Massachusetts High Court Requires Recording of Show Cause Hearings, Creating New Opportunities for Public Access

CLIENT ALERTS · September 19, 2019

By Jeffrey J. Pyle and Michael J. Lambert

On September 9, the Massachusetts Supreme Judicial Court (SJC) held that the Commonwealth’s district courts must electronically record “show cause hearings,” the closed-door proceedings held by clerk magistrates to determine whether there is probable cause to issue criminal charges. Previously, only one-third of district courts recorded such hearings. The SJC’s decision will enable the press and the public to seek access to these recordings if they show that the release would promote “transparency, accountability, and public confidence” in the judiciary.

The ruling came after the Boston Globe petitioned for access to show cause hearing records in cases where the clerk magistrates found probable cause that a crime had been committed, but nonetheless declined to issue a complaint. In a 2007 decision, the SJC held that show cause hearings are akin to non-public grand jury proceedings because their purpose is to determine probable cause. The Globe argued that the cases it was pursuing were different, because they amount to dispute resolution hearings held in secret, contrary to the presumption that courts should be open. The Globe’s argument was bolstered by wide disparities in the rates at which different clerk magistrates’ offices resolve applications for criminal complaints after a finding of probable cause, raising the specter of favoritism.

The SJC rejected the Globe’s petition that it be given presumptive access to this category of show cause hearings, maintaining the pre-existing rule that access can only be sought for particular cases on a showing that overcomes the presumption of secrecy. The show cause process, the court held, exists to protect the reputations of those not charged with a crime, so the “probable cause/no complaint” category of cases is especially worthy of protection.

However, the SJC exercised its supervisory authority over the trial courts to require that all show cause hearings be electronically recorded. A petition for access after the fact is frustrated, the court reasoned, if there is no recording to seek. It also ordered that basic statistics about each show cause hearing “relevant to potential concerns about favoritism and disparity of outcomes” be recorded and preserved, including the race and gender of the accused, whether the complaining party is a police officer or private citizen, the identities of attorneys of record, and the disposition of the hearing.

Courts, the SJC reiterated, must release these records “where the interests of justice so require,” as determined after weighing the “interests of transparency, accountability, and public confidence” against the “risk that disclosure would result in adverse collateral consequences to the accused.” Disclosure will be favored if the incident was already public or the accused is a public official.

The SJC’s incremental steps toward transparency provide a welcome opportunity for journalists. Within a year of the decision, trial courts must have implemented recording technology for all show cause hearings. The media can then petition for recordings of interest, and potentially gain greater insight into both the particular case and into this opaque corner of the Massachusetts criminal justice system.

To learn more about the information presented here, please contact Jeffrey J. Pyle at 617.456.8143 or jpyle@princelobel.com; or, Michael J. Lambert at 617.456.8116 or mlambert@princelobel.com, members of Prince Lobel’s Media and First Amendment Law Practice Group.