, 21 Mass. App. Ct. 368, 374 (1986), quoting Barry v. Commonwealth, 390 Mass. at 296-297. The defendant cannot now object to the length of his detention, if he was responsible for the delay. Conclusion Therefore, the Commonwealth requests that this Honorable Court find that the time periods between ___________ until the present be excluded from the calculation of the ninety-day pretrial detention order. The Commonwealth requests a hearing on this motion. For the Commonwealth, _______________________ DISTRICT ATTORNEY by: _____________________ _________________________ Assistant District Attorney _________________________ Dated: _________________
COMMONWEALTH OF MASSACHUSETTS __________, S.S. ____________________COURT _____________DIVISION DOCKET NO.:
Now comes the Commonwealth, in the above-entitled matter and moves pursuant to M.G.L. c. 276, § 58B, and respectfully requests this Honorable Court:
Docket no.: Court: As reasons therefore, the Commonwealth states that: 1. The defendant was released on conditions under Chapter 276 sec. 58A on (DATE).
Respectfully Submitted For the Commonwealth, ______________________ DISTRICT ATTORNEY By: ________________ ________________________ Assistant District Attorney Download 1.82 Mb. Share with your friends:
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