In many instances, clients bring problems to practitioners that
raise both civil and criminal issues. A client could ask for advice
about how to collect on a personal loan made to an acquaintance who
paid off the loan with a check that bounced. Or a client could seek
help with getting back a $10,000 deposit she gave to a home
contractor who never started the home repair work. While it may be
tempting to advise these clients to proceed with a private-party
criminal claim because it will save attorney fees and costs
relating to litigating a civil case, you should carefully consider
the nature of the criminal process before advising your client to
pursue this avenue instead of seeking civil relief.
It would be prudent to have your client speak with the police
before proceeding to the courthouse. While the procedures may vary
from courthouse to courthouse, some magistrates make this
conversation a prerequisite as the police may wish to conduct their
own investigation of your client's claims and bring their own
complaint. Standard 3:06, District Court Standards of Judicial
Practice: The Complaint Procedure (2008)("The Complaint
Procedure").
Your client should be familiar with what information is
necessary to begin the criminal process. The criminal complaint
application will require your client to write out a narrative of
the claim that is signed under the pains and penalties of perjury.
The application also requires your client indicate exactly what
chapter and section of the law has been violated by the accused, as
well as the specific date of each offense. This information is not
only needed to properly inform the clerk and the accused of the
nature of the criminal claim, but is also necessary for entering
the case into the MassCourts computer docketing system. MassCourts
also requires additional information for particular crimes; for
example, a Conspiracy allegation mandates naming the conspirators
and the alleged underlying crime. Another important piece of
information your client should know is the birthdate of the
accused. Without this, if the complaint issues, then the charge
cannot be entered into the Criminal Offender Record Index, nor
could arrest warrants be processed in the Warrant Management
System.
Before the application papers are accepted for filing, your
client will meet with a magistrate to discuss the complaint
procedure and to determine if other resolutions would be advisable,
such as seeking relief with a civil complaint. Standard 3:03, The
Complaint Procedure. There is a $15 filing fee for misdemeanor
complaints and no filing fee for felony complaints. Although the
Clerk's Office must accept all complaint applications, an applicant
is not entitled to a show cause hearing before a magistrate.
Victory Distributors, Inc. v. Ayer Div. Of the Dist.Court
Dept., 435 Mass. 136 (2001); Standard 3:00, The Complaint
Procedure. If a show cause hearing is authorized, your client will
have the burden of satisfying the probable cause standard. You and
your client should expect the magistrate to attempt to resolve the
matter between the parties at the hearing. If an agreement is not
reached, the Magistrate will review your client's evidence and
decide whether probable cause exists. Private complainants have no
right to appeal a magistrate's decision on probable cause. Id., 435
Mass. at 143, Standard 3.00.
If the magistrate authorizes the issuance of a criminal
complaint, your client will have to return to court to sign the
complaint under the pains and penalties of perjury. At this point,
prosecution of the case is taken over by the Commonwealth and your
client becomes one of the Commonwealth's witnesses. Note that in
this capacity, your client will not be able to watch the trial if
the court makes a witness sequestration order. Also, neither you
nor your client will likely directly participate in any
negotiations with the accused, which could lead to disappointment
with the outcome of any plea agreement. Furthermore, particular
issues will arise if your client seeks restitution. In
Commonwealth v. Henry, 475 Mass. 117 (2016), the Supreme
Judicial Court has recently held that a sentencing court is
required to consider both the defendant's financial resources and
his ability to pay when ordering restitution. This potentially
affects both the amount of the restitution and the amount of time
the defendant has to pay it. Under Henry, it is possible
that the restitution amount ordered by a court will not fully
compensate your client's loss. Id. at 125. Moreover, a
court cannot extend a probationary term for the sole purpose of
satisfying restitution. Id. at 124. As a practical matter,
if probationary terms other than restitution are imposed and the
defendant later violates those terms, his probation could be
revoked and his punishment could include a term of incarceration.
If he is incarcerated, he would be relieved of all probation
obligations, including the obligation to pay the restitution owed
to your client. Should this happen after the civil statute of
limitations has expired, often three years, your client would be
barred from seeking civil relief.
Practitioners should make sure that their clients are fully
aware of the criminal process before they seek to file a private
criminal complaint. While clients may be upset with their home
contractor or an unreliable debtor, any satisfaction in seeing them
criminally prosecuted might pale in comparison to receiving
restitution. Therefore, if your client is primarily seeking to
recover monetary losses caused by the accused, then the criminal
road could lead to disappointment. In most instances, clients are
better served by a civil judgment that accrues yearly interest and
can be enforced through multiple collection avenues.