Lead Opinion
This is a petition for a writ of certiorari and related relief brought under G. L. c. 211, § 3,
Although we will review interlocutory rulings in criminal cases under our general superintendence powers “only in the most exceptional circumstances,” Gilday v. Commonwealth,
The pertinent facts may be summarized briefly. On February 23, 1973, a preliminary examination was held
1. The rules governing the conduct of preliminary hearings in the Commonwealth are summarily set forth in G. L. c. 276, § 38, “The court or justice before whom a person is taken upon a charge of crime shall, as soon as may be, examine on oath the complainant and the witnesses for the prosecution, in the presence of the defendant, relative to any material matter connected with such charge. ... [T]he witnesses for the prisoner, if any,
The petitioner’s construction of the statute is supported by its express mandatory terms (“witnesses for the prisoner, if any, shall be examined” [emphasis supplied] ). “It is difficult to see how language could have been framed which would more clearly and categorically impose an absolute obligation.” Assessors of Springfield v. New England Tel. & Tel. Co.
2. The judge’s chief task at a preliminary hearing is
The United States Supreme Court recognized the importance of the preliminary hearing’s screening function in Coleman v. Alabama,
Since the examining magistrate’s chief task is to determine whether there is sufficient credible evidence to proceed to trial which justifies binding the defendant over, his determination of probable cause to bind over is somewhat analogous in function to the trial court’s ruling on a motion for a directed verdict as to whether there is sufficient evidence to send the case to the jury. Unfortunately, since this court has never defined the quantum of evidence needed to satisfy probable cause to bind over, some District Court judges have equated probable cause to bind over with probable cause for arrest (and search).
In finding probable cause for arrest, the examining magistrate has determined only that at the time of the arrest (or at the time when the warrant for arrest is rеquested), the “facts and circumstances within . . . [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offence.” Commonwealth v. Stevens,
Similarly, there is a “large difference” between probable cause to arrest [or search] and probable cause to bind over, “and therefore a like difference in the quanta and modes of proof required to establish them.” Brine-gar v. United States, supra. A judicial finding of probable cause to arrest validates only the initial decision to arrest the suspect, not the decision made later in the criminal process to hold the defendant for trial. Since many valid arrests are based on reliable hearsay information which could not be introduced at the defendant’s trial, probable cause to arrest does not automatically mean that the Commonwealth has sufficient competent legal evidence to justify the costs both to the defendant and to the Commonwealth of a full trial. Therefore the standard of probable cause to bind over must require a greater quantum of legally competent
Since the examining magistrate’s determination of the minimum quantum of evidence required to find probable cause to bind over is somewhat analogous in function to the court’s ruling on a motion for a directed verdict at trial as to whether there is sufficient evidence to warrant submission of the case to the jury, we have decided to adopt a “directed verdict” rule in defining the minimum quantum of credible evidence necessary to support a bind-over determination.
3. We must construe G. L. c. 276, § 38, in a manner which effectuates its primаry purpose of screening out “an erroneous or improper prosecution,” Coleman v. Alabama,
The Commonwealth argues that once a prima facie showing of probable cause has been made by prosecution testimony, the examining magistrate can end the hearing before the defendant’s attorney has had an opportunity to make a complete cross-examination of the prosecution witness or to present an affirmative defence. We fail to see how such a limited prоcedure could possibly effectuate the hearing’s primary function of screening out cases that should not go to trial. To require such minimal proof of probable cause would render the hearing, in many instances, an empty ritual with a foregone conclusion. If the examining magistrate could simply rest his finding of probable cause on the ipse dixit of the prosecution, there would be little need for defence counsel’s presence, let alone the defendant’s.
Construing statutory provisions similar to G. L. c. 276, § 38, the California Supreme Court expressly rejected the position taken by the Commonwealth in the instant case thаt the defendant’s statutory right to confront his accusers and present testimony on his own behalf
The primary function of the probable cause hearing of
The facts of the instant casе provide an excellent illustration of this point. The only witness at the petitioner’s probable cause hearing was the complaining witness who repeated her accusation that the petitioner had raped her. If the petitioner had been afforded his statutory rights, he would have introduced testimony challenging the complaining witness’s credibility and supporting his defence of a consensual sexual relationship.
“The credibility of witnesses at the preliminary hearing is, of course, a question of fact within the province of the committing magistrate to determine.” Rideout v. Superior Court of Santa Clara County,
4. In view of our interpretation of the statute, c. 276, § 38, we need not decide the petitioner’s contention that the due process requirements of the United States Constitution mandate that the defendant in a probable cause hearing shall have the right to cross-examine prosecution witnesses and present testimony in his own defence. See Grannis v. Ordean,
However, in construing legislative enactments, we must “take care to interpret them so as to avoid a danger of unconstitutionality.” United States v. Congress of Industrial Organizations,
In Goldberg v. Kelly,
The court declared that fundamental principles of due process require that the welfare recipient be given “an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.” Goldberg v. Kelly, supra, p. 268. The court noted that whenever important factual disputes were involved, these two procedural rights of confrontation and presentation of testimony must always be granted to insure that the hearing would be “appropriate to the nature of the case.” The Mullane case, supra, at 313. Therefore, we must reject the Commonwealth’s interpretation of c. 276, § 38, because it would permit a summary determination of probable cause which would not only frustrate the statute’s primary purpose of screening out “an erroneous or improper prosecution,” Coleman v. Alabama,
Our analysis of the purposes (and procedure) of the probable cause hearing leads us to conclude that the defendant must be given the opportunity to cross-
5. The Commonwealth argues in its brief (however, see fn. 15) that granting defendants inflexible statutory rights to cross-examine witnesses against them and to present testimony in their own behalf would transform the preliminary hearing into a full-blown trial with disastrous results to a criminal justice system that is already overburdened. However, past experience indicates that trial strategy usually prevents such a result as both the prosecution and the defence wish to withhold as much of their case as possible.
“[Njormally defense counsel will be more concerned at the preliminary with exploring rather than destroying the prosecution’s case. If they were aware of the defects in testimony capable of attack on cross-examination, most lawyers would prefer to save the attack for trial rather than tip their hand at this early stage.”
In those instances where the defendant does choose to exercise his statutory rights, the examining magistrate at the hearing has the same broad discretion as a trial judge in limiting the scope of cross-examination to relevant issues in dispute. See Commonwealth v. Makarewicz,
Since the summary manner in which the pеtitioner’s probable cause hearing was conducted denied the petitioner his statutory right to cross-examine witnesses and present evidence before the issue of probable cause was determined, the petitioner must be given a new preliminary hearing to determine whether there is probable cause to hold him on the charges pending against him. Therefore, pursuant to our powers of “general superin
So ordered.
Notes
Section 3, as amended by St. 1956, c. 707, § 1, reads in part: “The supreme judicial court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided; and it may issue writs of error, certiorari, mandamus, prohibition, quo warranta and all other writs and processes to such courts . . . which may be necessary to the furtherance of justice and to the regular execution of the laws. In addition to the foregoing, the justices of the supreme judicial court shall also hаve general superintendance of the administration of all courts of inferior jurisdiction . . . and it may issue such writs . . . and such orders, directions, and rules as may be necessary or desirable for the furtherance of justice, the regular execution of the laws, the improvement of the administration of such courts, and the securing of their proper and efficient administration.”
The petitioner’s counsel told the court that he had a witness whom he wanted to present in behalf of the defendant’s case, a medical report on the alleged victim which was made by the physician at the Boston City Hospital the morning of the alleged raрe, and a psychiatric evaluation of the complaining witness which was conducted by a staff psychiatrist of the Roxbury Court Clinic after a motion requesting such an examination prior to the probable cause hearing had been granted by a judge of that court.
See also Rule 6 of the Initial Rules of Criminal Procedure for the District Courts of Massachusetts, which states: “An unrepresented defendant who has pleaded not guilty to any complaint shall be advised by the judge at the time of his hearing or trial that on any material matter pertaining to the offense charged he has the following rights:— (a) to cross examine any witness offered by the proseсution; and (b) subject to cross examination to offer testimony by himself or any other witness” (emphasis supplied).
The examining magistrate must discharge the defendant if the prosecutor fails to introduce any evidence to support each element of the crime charged because in such a case the prosecutor has failed to show “that a crime has been committed.” See Pittman v. Superior Court of Los Angeles County,
Sincе the primary objective of the probable cause hearing is to screen out those cases where the legally admissible evidence of the defendant’s guilt would be insufficient to warrant submission of the case to a jury if it had gone to trial, the rules of evidence at the preliminary hearing should in general be the same rules that are applicable at the criminal trial. See Smith, Mass. Practice, Vol. 30, Criminal Practice and Procedure, § 688. “The probable cause hearing is conducted in the same.manner as any other trial in the District Court.” Unlike a finding of probable cause for arrest which can be based solely on reliable hearsаy testimony, probable cause to hold the defendant for trial must be based on competent testimony which would be admissible at trial. Compare Federal Rule 6.1 Preliminary Examination, 56 FRD 143. If it appears that added exceptions to the hearsay rule are desirable- to insure an effective probable cause hearing, specific rules may be developed as was done in O’Coin’s Inc. v. Treasurer of the County of Worcester,
According to a recent study sponsored by the American Bar Association, this “directed verdict” definition of probable cause is the most common screening standard practised in other States which have probable cause heаrings. See F. Miller, Prosecution: The Decision to Charge a Suspect With Crime (ABA study). See also Graham & Letwin, The Preliminary Hearing in Los Angeles, 18 U.C.L.A. Law Rev. 636 and American Law Institute, A Model Code of Pre-Arraignment Procedure (Tent. Draft No. 5) § 330.5 (3) (Model Code). “[Probable] cause to hold the defendant for trial exists . . . when the evidence introduced at the preliminary hearing would support a guilty verdict.”
California’s Penal Code, § 865, provides that at preliminary hearings “[t]he witness must be examined in the presence of the defendant and may be cross-examined in his behalf,” and § 866 provides, “When the examination of the witness on the part of the people is closed, any witnesses the defendant may produce, must be sworn and examined.”
The court held in Commonwealth v. Goldstein, supra, that a defendant’s failure to present witnesses in his behalf at the probable cause hearing could properly be brought to the jury’s attention at the defendant’s trial. But see St. 1912, c. 325 (now G. L. c. 278, § 23), which prohibits a prosecutor from bringing to the jury’s attention the fact that a defendant did not exercise his right to present any witnesses in his behalf at the probable cause hearing.
If permitted, the petitioner’s counsel would have introduced in evidence a psychiatric evaluation of the prosecutrix which noted that she “has a hysterical neurosis, a condition in which people might make up stories and then half believe them themselves. I would question the veracity of her statements.” Defence counsel also wished to introduce a “medical report on the prosecutrix which shows that she received no abdominal injury, no pelvic trauma and that a vaginal discharge test for spermatozoa performed by a physician at the Boston City Hospital the morning of the alleged rape indicated no spermatozoa.”
General Laws c. 276, § 41, requires the examining magistrate to discharge the prisoner from custody “[i]f it appears, upon the whole
“[T]he judicial role in pretrial screening involves weighing and judgment rather than a wooden comparison of the testimony with the elements of the crime. Although credibility ordinarily is a matter for the jury, and it is not expected that judges will normally resolve testimonial conflicts at the preliminary hearing, cases do occasionally arise in which a witness’s testimony is so weak or contradicted by sufficiently clear facts that the judge should have the power to dismiss the case.” Model Code p. 91.
Moreover, the Commonwealth’s interpretation would permit a procedure that would be subject to serious challenge on equal protection grounds. Past experience indicates that most District Court judges permit defendants (if they so desire) to present testimony in their own behalf at probable cause hearings. The Commonwealth’s interpretation of the statute, which gives defendants a right to do so only at the trial court’s discretion, would create a situation where some defendants would be afforded a full adversary hearing upon demand while others received summary hearings in which probable cause findings rested on the unchallenged ipse dixit of prosecution witnesses. Certainly, such a discrepancy in the type of probable cause hearing afforded defendants similarly situated would raise a serious constitutional question as to whether those defendants, who received summary hearings, were being denied the equal protection of the law.
For reasons similar to those stated by the United States Supreme Court in Adams v. Illinois,
Counsel for the Commonwealth conceded in oral argument that in most cases the defendant would not take advantage of his statutory right to present testimony in his behalf for the tactical reasons noted above.
Even in this situation, defence counsel may choose not to offer such evidence because a District Court’s decision “that there is no probable cause does not preclude further prosecution.” Commonwealth v. Britt,
Concurrence Opinion
(concurring in the result). I concur with the result reached in the opinion of the court. In my opinion the result is required by the clear and express language of G. L. c. 276, § 38, which entitles the petitioner to a hearing at the District Court level at which he is entitled to cross-examine the witnesses for the prosecution and to examine his own witnesses, and to have the assistance of counsel in so doing. I do not believe the statute can be interpreted in any other way, and therefore I do not believe it is necessary to consider whether the statute would violate the due process clause of the Fourteenth Amendment of the United States Constitution if it were interpreted in any other way. I recognize that the discussion of this subject in the court’s opinion is dictum, but I fear that it may be misconstrued as a suggestion of unconstitutionality of historic investigative and accusatory proceedings, such as those before a grand jury, in which the ultimate defendant is not permitted to participate.