Part 8: COVID-19, 58A Hearings and Criminal Defense
When a person is arrested the person needs to be arraigned. One of most important things at arraignment is if the person is going to be released or sit in jail while his case is going on. The government can request cash bail and in some cases the prosecutor can ask a person to be held without bail under 58A for 120 days in district court or 180 days in superior court.
Under the Massachusetts criminal statute chapter 276 section 58A, the commonwealth can request that a person be held without bail if the defendant is charged with different offenses.
Holding a person without bail is a big deal. Every person accused of a crime has a constitutional right to be presumed innocent unless and until proved guilty beyond a reasonable doubt.
To complicate matters, in response to the COVID-19 health crisis, the SJC has shut down Massachusetts courts until April 7, other than for emergency hearings and matters. In order to comply with the SJC standing order every court is implementing different procedures to avoid personal contact and promoting social distancing.
When the prosecutor requests a person to be a held on 58A, the defendant is allowed to have a hearing. The hearing is not about whether a person is guilty of the charge, rather it is about dangerousness of the defendant if he or she were to be released. During the hearing both sides are allowed to submit evidence and put live witnesses on the stand. The defendant may choose to testify themselves, even though this is rare and potentially very dangerous. However, the defendant has a right to be in court and testify.
These hearings can be short or can last several hours depending on the amount of evidence and witnesses being heard in court. With the current social distancing requirements, the COVID-19 court protocols make 58A hearings a very difficult process. Some courts are moving these hearings to a video or telephone conference. However, many courts are not equipped to have these hearings over the phone or through video making the process time consuming and clunky. Often the telephone conferences make it difficult for the lawyers or the defendant to hear and without video the defendant may be confused with who is talking.
These COVID-19 challenges dull the constitutional rights of the defendant. Unless the defendant is fully aware of the process and can participate in their defense, telephone and even video conference can diminish a person's constitutional rights during the 58A process. Until this crisis is over every court is trying their best to deal with the situation, some courts will be fine while others may face constitutional challenges.