## Facts

- Kenneth Myers was charged in a Massachusetts municipal court with rape, assault by means of a dangerous weapon, and related breaking-and-entering offenses.
- A probable-cause hearing was held under G.L. c. 276, § 38 to determine whether Myers should be bound over to the Superior Court.
- The Commonwealth presented a single witness, the complaining witness.
- Defense counsel began cross-examination, including questions bearing on the complainant’s credibility and mental condition.
- The judge terminated cross-examination after stating he had heard enough to find probable cause and refused to hear any defense evidence.
- Defense counsel stated he wished to complete cross-examination and to introduce evidence, including medical and psychiatric material concerning the complainant.
- Myers sought extraordinary relief in the Supreme Judicial Court under G.L. c. 211, § 3 to vacate the probable-cause finding and require a hearing conducted in compliance with § 38.

## Issues

1. Whether G.L. c. 276, § 38 grants a defendant at a probable-cause hearing the right to cross-examine the Commonwealth’s witnesses and present evidence, and whether terminating cross-examination and excluding defense evidence violated those rights.
2. Whether the Supreme Judicial Court should use its superintendence power under G.L. c. 211, § 3 to review and correct an interlocutory ruling in a preliminary criminal proceeding.
3. Whether interpreting § 38 to permit a summary probable-cause determination without meaningful defense participation would raise due process or equal protection concerns.

## Decision

- The court held that the municipal court judge violated Myers’s statutory rights under G.L. c. 276, § 38 by cutting off cross-examination and refusing to allow defense evidence before finding probable cause.
- The court exercised its superintendence authority under G.L. c. 211, § 3, concluding intervention was warranted to protect substantive rights despite the interlocutory posture.
- The court vacated the finding of probable cause and remanded for a new probable-cause hearing conducted in compliance with § 38.
- The court resolved the case on statutory grounds and did not reach a final constitutional ruling, while noting potential constitutional concerns with a contrary interpretation.

## Legal Principles

- A probable-cause hearing under G.L. c. 276, § 38 is an adversary proceeding in which the defendant, assisted by counsel, has statutory rights to cross-examine the Commonwealth’s witnesses and to present evidence before a probable-cause determination is made.
- A judge’s authority to control the conduct of the hearing does not include denying the defendant these statutory rights in a manner that prevents meaningful testing of the Commonwealth’s showing.
- Although the probable-cause standard is less demanding than proof beyond a reasonable doubt, the screening function of the hearing is served by permitting adversary testing of evidence bearing on reliability and sufficiency.
- Under G.L. c. 211, § 3, the Supreme Judicial Court may intervene during ongoing criminal proceedings when necessary to protect substantive rights, even where ordinary review would occur only after final judgment.

## Conclusion

The Supreme Judicial Court required a new probable-cause hearing because the defendant’s statutory rights to cross-examine and present evidence were cut off before a probable-cause finding, and it used its superintendence power to correct that error at the preliminary stage.


Myers v. Commonwealth, 298 N.E.2d 819 (Mass. 1973)