Massachusetts criminal defense
Dangerousness hearings in Massachusetts
A dangerousness hearing is where the prosecutor asks a judge to hold you in jail before trial, or release you only on strict conditions, because releasing you would endanger others. Under M.G.L. c. 276 § 58A, the judge can order detention only after finding by clear and convincing evidence that no conditions of release will reasonably assure the safety of others. Absent good cause, detention generally cannot exceed 120 days in the District Court or 180 days in the Superior Court.
What a 58A hearing is
Most people charged with a crime in Massachusetts are considered for release on bail under M.G.L. c. 276 § 58. Bail is about making sure you come back to court. Section 58A is different. It allows the Commonwealth to seek detention or release conditions based on dangerousness.
Only the Commonwealth can start the process, by filing a motion. A District Court or Superior Court judge then holds a hearing and decides whether you will be released on personal recognizance, released on conditions, or held until trial.
Which charges qualify
The prosecutor can seek a 58A hearing only for charges listed in the statute. They include:
- Felonies that involve the use, attempted use, or threatened use of physical force against another person
- Other felonies that by their nature involve a substantial risk of physical force, including burglary and arson
- Violations of abuse prevention and other protective orders under the statutes listed in § 58A
- Misdemeanors or felonies involving abuse as defined in M.G.L. c. 209A § 1, or committed while a c. 209A order was in effect
- Drug offenses under M.G.L. c. 94C that carry a mandatory minimum of 3 years or more
- Witness intimidation under M.G.L. c. 268 § 13B
- A third or subsequent OUI within 10 years of the previous conviction
- Certain firearm charges, including charges under M.G.L. c. 269 § 10(a), (c), and (m) and § 10G
If the charge is not on the list
If the charge does not appear in § 58A, the Commonwealth cannot use the dangerousness statute. The court can still set bail under § 58 to make sure you return to court.
Whether a particular felony counts as one involving physical force can be an important point to argue. A lawyer should look at the exact charge before the hearing starts.
When the hearing happens
The hearing is held immediately at your first appearance in court unless one side asks for more time. Except for good cause, a continuance requested by the defense can last up to seven days, and one requested by the prosecutor up to three business days.
You can be held during a continuance if there was probable cause to arrest you. That is why preparation has to start right away.
The clear and convincing standard
To order detention, the judge must find by clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of any other person or the community. The judge must consider the factors listed in the statute, including:
- The nature and seriousness of the danger your release would pose
- The nature and circumstances of the charge and the potential penalty
- Your family ties, employment record, and any history of mental illness
- Your reputation and your record of convictions
- Any illegal drug distribution or present drug dependency
- Whether you are on bail, probation, or parole in another case
- Whether the charge involves abuse or a protective order violation, and any history of such orders
- The risk that you would obstruct justice or threaten a witness or juror
The presumption of innocence still applies
The statute states that nothing in § 58A modifies or limits the presumption of innocence. A detention order is a decision about safety before trial, not a finding of guilt.
If the judge orders detention, the judge must issue written findings of fact and a written statement of the reasons.
Your rights at the hearing
At the hearing you have these rights.
- The right to a lawyer, and to an appointed lawyer if you cannot afford one
- The right to testify
- The right to present witnesses and other information
- The right to cross-examine witnesses who appear at the hearing
Evidence at the hearing
The rules of evidence that apply at trial do not apply here. The judge must consider hearsay in a police report or in a statement by the alleged victim or a witness.
Before you can summons the alleged victim or a member of the victim's family to testify, you must show the court a good faith reason to believe that the testimony will be material and relevant to showing that conditions of release can keep people safe. Whether you should testify yourself is a decision to make carefully with your lawyer.
Release conditions or detention up to 120 days
If the judge finds you can be released, the judge must choose the least restrictive conditions that will reasonably assure your appearance and the safety of others. The statute lists conditions such as avoiding contact with the alleged victim and witnesses, a curfew, limits on travel or residence, reporting to an agency, not possessing firearms, limits on alcohol and drug use, and treatment.
The judge may not impose a financial condition that results in your detention. If the judge orders you held, you must be brought to trial as soon as reasonably possible. Absent good cause, detention cannot exceed 120 days in the District Court or 180 days in the Superior Court, not counting delays excluded under Mass. R. Crim. P. 36(b)(2).
Review and reopening
A detention order is not always the last word. The hearing can be reopened before trial if there is new information or a change in circumstances that bears on whether conditions could keep others safe.
After a District Court decision, you can petition the Superior Court for review. The Superior Court must hear the petition within five business days of its filing.
Detention orders and release-on-conditions orders under § 58A are recorded in your probation record and in the statewide domestic violence record keeping system.
How a dangerousness hearing differs from bail
Both kinds of hearings can come up at the same arraignment. The arguments for release are different under each statute.
| Question | Bail under § 58 | Dangerousness under § 58A |
|---|---|---|
| What it protects | Your appearance in court | The safety of others and the community |
| Starting point | Release on personal recognizance unless that will not reasonably assure your appearance | A motion by the Commonwealth, only for listed charges |
| Money | Bail must take your finances into account. If it is likely to keep you held, the judge must give findings and reasons | No financial condition that results in detention |
| Holding you | Bail on an earlier case can be revoked for up to 60 days if the court finds probable cause that you committed a new crime while on release and that your release would seriously endanger others | Detention up to 120 days (District Court) or 180 days (Superior Court), absent good cause |
| Standard | Whether release will reasonably assure your appearance | Clear and convincing evidence that no conditions will reasonably assure the safety of others |
How we prepare for a 58A hearing
Because the hearing happens fast, we start as soon as we are hired. We gather proof of the things the judge must weigh, such as a stable address, work, family support, and treatment, and we build a realistic plan for conditions. We also study the police report closely, since the judge can rely on it.
Lisa DiLibero, Esq., handles the firm's Massachusetts matters. If someone you care about is facing a dangerousness hearing, call 401-621-9700.
Frequently asked questions
Absent good cause, up to 120 days in the District Court or 180 days in the Superior Court, not counting certain excluded delays. You must be brought to trial as soon as reasonably possible.
Yes. Except for good cause, the defense can get up to seven days and the prosecutor up to three business days. You can be held in the meantime if there was probable cause for the arrest.
You can petition the Superior Court to review a District Court decision, and it must hear the petition within five business days. The hearing can also be reopened if there is new information or a change in circumstances.
No. Bail under § 58 is about making sure you come back to court. A § 58A hearing is about the safety of others, and it can end with detention without bail.
Only if you first show the court a good faith basis to believe the testimony will be material and relevant to showing that conditions of release can keep people safe.
Yes. A detention order or an order of release on conditions is recorded in your probation record and in the statewide domestic violence record keeping system.
Next step
Facing a dangerousness hearing?
Time is short. Call 401-621-9700 or send us a message. The first conversation is free.