COMMONWEALTH vs. LAVONRENCE PERKINS.

BOTSFORD, J. This case raises the question whether a defendant who is charged initially by complaint with murder in the first degree is entitled to a preliminary or probable cause hearing in the District Court [Note 1] pursuant to the provisions of G. L. c. 276, § 38 (§ 38), and, if so, when the probable cause hearing

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described in § 38 must be held. [Note 2] We conclude that § 38 is applicable to such a defendant and provides the defendant with the right to a probable cause hearing as soon as practicable in the circumstances. For the reasons we shall discuss, we decline to adopt a bright-line rule that would require the Commonwealth to conduct the probable cause hearing within thirty days or another definite time frame, but we conclude that because the probable cause hearing is an important stage in a criminal proceeding, the Commonwealth must demonstrate good cause to justify any request by the Commonwealth to continue it.

Background. On May 7, 2010, Cordell McAfee was shot and killed on the front porch of a house in the Dorchester section of Boston. [Note 3] On December 20, 2010, a criminal complaint issued against the defendant charging him with the murder of McAfee and the unlawful carrying of a firearm. The defendant was arrested in Rhode Island on January 18, 2011, and a judge in the Dorchester Division of the Boston Municipal Court Department (District Court; see note 1, supra) arraigned the defendant on the charges on January 21, 2011.

At the defendant's arraignment, the judge scheduled a probable cause hearing to be held on February 17, 2011. See Mass. R. Crim. P. 7 (b) (4), as appearing in 461 Mass. 1502 (2012). [Note 4]

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On that date, the prosecutor requested a continuance. [Note 5] The judge granted the requested continuance and scheduled a second date for the probable cause hearing in thirty days, to be held on March 16, 2011. At the March 16 hearing, the prosecutor requested another thirty-day continuance with an explanation that the Commonwealth needed additional time to obtain deoxyribonucleic acid evidence; she asked for a probable cause hearing date of April 15, 2011. Over objection of the defendant, the judge granted the requested continuance and rescheduled the probable cause hearing for April 15. On March 16 as well, the defendant filed a motion to dismiss or for release, arguing that the successive continuances of the probable cause hearing violated his liberty interests, given that he remained in custody during these delays. The judge denied the motion.

Thereafter, on March 24, 2011, the defendant filed a petition in the county court pursuant to G. L. c. 211, § 3, seeking an order that a probable cause hearing be held in the District Court as soon as possible and not later than April 15, 2011, and requesting in the alternative that the single justice dismiss the pending complaint against the defendant. Before the defendant's petition was heard by the single justice, at the scheduled April 15 hearing in the District Court, the prosecutor requested another continuance. She argued that, due to delays reaching the witnesses, the Commonwealth was unable to complete the grand jury investigation, and she stated that the grand jury was scheduled to meet again on May 6, 2011. The defendant again objected to a continuance, and filed a renewed motion to dismiss. The judge granted the Commonwealth's requested continuance and denied the defendant's motion to dismiss, setting May 9, 2011, as the next date for the probable cause hearing. The grand jury returned an indictment on May 7, 2011, charging the defendant with murder in the first degree. The probable cause hearing in the District Court never took place. [Note 6]

Before the indictment was returned, the single justice heard

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the defendant's c. 211, § 3, petition on April 26, 2011, and on May 9, 2011, issued a memorandum of decision denying the requested relief. [Note 7] The defendant filed a timely appeal.

Discussion. 1. Mootness. As the defendant has been indicted and does not suggest that he would be entitled at this point either to a probable cause hearing or dismissal of the indictment, his petition for relief under G. L. c. 211, § 3, is moot. However, it is within the discretion of this court to answer questions that, due to circumstances, no longer may have direct significance to the parties but raise issues of public importance and, because of their nature, may be "capable of repetition, yet evading review." See Lockhart v. Attorney Gen., 390 Mass. 780, 782-783 (1984), quoting Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298 (1975), and cases cited. Cf. Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943).

Whether a person charged and held on a District Court complaint for murder in the first degree is entitled to a probable cause hearing in the District Court and, if so, the timing of such a hearing and the relationship between a person's right to that hearing and the Commonwealth's right to initiate grand jury proceedings are issues that implicate the liberty interests of all defendants who are so situated, and more generally are significant for the proper administration of the criminal justice system. These issues have been briefed fully by the parties, and we will consider them.

2. Probable cause hearings for defendants held on a complaint of murder. a. Introduction. It is useful to set out the text of the two statutes that give rise to the issues just summarized.

General Laws c. 276, § 38, provides:

"The court or justice [Note 8] 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. After the testimony

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to support the prosecution, the witnesses for the prisoner, if any, shall be examined on oath, and he may be assisted by counsel in such examination and in the cross examination of the witnesses in support of the prosecution. Nothing contained herein shall be construed to prohibit the enforcement of the waiver provisions of Rule 3 of the Massachusetts Rules of Criminal Procedure. A defendant charged with an offense as to which he has the right to be proceeded against by indictment may elect a probable cause hearing in accordance with Rule 3 of the Massachusetts Rules of Criminal Procedure, but in such event shall be deemed to have waived his right to be proceeded against by indictment." (Emphasis added.)

General Laws c. 263, § 4A (§ 4A), provides in relevant part:

"A defendant charged in the district court with an offense as to which he has the right to be proceeded against by indictment shall have the right, except when the offense charged is a capital crime, [Note 9] to waive that right, whereupon the court shall have as full jurisdiction of the complaint as if an indictment had been found. If a defendant is so charged and requests a probable cause hearing in district court, that request shall constitute a waiver of the right to be proceeded against by indictment and the prosecution may proceed upon the complaint. If a defendant waives the right to be proceeded against by indictment, a probable cause hearing shall be held in the district court unless the defendant waives the probable cause hearing or unless the prosecutor elects to proceed by indictment pursuant to the Massachusetts Rules of Criminal Procedure." (Emphasis added.)

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The single justice implicitly determined that § 38, with its provision for a probable cause hearing in the District Court, applied to the defendant. However, the single justice concluded that a District Court judge maintains discretion to continue a scheduled probable cause hearing, and he found no abuse of discretion in the continuances granted by the District Court judge in the defendant's case.

The defendant argues that the single justice committed an error of law in denying the defendant's request for an immediate probable cause hearing or dismissal of the District Court complaint. He contends that § 38 protects a defendant who is charged in the District Court but subject to being bound over to the Superior Court from being held in custody without a neutral assessment, within a short time after the prosecution actually begins, of whether there is probable cause to support the charges against him. [Note 10] In particular, the defendant points to § 38's requirement that a judge conduct a probable cause hearing to review the charges "as soon as may be," a time frame that he argues should be no more than thirty days from the date of arraignment. He views a limit of thirty days as consistent with (1) Mass. R. Crim. P. 7 (b) (4), as appearing in 461 Mass. 1501 (2012) (see note 4, supra), directing a District Court judge to schedule a probable cause hearing at the time of arraignment on any complaint that is beyond the jurisdiction of that court; and (2) G. L. c. 276, § 35, which prohibits at any one time the continuance beyond thirty days of any hearing or trial in the District Court involving a defendant held in custody. He contends that if any continuance beyond thirty days is permissible, it must only be in "exceptional circumstances" that do not include scheduling or completing grand jury presentations.

The Commonwealth, on the other hand, asserts that a defendant charged with murder in the first degree has no right to a probable cause hearing under § 38. The argument is that under

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both §§ 4A and 38, the right to a probable cause hearing only exists for a defendant who is authorized to, and does, waive his right to an indictment and elects in its stead a probable cause hearing; and that because under § 4A, a defendant charged with murder in the first degree is expressly prohibited from making such a waiver, he has no corresponding right to a probable cause hearing. We consider first the Commonwealth's claim. [Note 11]

b. Availability of probable cause hearings to defendants charged by complaint with murder in the first degree. Considering § 38 and § 4A together, we conclude that the Commonwealth's argument lacks merit. Section 38 by its terms provides for a probable cause hearing in cases where a defendant is charged with a crime in the District Court that lies beyond the jurisdiction of that court and for which the defendant is entitled to be proceeded against by indictment. See Corey v. Commonwealth, 364 Mass. 137, 140-141 (1973) (Corey); Myers v. Commonwealth, 363 Mass. 843, 846-847, 857 (1973) (Myers). See also Lataille v. District Court of E. Hampden, 366 Mass. 525, 528-529 (1974) (Lataille). In providing this statutory right, § 38 makes no distinction between a charge of murder in the first degree and any other crime, and indeed makes no mention of murder or a "capital crime" at all. It is true that the final two sentences of § 38, added in 1985, see St. 1985, c. 256, reference the waiver provisions of Mass. R. Crim. P. 3 as then in effect, see 378 Mass. 847 (1979), [Note 12] and specifically state that any election of a probable cause hearing in accordance with rule 3 operates as a waiver of the right to be proceeded against by indictment. But the same version of rule 3 also provided that a

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defendant charged with murder in the first degree (i.e., a "capital crime") was not permitted to waive indictment. Mass. R. Crim. P. 3 (b) (2), as appearing in 378 Mass. 847 . [Note 13] Accordingly, we read the waiver mandate added to § 38 in 1985 as simply inapplicable to a defendant in the position of the defendant here, i.e., a defendant charged with murder in the first degree; just as such a defendant was covered by and entitled to a probable cause hearing under the general terms of § 38 before 1985, he remained so thereafter.

Section 4A in relevant part essentially tracks the same waiver provisions that were incorporated into the original version of Mass. R. Crim. P. 3 and added by reference to § 38 in 1985. [Note 14] Thus, § 4A requires a defendant who is charged in the District Court with an offense for which he has a right to be proceeded against by indictment, other than murder in the first degree, to waive the indictment right in order to obtain a probable cause hearing in the District Court. Because the defendant here is charged with murder in the first degree, the waiver provision in § 4A is irrelevant and does not infringe on his independent right to a probable cause hearing under § 38. [Note 15]

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Both before and after the 1979 amendment to § 4A (see note 14, supra), this court consistently has interpreted § 38 and its probable cause hearing requirement to apply to defendants charged with murder in the first degree. See, e.g., Commonwealth v. Daye, 435 Mass. 463, 468-470 (2001); Commonwealth v. Fisher, 433 Mass. 340, 347 (2001); Commonwealth v. Santos, 402 Mass. 775, 786 (1988); Commonwealth v. Spann, 383 Mass. 142, 145 (1981); Lataille, 366 Mass. at 530-531. The Commonwealth's argument here does not persuade us to alter this established interpretation of § 38. We conclude, therefore, that while the defendant remained in custody pursuant to a District Court complaint for murder, § 38 applied to him and provided him with the right to a probable cause hearing in accordance with its terms. [Note 16] We therefore turn to § 38 to examine those terms.

c. Timing of the probable cause hearing under G. L. c. 276, § 38. As the Myers and Corey cases describe, probable cause hearings protect significant liberty interests of defendants who ultimately will be tried in the Superior Court. See Corey, 364 Mass. at 141; Myers, 363 Mass. at 847. The defendant points to these two cases as supporting, if not compelling, the conclusion that under § 38 he was entitled to a probable cause hearing in short order following his arraignment. [Note 17] But in both Myers and Corey, the defendants actually received probable cause hearings,

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and the court's focus was solely on the manner in which those hearings had been conducted; there was no issue raised in either case about what is central to the defendant's concerns here, namely, the timing of the probable cause hearing and the relationship between the timing of the hearing and the initiation of grand jury proceedings by the Commonwealth for the purpose of obtaining an indictment.

Section 38 directs that the probable cause hearing occur "as soon as may be" after arraignment, and this phrase must be interpreted in a manner consistent with the legislative purpose of that statute. See District Attorney for the N. Dist. v. School Comm. of Wayland, 455 Mass. 561, 568 569 (2009), quoting Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513 514 (1975). In Myers, 363 Mass. at 847, and Corey, 364 Mass. at 141, this court stated that the "primary function" of the § 38 probable cause hearing is to "screen out at this early but critical stage of the criminal process those cases that should not go to trial, thereby sparing individuals from being held for trial, and from being unjustifiably prosecuted." Myers, supra. See Corey, supra at 140-142. The dual requirements that defendants may only be held for trial where the magistrate determines that (1) a crime has been committed, and (2) there is probable cause to believe a defendant guilty of the crime charged, see G. L. c. 276, § 42, create "an effective bind-over standard" to eliminate groundless charges that should not go to trial. Corey, supra at 141. Myers, supra.

As set out in Myers, to establish probable cause under § 38, the Commonwealth must present sufficient credible evidence to meet the directed verdict standard, that is, "whether there is enough credible evidence to send the case to the jury." Myers, 363 Mass. at 850. See generally id. at 848-850. Meeting this standard requires the presentation of substantially more evidence than is necessary in most cases for an indictment. [Note 18] Practically speaking, therefore, "as soon as may be" must be interpreted in

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a manner that affords the Commonwealth enough time reasonably to marshal and present the quantity and quality of evidence that is necessary to meet the probable cause hearing's heightened probable cause standard. Interpreting the phrase as the defendant suggests, that is, by imposing a rigid thirty-day requirement in which the Commonwealth must be prepared to establish probable cause, would not meet this need.

What we have just stated about the meaning of "as soon as may be" is based on a consideration of the nature of the § 38 probable cause hearing. However, as § 38 expressly reflects, there are crimes for which a defendant has a right, constitutionally protected, to be proceeded against by indictment. Furthermore, as recognized by statute and court rule, the Commonwealth may elect to proceed by indictment even if the defendant would be willing to waive the right. See G. L. c. 263, § 4A; Mass. R. Crim. P. 3 (e), as appearing in 442 Mass. 1502 (2004). We have recognized that an indictment offers an "alternative means [to a probable cause hearing] for establishing probable cause to hold a defendant for trial." Lataille, 366 Mass. at 530-531. [Note 19] Given that a defendant and the Commonwealth each have a right

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respectively to be charged and to charge by indictment, it makes sense to construe the phrase "as soon as may be" in § 38 with the indictment alternative in mind; indeed, it is especially appropriate to do so in a case such as this, where, because the charge is murder in the first degree, the Commonwealth is required to proceed by indictment and the defendant cannot waive it. G. L. c. 263, § 4A.

In sum, we conclude that the phrase "as soon as may be" in § 38 is best interpreted to mean that the probable cause hearing is to be held as soon as reasonably practicable in the circumstances presented -- circumstances that may include, as here, the requirement that the Commonwealth proceed by indictment or, in a noncapital case, the election of the Commonwealth to do so. The phrase cannot be defined, as the defendant would have it, by establishing in advance a fixed number of days within which the hearing must be held, because the particular circumstances of each case will be different. [Note 20]

In construing the phrase "as soon as may be" in this manner, we do not intend to suggest that a judge is free to continue a scheduled probable cause hearing as a matter of course or simply based on a prosecutor's statement that the Commonwealth needs more time. The important purpose of the § 38 probable cause hearing -- to prevent the defendant from being held for trial on a groundless or unmeritorious charge, see Corey, 364 Mass. at 141; Myers, 363 Mass. at 847 -- remains a central consideration. The Commonwealth is not entitled to proceed at whatever pace it might choose, either in marshaling evidence to establish probable cause for the probable cause hearing or in presenting a case to the grand jury in order to secure an indictment. And a judge may not simply rubber stamp a Commonwealth's request for a continuance. Rather, if the Commonwealth seeks to continue

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the probable cause hearing beyond the date scheduled at arraignment or thereafter, the judge's responsibility is to make a meaningful inquiry into the specific reasons for the request, and to consider whether the Commonwealth has shown good cause for it. An active, ongoing grand jury investigation should be considered as a factor, but an ongoing grand jury investigation, taken by itself, is not necessarily sufficient to demonstrate good cause; among other factors, the amount of time the defendant has been held in custody and the time that has elapsed since arraignment should be weighed. Finally, in light of the bright-line rule set out in G. L. c. 276, § 35, [Note 21] where a defendant is being held in custody, any one continuance of the probable cause hearing may not exceed thirty days.

If the Commonwealth does not provide good cause for a continuance, as the single justice suggested, the judge should consider directing the Commonwealth to proceed with the probable cause hearing; alternatively, the judge might dismiss the complaint or at least consider bail. A dismissal, of course, "is not a bar to a subsequent indictment for the same offence." Burke v. Commonwealth, 373 Mass. 157, 159 (1977), quoting Commonwealth v. Hamilton, 129 Mass. 479, 481 (1880). Commonwealth v. Britt, 362 Mass. 325, 330 (1972). See Commonwealth v. Crowe, 21 Mass. App. Ct. 456, 471-472, cert. denied sub nom. Pirrotta v. Massachusetts, 479 U.S. 838 (1986) (nol pros of complaint does not ordinarily bar indictment).

Returning to the decision of the single justice, we conclude that he did not abuse his discretion or commit other error of law in denying the relief sought by the defendant. The single justice appeared to consider the existence of an ongoing grand jury investigation as perhaps a principal factor that would justify a

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continuance of the probable cause hearing, but he set out other important factors to consider in addition. [Note 22]

Conclusion. The defendant's appeal is dismissed as moot.

So ordered.

GANTS, J. (concurring, with whom Spina, J., joins). I agree with the court that the "important purpose" of the probable cause hearing described in G. L. c. 276, § 38 (§ 38), is "to prevent the defendant from being held for trial on a groundless or unmeritorious charge" by providing a judicial determination of probable cause. [Note Gants-1] Ante at 103, citing Corey v. Commonwealth, 364 Mass. 137, 141 (1973), and Myers v. Commonwealth, 363 Mass. 843, 847 (1973) (Myers). I also agree with the court that, under our existing jurisprudence, this so-called probable cause hearing requires the Commonwealth to prove more than probable cause to arrest. Myers, supra at 850 (probable cause to bind over case to Superior Court means judge "should view the case as if it were a trial and he were required to rule on whether there is enough credible evidence to send the case to the jury"). Because a prosecutor must meet this "directed verdict" standard, id., and because he must do so by presenting evidence that would be admissible at trial rather than reliable hearsay, id. at 849 n.6; see Paquette v. Commonwealth, 440 Mass. 121, 132 (2003), cert. denied, 540 U.S. 1150 (2004), I agree with the

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court that the obligation in § 38 to conduct a probable cause hearing " 'as soon as may be' must be interpreted in a manner that affords the Commonwealth enough time reasonably to marshal and present the quantity and quality of evidence that is necessary to meet the probable cause hearing's heightened probable cause standard." Ante at 101-102. And I recognize that, as a result of this interpretation, for all practical purposes, where the Commonwealth intends to indict a defendant, the defendant will be denied a probable cause hearing provided the prosecution proceeds with all deliberate speed to obtain an indictment.

I write separately to note that the only reason why it is reasonable to give a prosecutor so much leeway to delay a probable cause hearing is because we have declared that probable cause at a probable cause hearing does not mean probable cause to believe that the defendant has committed a crime but instead means proof established by admissible evidence that is legally sufficient to establish guilt beyond a reasonable doubt. [Note Gants-2] If "probable cause" at a probable cause hearing meant what it means at a grand jury proceeding, i.e., whether there is "sufficient evidence to find probable cause for arrest," Commonwealth v. LaVelle,

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414 Mass. 146, 149-150 (1993), quoting Commonwealth v. McGahee, 393 Mass. 743, 746-747 (1985), and if such a finding of probable cause could rest on reliable hearsay as it may at a grand jury proceeding, Commonwealth v. St. Pierre, 377 Mass. 650, 654-655 (1979), and cases cited, it would be practicable for a prosecutor to proceed with a probable cause hearing no later than thirty days after a defendant's initial appearance in cases where no indictment has yet been returned.

Under Federal law, a defendant charged with a felony or misdemeanor is entitled to a preliminary hearing [Note Gants-3] no later than twenty-one days after the initial appearance unless a grand jury indictment is returned before that date or the defendant agrees to the filing of a criminal information. Fed. R. Crim. P. 5.1(c) (2009). [Note Gants-4] At a Federal preliminary hearing, the prosecutor need only meet the more typical "probable cause" standard of providing "evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt," Coleman v. Burnett, 477 F.2d 1187, 1201-1202 (D.C. Cir. 1973), and this determination "may be based upon hearsay evidence in whole or in part." Fed. R. Crim. P. 5.1(e) advisory committee's note (2002 amendment); Fed. R. Crim. P. 5.1(a) advisory committee's note (1972). Consequently, under Federal law the preliminary hearing truly fulfils its "primary function . . . to screen out at this early but critical stage of the criminal process those cases that should not go to trial, thereby sparing individuals from being held for trial, and from being unjustifiably prosecuted." Myers, supra at 847. See Lataille v. District Court of E. Hampden, 366 Mass. 525, 530 (1974), quoting Coleman v. Alabama, 399 U.S. 1, 9 (1969) (holding "primary function of the preliminary hearing" is "screening out of 'an erroneous or improper prosecution' ");

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Coleman v. Burnett, supra at 1199 n.64, quoting S. Rep. No. 371, 90th Cong., 1st Sess. 34-35 (1967) (noting "fundamental purpose" of Federal preliminary hearing "is to prevent unjustified restraints of liberty").

Under our current interpretation of Massachusetts law, the probable cause hearing does not fulfil its intended function, because it almost never actually happens. As demonstrated by the attestations in eleven affidavits filed by criminal defense attorneys in this case, a probable cause hearing in a criminal case is virtually never conducted in the courts of Massachusetts; the only preliminary screening of a defendant's case is conducted by a grand jury, sometimes months after the initial appearance. For all practical purposes, in Massachusetts the probable cause hearing is a relic of the past, a theoretical entitlement that in practice is only rarely obtained.

The irony is that the reason why probable cause hearings have become as rare as Boston Red Sox championships is because, for the ostensibly benevolent purpose of protecting defendants from trial where the Commonwealth's case against them is too weak to obtain a conviction, we have made the prosecutor's burden of proof so high at such hearings, and have obligated the prosecutor to meet this burden with admissible evidence rather than reliable hearsay. See Myers, supra at 847, 850. In practice, our benevolence toward defendants has backfired: there is now virtually no judicial screening of criminal cases after arrest and a defendant may be held for months in custody before either a grand jury or a judge (almost invariably a grand jury) makes a determination of probable cause. Rather than helping defendants escape "groundless or unsupported charges" or "sparing individuals from being held for trial," id. at 847, the heightened standard we announced in Myers has had the unintended result of criminal defendants being held for extended periods without judicial screening to allow the Commonwealth sufficient time to meet the more demanding "directed verdict" standard or, more likely, to obtain a grand jury indictment. Where, as here, a defendant is charged with a capital crime, the Commonwealth is likely to have even more abundant "good cause" for requesting a continuance of the probable cause hearing, ante at 103-104, because the Commonwealth will need

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adequate time to conduct forensic testing and to subpoena key civilian witnesses before the grand jury to "lock in" their testimony before they testify at trial. In short, by setting the directed verdict standard announced in Myers as the standard for probable cause at a hearing under G. L. c. 276, §§ 38-42, we have set so rigorous a judicial screen that we now effectively have no judicial screening at all, and some criminal defendants will be unjustly held for an extended period of time even though the evidence against them could not survive an independent review of probable cause even under the Federal standard.

Like the Federal courts, a "substantial majority of jurisdictions reject[s] both the prima facie [directed verdict] standard and the mini-trial type of preliminary hearing," which allows consideration only of evidence that would be admissible at trial. 4 W.R. LaFave, J.H. Israel, N.J. King, & O.S. Kerr, Criminal Procedure § 14.3(a), at 326 (3d ed. 2007). [Note Gants-5] Apart from Massachusetts, the only State cited by LaFave as requiring the

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prosecution to meet a directed verdict standard at a probable cause hearing is Pennsylvania. Id. at § 14.3(a), at 324 n.31, citing Commonwealth v. Otis, 364 Pa. Super. 464 (1987). See Commonwealth v. Huggins, 575 Pa. 395, 402 (2003), cert. denied, 541 U.S. 1012 (2004), citing Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. Ct. 2001) ("evidence need only be such that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to go to the jury"). But see Commonwealth v. Wojdak, 502 Pa. 359, 389-390 (1983) (Hutchinson, J., concurring and dissenting) (noting he was "troubled" by majority's holding "that the Commonwealth at the preliminary hearing must present evidence which if accepted as true would warrant a judge in allowing the case to go to the jury," and opining that "it is unreasonable to require the Commonwealth to present a case sufficient to survive a demurrer at trial at a preliminary hearing" when such hearings must be held soon after arraignment).

The State of New York once imposed a heightened "prima facie case" standard at probable cause hearings, [Note Gants-6] but in 1970, the New York Legislature enacted the New York Criminal Procedure Law, which required only "reasonable cause to believe that the defendant committed a felony." N.Y. Crim. Proc. Law § 180.60 (McKinney 1975). Staff comments on the proposed New York criminal procedure law in 1967 addressed some of the reasons for this change:

"Comparing New York's [former 'prima facie case'] standard with those of many other jurisdictions, it will be

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found that New York require[d] much more in the way of proof to hold a person for a grand jury than do the laws of many other states and the federal law. This does not, in practice, really benefit a defendant, but rather leads to confusion and corner-cutting. Very often there may be sufficient evidence for the issuance of a warrant of arrest or for an arrest without a warrant, but not enough evidence for a prima facie case. This may cause an arrested person to be held for a considerable time while the case is being investigated so that a complaint which spells out a prima facie case can be prepared. . . . Meanwhile, the defendant's main interest is in obtaining his release from custody. . . . One objective of the procedure proposed here is to promote promptness of the hearing as a matter of practice as well as requiring such promptness as a matter of law. . . . In effect, if the evidence was sufficient for the issuance of a warrant of arrest or for an arrest without a warrant -- all other things being equal -- it should be sufficient to hold a person for the action of the grand jury."

Staff Comment, Proposed New York Criminal Procedure Law § 90.60, at 137-138 (1967), now codified at N.Y. Crim. Proc. Law § 180.60 (McKinney 1975). See 1969 N.Y. Sess. Laws 2345, 2348 (McKinney), Commission on Revision of the Penal Law and Criminal Code, Memorandum in Support and Explanation of Proposed Criminal Procedure Law (S. Int. 4624, A. Int. 6579) ("[t]o predicate reasonable cause as sufficient for the first screening process is hardly shocking, especially since most jurisdictions never require any more than that at any stage prior to trial").

It is important to note that, if we were to revisit our decision in Myers and join the Federal courts and the substantial majority of State jurisdictions in setting a traditional probable cause standard at these hearings and allowing probable cause to be based on reliable hearsay, the probable cause hearing would still differ meaningfully from a clerk-magistrate's issuance of an arrest warrant or complaint. While the probable cause standard would be the same, the judicial screening of probable cause would be performed by a judge, not a clerk-magistrate, and would be adversarial in nature, with the defendant having the opportunity to cross-examine prosecution witnesses and call his

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own witnesses. See G. L. c. 276, § 38; 4 W.R. LaFave, Criminal Procedure, supra at § 14.3(a), at 321.

Because no party in this case asked us to revisit our decision in Myers, and because the issue was not briefed by the parties or any amicus, I do not suggest that we should do so here. However, I suggest that the standard of proof and the requirement of admissible evidence we established in Myers need to be revisited in an appropriate case, because our present interpretation of the law governing probable cause hearings is resulting in criminal defendants being denied the opportunity to have a timely judicial determination as to whether there is probable cause to believe them guilty of a crime. Until we revisit Myers, for all practical purposes the only determination of probable cause after arrest will be made by a grand jury at a time determined by the prosecutor that, depending on the nature of the case, may be many months after the defendant's initial appearance. [Note Gants-7]

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IRELAND, C.J. (concurring). I agree entirely with the court. I write separately only to register my concerns about the concurring opinion that challenges the probable cause standard set forth in Myers v. Commonwealth, 363 Mass. 843 (1973). The concurrence acknowledges, as it must, that the issue it addresses -- whether the Myers standard should be changed -- was not raised or briefed by either side and is not essential to the resolution of this case. Ante at 112. It nevertheless goes on to discuss the issue in considerable detail and makes the case that the standard should be changed. This obviously would represent a significant change in Massachusetts law.

I do not think this court does its best work when we make up our minds and stake out our positions on significant legal issues like this, before the issues have even been raised by the parties, brought before us, and briefed and argued for our consideration. [Note Ireland-1] As an appellate court in an adversarial system, our principal responsibility is to consider the cases on appeal as they are presented to us by the parties; the very definition of an adversary system is that the parties, through their written and oral arguments, crystallize the issues for our consideration, and we then consider, digest, analyze, and test those arguments as we decide the cases. There are sound, time-tested reasons for this approach, not the least of which is that our decisions are better informed when the rules of law we discuss and apply (and sometimes create

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or modify) have been vetted through the adversarial process of trial and appeal. [Note Ireland-2] See F.M. Coffin, On Appeal: Courts, Lawyering, and Judging 258 (W.W. Norton & Co. 1994) (identifying the "five fundamental features of our American appellate system that work to confine judicial discretion").

Of course there are times when we might need to address an issue that was not raised and preserved in the trial court; or when we might discuss an issue that is not absolutely necessary to the disposition of the appeal; or when we might decide the occasional moot case, where the issues are important and would otherwise escape appellate review. But even then we should be chary about discussing and deciding issues without the benefit of hearing both sides.

That said, and even though I was one of the counsel of record for the prevailing petitioner in the Myers case, I am not averse to revisiting that decision if and when it becomes appropriate to do so. I will wait to hear the arguments from both sides, however, and from any amici who might have information to contribute, before I reach any conclusions about whether the Myers standard should be retained or changed.