Massachusetts Rules of Criminal Procedure are followed in the District Courts, Municipal Courts, and Superior Courts throughout Massachusetts.

List of Rules For Criminal Procedure

Rule 1. TITLE; SCOPE

(a) Title. These rules may be known and cited as the Massachusetts Rules of Criminal Procedure. (Mass.R.Crim.P.)

(b) Scope. These rules govern the procedure in all criminal proceedings in the District Court, in all criminal proceedings in the Superior Court, in all delinquency and youthful offender proceedings in the Juvenile Court, District Court and Superior Court consistent with the General Laws, and in proceedings for post-conviction relief.

 

Rule 2. PURPOSE; CONSTRUCTION; DEFINITION OF TERMS

(a) Purpose; Construction. These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of expense and delay.

(1) Words or phrases importing the singular number may extend and be applied to several persons or things, words importing the plural number may include the singular, and words importing the masculine gender may include the feminine and neuter.

(2) When in these rules reference is made to a subdivision of a rule, that reference is to that subdivision and to any subdivisions thereof.

(b) Definition of Terms. In construing these rules the following words and phrases shall have the following meanings unless a contrary intent clearly appears from the context in which they are used:

(1) “Indigent” means any defendant who is unable to procure counsel with his funds as defined in Supreme Judicial Court Rule 3:10.

(2) “Indigent but able to contribute” means any defendant who is unable to procure counsel with his funds but is able to contribute funds for the cost of counsel as defined in Supreme Judicial Court Rule 3:10.

(3) “Capital Crime” means a charge of murder in the first degree.

(4) “Commonwealth” includes the prosecuting office or agency and all officers or agents responsible thereto.

(5) “Court” includes a judge, special magistrate, or clerk.

(6) “District Attorney” or “Attorney General” include assistant district attorneys or assistant attorneys general and other attorneys specially appointed to aid in the prosecution of a case.

(7) “District Court” includes all divisions of the District Court Department of the Trial Court, the Boston Municipal Court Department of the Trial Court, and the Juvenile Court Department of the Trial Court, or sessions thereof for holding court.

(8) “Interested Person” includes the adverse party, a co-defendant, and a witness who is to be deposed.

(9) “Judge” includes a judge of a court or one properly assigned to a court or a special magistrate when in the performance of those duties imposed and authorized by these rules.

(10) “Juvenile Court” means a division of the Juvenile Court Department of the Trial Court, or a session thereof for holding court.

(11) “Mailing” means the use of regular mail and shall not require registered or certified mail.

(12) “Prosecuting Attorney” means the attorney general or assistant attorneys general, district attorney, assistant district attorneys, special assistant district attorneys, or legal assistants to the district attorney, or other attorneys specially appointed to aid in the prosecution of a case.

(13) “Prosecutor” means any prosecuting attorney or prosecuting officer, and shall include a city solicitor, a police prosecutor, or a law student approved for practice pursuant to and acting as authorized by the rules of the Supreme Judicial Court.

(14) “Related Offense” means one of two or more offenses which are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan.

(15) “Return Day” means the day upon which a defendant is ordered by summons to first appear or, if under arrest, does first appear before a court to answer to the charges against him, whichever is earlier.

(16) “Special Magistrate” means any person who is appointed pursuant to, and empowered to administer those functions authorized by, rule 47 of these rules.

(17) “Summons” means

(A) criminal process issued to a person requiring him to appear at a stated time and place to answer to criminal charges; or

(B) process issued to a person requiring him to appear at a stated time and place to give testimony in a criminal proceeding; or

(C) process issued to a person requiring him to appear and produce at a stated time and place books, designated papers, documents, or other objects for use in a criminal proceeding.

(18) “Superior Court” means the Superior Court Department of the Trial Court, or a session thereof for holding court.

 

Rule 3. COMPLAINT AND INDICTMENT; WAIVER OF INDICTMENT; PROBABLE CAUSE HEARING

(a) Commencement of Criminal Proceeding. A criminal proceeding shall be commenced in the District Court by a complaint and in the Superior Court by an indictment, except that if a defendant is charged in the District Court with a crime as to which the defendant has the right to be proceeded against by indictment and the defendant has waived the right to an indictment pursuant to subdivision (c), the Commonwealth may proceed in the Superior Court upon the complaint.

(b) Right to Indictment. A defendant charged with an offense punishable by imprisonment in state prison shall have the right to be proceeded against by indictment except when the offense charged is within the concurrent jurisdiction of the District and Superior Courts and the District Court retains jurisdiction.

(c) Waiver of Indictment.

(1) Right to Waive Indictment. A defendant charged in a District Court with an offense as to which the defendant has the right to be proceeded against by indictment shall have the right, except when the offense charged is a capital crime, to waive indictment, unless the Commonwealth proceeds by indictment pursuant to subdivision (e) of this rule.

(2) Procedure for Waiving Indictment. The defendant may waive the right to be proceeded against by indictment by filing a written waiver of that right in the District Court prior to the determination to bind the case over to the Superior Court for trial. The District Court may for cause shown grant relief from that waiver. After the determination by the District Court to bind the case over to the Superior Court for trial, the defendant may waive the right to be proceeded against by indictment by filing a written waiver of that right, with the consent of the prosecutor, in the Superior Court.

(d) Transmission of Papers. If the defendant is bound over to the Superior Court for trial after a finding of probable cause or after the defendant waives a probable cause hearing, the clerk of the District Court shall transmit to the clerk of the Superior Court a copy of the complaint and of the record; the original recognizances; a list of the witnesses; a statement of the expenses and the appearance of the attorney for the defendant, if any is entered; the waiver of the right to be proceeded against by indictment, if any is executed; the pretrial conference report, if any has been filed; and the report of the department of mental health as to the mental condition of the defendant, if such report has been filed under the provisions of the General Laws.

(e) Indictment after Waiver. Notwithstanding the defendant’s waiver of the right to be proceeded against by indictment, the prosecuting attorney may proceed by indictment.

(f) Probable Cause Hearing. Defendants charged in a District Court with an offense as to which they have the right to be proceeded against by indictment and defendants charged in a District Court with an offense within the concurrent jurisdiction of the District and Superior Courts for which the District Court will not retain jurisdiction, have the right to a probable cause hearing, unless an indictment has been returned for the same offense. If the District Court finds that there is probable cause to believe that the defendant committed the crime or crimes alleged in the complaint, the court shall bind the defendant over to the Superior Court. If the District Court finds that there is no probable cause to believe that the defendant committed the crime or crimes alleged in the complaint, the court shall dismiss the complaint.

(g) The Complaint Process

(1) Procedure for Obtaining a Complaint. Any person having knowledge, whether first hand or not, of the facts constituting the offense for which the complaint is sought may be a complainant. The complainant shall convey to the court the facts constituting the basis for the complaint. The complainant’s account shall be either reduced to writing or recorded. The complainant shall sign the complaint under oath, before an appropriate judicial officer.

(2) Probable Cause Requirement. The appropriate judicial officer shall not authorize a complaint unless the information presented by the complainant establishes probable cause to believe that the person against whom the complaint is sought committed an offense.

 

Rule 3.1. DETERMINATION OF PROBABLE CAUSE FOR DETENTION

(a) No person shall be held in custody for more than twenty-four hours following an arrest, absent exigent circumstances, unless:

(i) a warrant or other judicial process authorizes the person’s detention,

(ii) a complaint has been authorized under Rule 3 (g), or

(iii) a determination of probable cause for detention has been made pursuant to subsection (b).

(b) A determination of probable cause for detention shall be made by an appropriate judicial officer. The appropriate officer shall consider any information presented by the police, whether or not known at the time of arrest. The police shall present the information under oath or affirmation, or under the pains and penalties of perjury. The police may present the information orally, in person or by any other means, or in writing. If presented in writing, the information may be transmitted to the appropriate judicial officer by facsimile transmission or by electronic mail or by such other electronic means as may be found acceptable by the court. The determination of probable cause for detention shall be an ex parte proceeding. The person arrested has no right to appear, either in person or by counsel.

(c) Where subsection (a) requires a determination of probable cause for detention, the police shall present the information necessary to obtain such determination to the appropriate judicial officer as soon as reasonably possible after the arrest, but no later than twenty-four hours after arrest, absent exigent circumstances.

(d) The judicial officer shall promptly reduce to writing his or her determination as to probable cause and notify the police. A copy of the written determination shall be transmitted to the police, by facsimile transmission or by other means, as soon as possible.

(e) The judicial officer shall apply the same standard in making the determination of probable cause for detention as in deciding whether an arrest warrant should issue. If the judicial officer determines that there is probable cause to believe the person arrested committed an offense, the judicial officer shall make a written determination of his or her decision which shall be filed with the record of the case together with all the written information submitted by the police.

(f) If there is not probable cause to believe that the person arrested committed an offense, the judicial officer shall order the person’s prompt release from custody. The order and a written determination of the judicial officer shall be filed in the District Court having jurisdiction over the location of the arrest, together with all the written information submitted by the police. These documents shall be filed separately from the records of criminal and delinquency cases, but shall be public records.

 

Rule 4. FORM & CONTENTS OF COMPLAINT OR INDICTMENT; AMENDMENT

(Applicable to District Court and Superior Court)

(a) Contents of Indictment or Complaint. An indictment and a complaint shall contain a caption as provided by law, together with a plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof.

(b) Subscription of Application for Issuance of Process. An application for issuance of process may be subscribed by the arresting officer, the police chief, or any police officer within the jurisdiction of a crime, a prosecutor, or a private person.

(c) Indictment Based Upon Secondary Evidence. An indictment shall not be dismissed on the grounds that the evidence presented before the grand jury consisted in whole or in part of the record from the defendant’s probable cause hearing or that other hearsay evidence was presented before the grand jury.

(d) Amendment. Upon his own motion or the written motion of either party, a judge may allow amendment of the form of a complaint or indictment if such amendment would not prejudice the defendant or the Commonwealth.

 

Rule 5. THE GRAND JURY

(a) Summoning Grand Juries. As prescribed by law, the appropriate number of jurors shall be summoned in the manner and at the time required, from among whom the court shall select not more than twenty-three grand jurors to serve in said court as long as and at those specific times required by law, or as required by the court. The regular grand jury shall be called upon and directed to sit by the Chief Justice of the Superior Court Department whenever within his or her discretion the conduct of regular criminal business and timely prosecution within a particular county so dictate. Notwithstanding the foregoing, special grand juries shall be summoned in the manner prescribed by the General Laws.

(b) Foreperson, Foreperson Pro Tem, Clerk, Clerk Pro Tem. After the grand jurors have been impanelled they shall retire and elect one of their number as foreperson. The foreperson and the prosecuting attorney shall have the power to administer oaths and affirmations to witnesses who appear to testify before the grand jury, and the foreperson shall, under his or her hand, return to the court a list of all witnesses sworn before the grand jury during the sitting. If the foreperson is unable to serve for any part of the period the grand jurors are required to serve, a foreperson pro tem shall be elected in the same manner as provided herein for election of the foreperson. The foreperson pro tem shall serve until the foreperson returns or for the remainder of the term if the foreperson is unable to return. The grand jury may also appoint one of their number as clerk to be charged with keeping a record of their proceedings, and, if the grand jury so directs, to deliver such record to the attorney general or district attorney. If the clerk is unable to serve for any part of the period the grand jurors are required to serve, a clerk pro tem may be appointed.

(c) Who May Be Present. Attorneys for the Commonwealth who are necessary or convenient to the presentation of the evidence, the witness under examination, the attorney for the witness, and such other persons who are necessary or convenient to the presentation of the evidence may be present while the grand jury is in session. The attorney for the witness shall make no objections or arguments or otherwise address the grand jury or the prosecuting attorney. No witness may refuse to appear because of unavailability of counsel for that witness.

(d) Secrecy of Proceedings and Disclosures. The judge may direct that an indictment be kept secret until after arrest. In such an instance, the clerk shall seal the indictment and no person may disclose the finding of the indictment except as is necessary for the issuance and execution of a warrant. A person performing an official function in relation to the grand jury may not disclose matters occurring before the grand jury except in the performance of his or her official duties or when specifically directed to do so by the court. No obligation of secrecy may be imposed upon any person except in accordance with law.

(e) Finding and Return of Indictment. An indictment may be found only upon the concurrence of twelve or more jurors. The indictment shall be returned by the grand jury to a judge in open court.

(f) No Bill; Discharge of Defendant. The grand jury shall during its session make a daily return to the court of all cases as to which it has determined not to present an indictment against an accused. Each such complaint shall be endorsed “no bill” and shall be filed with the court. If upon the filing of a no bill the accused is held on process, he or she shall be discharged unless held on other process.

(g) Deliberation. The prosecuting attorney shall not be present during deliberation and voting except at the request of the grand jury.

(h) Discharge. A grand jury shall serve until the first sitting of the next authorized grand jury unless it is discharged sooner by the court or unless its service is extended to complete an investigation then in progress.

 

Rule 6. SUMMONS TO APPEAR; ARREST WARRANT

(Applicable to District Court and Superior Court)

(a) Issuance of Process.

(1) Summons. A defendant not under arrest or otherwise in custody shall, except as provided in subdivision (a)(2) of this rule, be notified of the criminal proceedings against him and of the date of the return day by means of a summons. A copy of the complaint or indictment shall accompany the summons. If the accused is a juvenile, a summons and copy of the complaint or indictment shall also be served upon the parent or legal guardian of the juvenile or upon the person with whom the juvenile resides. Such notice shall also advise the defendant to report in person to the probation department before the return day.

(2) Warrant. The District Court may authorize the issuance of a warrant in any case except where the accused is a juvenile less than twelve years of age. Upon the return of an indictment against a defendant, the Superior Court may authorize the issuance of a warrant. The decision to issue a warrant may be based upon the representation of a prosecutor made to the court that the defendant may not appear unless arrested. If a defendant fails to appear in response to a summons or for any reason is not amenable to service, the prosecutor may request that a warrant issue or may resummon the defendant.

(b) Form.

(1) Warrant. An arrest warrant issued pursuant to this rule shall be signed by the official issuing it and shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. The warrant shall recite the substance of the offense charged in the complaint or indictment. It shall command that the defendant be arrested and brought before the court.

(2) Summons. A summons shall be in the same form as a warrant except that it shall summon the defendant to appear before the court at a stated time and place.

(c) Service or Execution; Return.

(1) By Whom. A summons may be served in the manner provided by subdivision (c)(3) of this rule by any person authorized by the General Laws to serve criminal process. A warrant shall be directed to and executed by an officer authorized by the General Laws to serve criminal process.

(2) Territorial Limits. A summons may be served or a warrant executed at any place within the Commonwealth.

(3) Manner. A summons shall be served upon a defendant by delivering a copy to him personally, or by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by mailing it to the defendant’s last known address. A warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in his possession at the time of the arrest, but upon request he shall show the warrant to the defendant as soon as possible. If the officer does not have the warrant in his possession at the time of the arrest, he shall then inform the defendant that a warrant has issued and of the offense charged, but if the officer does not then know of the offense charged, he shall inform the defendant thereof within a reasonable time after arrest.

(4) Return. On or before the return day, the person to whom a summons was delivered for service shall make return thereof to the issuing court. The clerk shall maintain a list of those summonses returned unserved which shall include a statement of the efforts made by the person to whom the summonses were delivered for service to serve them. If a summons is mailed pursuant to subdivision (c)(3) of this rule and returned, the clerk shall record that fact upon the list. The officer executing a warrant shall make return thereof to the issuing court. At the request of the prosecutor any unexecuted warrant shall be returned to the issuing court and may be cancelled by that court upon its own motion or upon the motion of the prosecutor. At the request of the prosecutor made at any time while a complaint or an indictment is pending, a summons returned unserved or a warrant returned unexecuted and not cancelled may be delivered to an authorized person for service or execution.

(d) Default.

(1) Costs. A judge may order that expenses incurred as a result of the entry of a default against a defendant are to be assessed as costs against the defendant.

(2) Preservation of Testimony. If counsel for a defendant is present upon the entry of a default against the defendant and if the judge finds that to require the attendance at a later time of a witness then present in court would constitute a hardship upon the witness because of age, infirmity, illness, profession or other sufficient reason, the judge may order that the testimony of the witness be taken and preserved for subsequent use at trial or any other proceeding. The witness shall be examined in open court by the party on whose behalf he is present and the adverse party shall have the right of cross-examination. The expense of taking and preserving the testimony may be assessed as costs against the defendant.

 

Rule 7. ARRAIGNMENT [effective June 1, 2012]

(a) Time of Arraignment; Probation Interview; Indigency and Bail Reports

(1) Upon Arrest or Summons. A defendant who has been arrested and is not released shall be brought for arraignment before a court if then in session, and if not, at its next session. A defendant who receives a summons or who has been arrested but is thereupon released shall be ordered to appear before the court for arraignment on a date certain.

(2) Arrest of a Juvenile. Upon the arrest of a juvenile, the arresting officer shall notify the parent or guardian of the juvenile and the probation office.

(3) Probation Interview. On the day of the arraignment, the probation department shall interview the defendant; the probation department shall report to the court the pertinent information reasonably necessary to determine the issues of bail and indigency.

(b) Arraignment Procedure.

(1) Notice; Plea; and Bail. The court shall:

(A) read the charges to the defendant in open court, except that the reading of the charges in open court may be waived by the defendant if he or she is represented by counsel;

(B) enter the defendant’s plea to the charges;

(C) inform the defendant of all warnings and advisories required by law; and,

(D) determine the conditions of the defendant’s release, if any.

(2) Appointment of Counsel. If the court finds that the defendant is indigent or indigent but able to contribute and has not knowingly waived the right to counsel under the procedures established in Supreme Judicial Court Rule 3:10, the Committee for Public Counsel Services shall be assigned to provide representation for the defendant.

(3) Provision of Criminal Record; Preservation of Evidence. The court shall ensure that at or before arraignment, (i) a copy of the defendant’s criminal record, if any, as compiled by the Commissioner of Probation is provided to the defense and to the prosecution, and (ii) the parties are afforded an opportunity to move for the preservation of evidence pursuant to Rule 14(a)(1)(E).

(4) Order Scheduling Pretrial Proceedings. At a District Court arraignment on a complaint which is outside of the District Court’s final jurisdiction or on which jurisdiction is declined, the court shall schedule the case for a probable cause hearing. In all other District and Superior Court cases the court shall issue an order at arraignment requiring the prosecuting attorney and defense counsel to (1) engage in a pretrial conference on a date certain, and (2) appear at a pretrial hearing on a specified subsequent date.

(c) Appearance of Counsel.

(1) Filing. An appearance shall be entered by the attorney for the defendant and the prosecuting attorney on or before the arraignment. The appearance may be entered either by personally appearing before the clerk or by submitting an appearance slip, which shall include the name, Board of Bar Overseers number, address, and telephone number of the attorney. An attorney appearing on behalf of an organization shall also file with the court proof of the attorney’s authorization to represent the organization.

(2) Effect; Withdrawal. An appearance shall be in the name of the attorney who filed the appearance and shall constitute a representation that the attorney shall represent the defendant for trial or plea or shall prosecute the case, except that, if at the arraignment such a representation cannot be made and no contrary legal restriction applies, (1) the court may permit an appearance to be entered by an attorney to represent the defendant or prosecute the case for such time as the court may order, and (2) the court shall permit an appearance in the name of the prosecuting agency, which shall constitute representations that the agency will prosecute the case, will ensure that throughout the duration of the appearance a prosecutor is assigned to the case, and upon request of the court or a party will identify the prosecutor assigned to the case. If the attorney who files an appearance for the defendant on or before the arraignment wishes to withdraw the appearance, he or she may do so within fourteen days of the arraignment, provided that the attorney who shall represent the defendant at trial files an appearance simultaneously with such withdrawal; thereafter no appearance shall be withdrawn without permission of the court. The appearance of the prosecuting officer shall be withdrawn only with permission of the court.

(3) Notice. A copy of all appearances and withdrawals of appearance shall be filed and shall be served upon the adverse party pursuant to Rule 32.

 

Rule 8. ASSIGNMENT OF COUNSEL

(Applicable to District Court and Superior Court)

If a defendant charged with a crime for which a sentence of imprisonment or commitment to the custody of the Department of Youth Services may be imposed initially appears in any court without counsel, the judge shall follow the procedures established in G. L. c. 211D and in Supreme Judicial Court Rule 3:10.

 

Rule 9. JOINDER OF OFFENSES OR DEFENDANTS

(Applicable to District Court and Superior Court)

(a) Joinder of Offenses.

(1) Related Offenses. Two of more offenses are related offenses if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan.

(2) Joinder of Related Offenses in Complaint or Indictment. If two or more related offenses are of the same or similar character, they may be charged in the same indictment or complaint, with each offense stated in a separate count.

(3) Joinder of Related Offenses for Trial. If a defendant is charged with two or more related offenses, either party may move for joinder of such charges. The trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice.

(4) Joinder of Unrelated Offenses. Upon the written motion of a defendant, or with his written consent, the trial judge may join for trial two or more charges of unrelated offenses upon a showing that failure to try the charges together would constitute harassment or unduly consume the time or resources of the parties. The trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice.

(b) Joinder of Defendants. Two or more defendants may be joined in the same indictment or complaint if the charges against them arise out of the same criminal conduct or episode or out of a course of criminal conduct or series of criminal episodes so connected as to constitute parts of a single scheme, plan, conspiracy or joint enterprise. The defendants may be charged separately or together in one or more counts; all of the defendants need not be charged in each count.

(c) Consolidation of Offenses or Defendants on Motion of Court. The trial judge may order two or more indictments or complaints to be tried together if the offenses and the defendants, if more than one, could have been joined in a single indictment or complaint. The procedure shall be the same as if the prosecution were under a single indictment or complaint.

(d) Relief From Prejudicial Joinder.

(1) In General. If it appears that a joinder of offenses or of defendants is not in the best interests of justice, the judge may upon his own motion or the motion of either party order an election of separate trials of counts, grant a severance of defendants, or provide whatever other relief justice may require.

(2) Motion by the Defendant. A motion of the defendant for relief from prejudicial joinder shall be in writing and made before trial and shall be supported by an affidavit setting forth the grounds upon which any alleged prejudice rests, except that a motion for severance may be made before or at the close of all the evidence if based upon a ground not previously known.

(e) Conspiracy. An indictment or complaint for conspiracy to commit a substantive offense shall not be tried simultaneously with an indictment or complaint for the commission of the substantive offense, unless the defendant moves for joinder of such charges pursuant to subdivision (a) of this rule.

 

Rule 10. CONTINUANCES

(Applicable to District Court and Superior Court)

(a) Continuances.

(1) After a case has been entered upon the trial calendar, a continuance shall be granted only when based upon cause and only when necessary to insure that the interests of justice are served.

(2) The factors, among others, which a judge shall consider in determining whether to grant a continuance in any case are:

(A) Whether the failure to grant a continuance in the proceeding would be likely to make a continuation of the proceeding impossible, or result in a miscarriage of justice.

(B) Whether the case taken as a whole is so unusual or so complex, because of the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate preparation of the case at the time it is scheduled for trial.

(C) Whether the overall caseload of defense counsel routinely prohibits his making scheduled appearances, whether there has been a failure of diligent preparation by a party, and whether there has been a failure by a party to use due diligence to obtain available witnesses.

(3) An attorney who is to be otherwise engaged in a trial, evidentiary hearing, or appellate argument so as to require a continuance shall notify the court and the adverse party or the attorney for the adverse party of such conflicting engagement not less than twenty-four hours before the scheduled appearance, or within such other time as is reasonable under the circumstances.

(4) A motion for a continuance may include a request that the court rule on the motion without a hearing. If such a motion is filed at least three court days prior to the scheduled appearance or trial date and indicates that all parties have agreed to the continuance, the court shall, prior to the scheduled date, rule on the motion without a hearing unless it deems a hearing to be necessary. In any other case, the court may in its discretion rule on a continuance motion without a hearing, provided that all parties have had an adequate opportunity to file an opposition to the motion. If the court continues the case without a hearing, defendant’s counsel shall inform the defendant of the revised date. Any motion filed pursuant to this subdivision shall provide one or more proposed continuance dates and state all supporting grounds, and any factual allegations shall be supported by affidavit.

(b) Assessment of Costs. When a continuance is granted upon the motion of either the Commonwealth or the defendant without adequate notice to the adverse party, causing the adverse party to incur unnecessary expenses, a judge may in his discretion assess those expenses as costs against the party or counsel requesting the continuance.

(c) Preservation of Testimony. A judge may order as a condition upon the granting of a continuance that the testimony of a witness then present in court be taken and preserved for subsequent use at trial or any other proceeding. The witness shall be examined in open court by the party on whose behalf he is present and the adverse party shall have the right of cross-examination. The expense of taking and preserving the testimony shall be assessed as costs against the party requesting the continuance.

 

Rule 11. PRETRIAL CONFERENCE AND PRETRIAL HEARING

(a) The Pretrial Conference. At arraignment, except on a complaint regarding which the court will not exercise final jurisdiction, the court shall order the prosecuting attorney and defense counsel to attend a pretrial conference on a date certain to consider such matters as will promote a fair and expeditious disposition of the case. The defendant shall be available for attendance at the pretrial conference. The court may require the conference to be held at court under the supervision of a judge or clerk-magistrate.

(1) Conference Agenda. Among those issues to be discussed at the pretrial conference are:

(A) Discovery and all other matters which, absent agreement of the parties, must be raised by pretrial motion. All motions which cannot be agreed upon shall be filed pursuant to Rule 13(d).

(B) Whether the case can be disposed of without a trial.

(C) If the case is to be tried, (i) the setting of a proposed trial date which shall be subject to the approval of the court and which when fixed by the court shall not be changed without express permission of the court; (ii) the probable length of trial; (iii) the availability of necessary witnesses; and (iv) whether issues of fact can be resolved by stipulation.

(2) Conference Report.

(A) Filing. A conference report, subscribed by the prosecuting attorney and counsel for the defendant, and when necessary to waive constitutional rights or when the report contains stipulations as to material facts, by the defendant, shall be filed with the clerk of the court pursuant to subdivision (b)(2)(i). The conference report shall contain a statement of those matters upon which the parties have reached agreement, including any stipulations of fact, and a statement of those matters upon which the parties could not agree which are to be the subject of pretrial motions. Agreements reduced to writing in the conference report shall be binding on the parties and shall control the subsequent course of the proceeding.

(B) Failure to File. If a party fails to participate in a pretrial conference or to cooperate in the filing of a conference report, the adverse party shall notify the clerk of such failure. If a conference report is not filed and a party does not appear at the pretrial hearing, no request of that party for a continuance of the trial date as scheduled shall be granted and no pretrial motion of that party shall be permitted to be filed, except by leave of court for cause shown. If the parties fail to file a conference report or do not appear at the pretrial hearing, the case shall be presumed to be ready for trial and shall be scheduled for trial at the earliest possible time. The parties shall be subject to such other sanctions as the judge may impose.

(b) The Pretrial Hearing. At arraignment, except on a complaint regarding which the court will not exercise final jurisdiction, the court shall order the prosecuting attorney and defense counsel to appear before the court on a date certain for a pretrial hearing. The defendant shall be available for attendance at the hearing. The pretrial hearing may include the following events:

(1) Tender of Plea. The defendant may tender a plea, admission or other requested disposition, with or without the agreement of the prosecutor.

(2) Pretrial Matters. Unless the Court declines jurisdiction over the case or disposes of the case at the pretrial hearing, the pretrial hearing shall include the following events:

(i) Filing of Pretrial Conference Report. The prosecuting attorney and defense counsel shall file the pretrial conference report with the clerk of court.

(ii) Discovery and Pretrial Motions. The court shall hear all discovery motions pending at the time of the pretrial hearing. Other pending pretrial motions may be heard at the pretrial hearing, continued to a specified date for a hearing, or transmitted for hearing and resolution by the trial session.

(iii) Compliance and Trial Assignment. The court shall determine whether the pretrial conference report is complete, all discovery matters have been resolved, and compliance with all discovery orders has been accomplished. If so, the court shall obtain the defendant’s decision on waiver of the right to a jury trial, and assign a trial date or trial assignment date. If completion of either the pretrial conference report or discovery is still pending, the court shall schedule and order the parties to appear for a compliance hearing pursuant to Rule 11(c) unless the aggrieved party waives the right to a compliance hearing.

(iv) The court may issue such additional orders as will promote the fair, speedy and orderly disposition of the case.

(c) Compliance Hearing. A compliance hearing ordered pursuant to Rule 11(b)(2)(iii) shall be limited to the following court actions:

(1) determining whether the pretrial conference report and discovery are complete and, if necessary, hearing and deciding discovery motions and ordering appropriate sanctions for non-compliance;

(2) receiving and acting on a tender of plea or admission; and

(3) if the pretrial conference report and discovery are complete, obtaining the defendant’s decision on waiver of the right to a jury trial, and scheduling the trial date or trial assignment date.

 

Rule 12. PLEAS AND WITHDRAWALS OF PLEAS

(a) Entry of Pleas.

(1) Pleas Which May Be Entered and by Whom. A defendant may plead not guilty, or guilty, or with the consent of the judge, nolo contendere, to any crime with which the defendant has been charged and over which the court has jurisdiction. A plea of guilty or nolo contendere shall be received only from the defendant personally except pursuant to the provisions of Rule 18. Pleas shall be received in open court and the proceedings shall be recorded. If a defendant refuses to plead or if the judge refuses to accept a plea of guilty or nolo contendere, a plea of not guilty shall be entered.

(2) Admission to Sufficient Facts. In a District Court, a defendant may, after a plea of not guilty, admit to sufficient facts to warrant a finding of guilty.

(3) Acceptance of Plea of Guilty, a Plea of Nolo Contendere, or an Admission to Sufficient Facts. A judge may refuse to accept a plea of guilty or a plea of nolo contendere or an admission to sufficient facts. The judge shall not accept such a plea or admission without first determining that it is made voluntarily with an understanding of the nature of the charge and the consequences of the plea or admission.

(b) Plea Conditioned Upon an Agreement.

(1) Formation of Agreement; Substance. The defendant and defense counsel or the defendant when acting pro se may engage in discussions with the prosecutor as to any recommendation to be made to a judge or any other action to be taken by the prosecutor upon the tender of a plea of guilty or nolo contendere to a charged offense or to a lesser included offense. The agreement of the prosecutor may include:

(A) Charge Concessions.

(B) Recommendation of a particular sentence or type of punishment with the specific understanding that the recommendation shall not be binding upon the court.

(C) Recommendation of a particular sentence or type of punishment which may also include the specific understanding that the defendant shall reserve the right to request a lesser sentence or different type of punishment.

(D) A general recommendation of incarceration without regard to a specific term or institution.

(E) Recommendation of a particular disposition other than incarceration.

(F) Agreement not to oppose the request of the defendant for a particular sentence or other disposition.

(G) Agreement to make no recommendation or to take no action.

(H) Any other type of agreement involving recommendations or actions.

(2) Notice of Agreement. If defense counsel or the prosecutor has knowledge of any agreement that was made contingent upon the defendant’s plea, he or she shall inform the judge thereof prior to the tender of the plea.

(c) Guilty Plea Procedure. After being informed that the defendant intends to plead guilty or nolo contendere:

(1) Inquiry. The judge shall inquire of the defendant or defense counsel as to the existence of and shall be informed of the substance of any agreements that are made which are contingent upon the plea.

(2) Recommendation as to Sentence or Disposition.

(A) Contingent Pleas. If there were sentence recommendations contingent upon the tender of the plea, the judge shall inform the defendant that the court will not impose a sentence that exceeds the terms of the recommendation without first giving the defendant the right to withdraw the plea.

(B) Disposition Requested by Defendant. In a District Court, if the plea is not conditioned on a sentence recommendation by the prosecutor, the defendant may request that the judge dispose of the case on any terms within the court’s jurisdiction. The judge shall inform the defendant that the court will not impose a disposition that exceeds the terms of the defendant’s request without first giving the defendant the right to withdraw the plea.

(3) Notice of Consequences of Plea. The judge shall inform the defendant on the record, in open court:

(A) that by a plea of guilty or nolo contendere, or an admission to sufficient facts, the defendant waives the right to trial with or without a jury, the right to confrontation of witnesses, the right to be presumed innocent until proved guilty beyond a reasonable doubt, and the privilege against self-incrimination;

(B) where appropriate, of the maximum possible sentence on the charge, and where appropriate, the possibility of community parole supervision for life; of any different or additional punishment based upon subsequent offense or sexually dangerous persons provisions of the General Laws, if applicable; where applicable, that the defendant may be required to register as a sex offender; and of the mandatory minimum sentence, if any, on the charge;

(C) that if the defendant is not a citizen of the United States, the guilty plea, plea of nolo contendere or admission may have the consequence of deportation, exclusion of admission, or denial of naturalization.

(4) Tender of Plea. The defendant’s plea or admission shall then be tendered to the court.

(5) Hearing on Plea; Acceptance. The judge shall conduct a hearing to determine the voluntariness of the plea or admission and the factual basis of the charge.

(A) Factual Basis for Charge. A judge shall not accept a plea of guilty unless the judge is satisfied that there is a factual basis for the charge. The failure of the defendant to acknowledge all of the elements of the factual basis shall not preclude a judge from accepting a guilty plea. Upon a showing of cause the tender of the guilty plea and the acknowledgment of the factual basis of the charge may be made on the record at the bench.

(B) Acceptance. At the conclusion of the hearing the judge shall state the court’s acceptance or rejection of the plea or admission.

(C) Sentencing. After acceptance of a plea of guilty or nolo contendere or an admission, the judge may proceed with sentencing.

(6) Refusal to Accept an Agreed Sentence Recommendation. If the judge determines that the court will impose a sentence that will exceed an agreed recommendation for a particular sentence or type of punishment under subdivision (b)(1)(C) of this rule, an agreed recommendation for a particular disposition other than incarceration under subdivision (b)(1)(E), or a request for disposition in a District Court by the defendant under subdivision (c)(2)(B), after having informed the defendant as provided in subdivision (c)(2) that the court would not do so, the judge shall, on the record, advise the defendant personally in open court or on a showing of cause, in camera, that the judge intends to exceed the terms of the plea recommendation or request for disposition and shall afford the defendant the opportunity to then withdraw the plea or admission. The judge may indicate to the parties what sentence the judge would impose.

(d) Deleted.

(e) Availability of Criminal Record and Presentence Report. The criminal record of the defendant shall be made available. Upon the written motion of either party made at the tender of a plea of guilty or nolo contendere, the presentence report as described in subdivision (d)(2) of Rule 28 shall be made available to the prosecutor and counsel for the defendant for inspection. In extraordinary cases, the judge may except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons. If the report is not made fully available, the portions thereof which are not disclosed shall not be relied upon in determining sentence. No party may make any copy of the presentence report.

(f) Inadmissibility of Pleas, Offers of Pleas, and Related Statements. Except as otherwise provided in this subdivision, evidence of a plea of guilty, or a plea of nolo contendere, or an admission, or of an offer to plead guilty or nolo contendere or an admission to the crime charged or any other crime, later withdrawn, or statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceedings against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, or a plea of nolo contendere, or an admission or an offer to plead guilty or nolo contendere or an admission to the crime charged or any other crime, is admissible in a criminal proceeding for perjury if the statement was made by the defendant under oath, on the record, and in the presence of counsel, if any.

 

Rule 13. PRETRIAL MOTIONS

(a) In General.

(1) Requirement of Writing and Signature; Waiver. A pretrial motion shall be in writing and signed by the party making the motion or the attorney for that party. Pretrial motions shall be filed within the time allowed by subdivision (d) of this rule.

(2) Grounds and Affidavit. A pretrial motion shall state the grounds on which it is based and shall include in separately numbered paragraphs all reasons, defenses, or objections then available, which shall be set forth with particularity. If there are multiple charges, a motion filed pursuant to this rule shall specify the particular charge to which it applies. Grounds not stated which reasonably could have been known at the time a motion is filed shall be deemed to have been waived, but a judge for cause shown may grant relief from such waiver. In addition, an affidavit detailing all facts relied upon in support of the motion and signed by a person with personal knowledge of the factual basis of the motion shall be attached.

(3) Service and Notice. A copy of any pretrial motion and supporting affidavits shall be served on all parties or their attorneys pursuant to Rule 32 at the time the originals are filed. Opposing affidavits shall be served not later than one day before the hearing. For cause shown the requirements of this subdivision (3) may be waived by the court.

(4) Memoranda of Law. The judge or special magistrate may require the filing of a memorandum of law, in such form and within such time as he or she may direct, as a condition precedent to a hearing on a motion or interlocutory matter. No motion to suppress evidence, other than evidence seized during a warrantless search, and no motion to dismiss may be filed unless accompanied by a memorandum of law, except when otherwise ordered by the judge or special magistrate.

(5) Renewal. Upon a showing that substantial justice requires, the judge or special magistrate may permit a pretrial motion which has been heard and denied to be renewed.

(b) Bill of Particulars.

(1) Motion. Within the time provided for the filing of pretrial motions by this rule or within such other time as the judge may allow, a defendant may request or the court upon its own motion may order that the prosecution file a statement of such particulars as may be necessary to give both the defendant and the court reasonable notice of the crime charged, including time, place, manner, or means.

(2) Amendment. If at trial there exists a material variance between the evidence and bill of particulars, the judge may order the bill of particulars amended or may grant such other relief as justice requires.

(c) Motion to Dismiss or to Grant Appropriate Relief.

(1) All defenses available to a defendant by plea, other than not guilty, shall only be raised by a motion to dismiss or by a motion to grant appropriate relief.

(2) A defense or objection which is capable of determination without trial of the general issue shall be raised before trial by motion.

(d) Filing. Only pretrial motions the subject matter of which could not be agreed upon at the pretrial conference shall be filed with the court.

(1) Discovery Motions. Any discovery motions shall be filed prior to the conclusion of the pretrial hearing, or thereafter for good cause shown. A discovery motion filed after the conclusion of the pretrial hearing shall be heard and considered only if (A) the discovery sought could not reasonably have been requested or obtained prior to the conclusion of the pretrial hearing, (B) the discovery is sought by the Commonwealth, and the Commonwealth could not reasonably provide all discovery due to the defense prior to the conclusion of the pretrial hearing, or (C) other good cause exists to warrant consideration of the motion.

(2) Non-discovery Pretrial Motions. A pretrial motion which does not seek discovery shall be filed before the assignment of a trial date pursuant to Rule 11(b) or (c) or within 21 days thereafter, unless the court permits later filing for good cause shown.

(e) Hearing on Motions. The parties shall have a right to a hearing on a pretrial motion. The opposing party shall be afforded an adequate opportunity to prepare and submit a memorandum of law prior to the hearing.

(1) Discovery Motions. All pending discovery motions shall be heard and decided prior to the defendant’s election of a jury or jury-waived trial. Any discovery matters pending at the time of the pretrial hearing or the compliance hearing shall be heard at that hearing. Discovery motions filed pursuant to subdivision (d)(1) after the defendant’s election shall be heard and decided expeditiously.

(2) Non-Discovery Pretrial Motions. A non-discovery motion filed prior to the pretrial hearing may be heard at the pretrial hearing, at a hearing scheduled to address the motion, or at the trial session. A non-discovery motion filed at or after the pretrial hearing shall be heard at the next scheduled court date unless otherwise ordered.

(3) Within seven days after the filing of a motion, or if the motion is transmitted to the trial session within seven days after the transmittal, the clerk or the judge shall assign a date for hearing the motion, but the judge or special magistrate for cause shown may entertain such motion at any time before trial. If the parties have agreed to a mutually convenient time for the hearing of a pretrial motion, and the moving party so notifies the clerk in writing at the time of the filing of the motion, the clerk shall mark up the motion for hearing at that time subject to the approval of the court. The clerk shall notify the parties of the time set for hearing the motion.

 

Rule 14. PRETRIAL DISCOVERY [effective September 17, 2012]

(a) Procedures for Discovery.

(1) Automatic Discovery.

(A) Mandatory Discovery for the Defendant. The prosecution shall disclose to the defense, and permit the defense to discover, inspect and copy, each of the following items and information at or prior to the pretrial conference, provided it is relevant to the case and is in the possession, custody or control of the prosecutor, persons under the prosecutor’s direction and control, or persons who have participated in investigating or evaluating the case and either regularly report to the prosecutor’s office or have done so in the case:

(i) Any written or recorded statements, and the substance of any oral statements, made by the defendant or a co-defendant.

(ii) The grand jury minutes, and the written or recorded statements of a person who has testified before a grand jury.

(iii) Any facts of an exculpatory nature.

(iv) The names, addresses, and dates of birth of the Commonwealth’s prospective witnesses other than law enforcement witnesses. The Commonwealth shall also provide this information to the Probation Department.

(v) The names and business addresses of prospective law enforcement witnesses.

(vi) Intended expert opinion evidence, other than evidence that pertains to the defendant’s criminal responsibility and is subject to subdivision (b)(2). Such discovery shall include the identity, current curriculum vitae, and list of publications of each intended expert witness, and all reports prepared by the expert that pertain to the case.

(vii) Material and relevant police reports, photographs, tangible objects, all intended exhibits, reports of physical examinations of any person or of scientific tests or experiments, and statements of persons the Commonwealth intends to call as witnesses.

(viii) A summary of identification procedures, and all statements made in the presence of or by an identifying witness that are relevant to the issue of identity or to the fairness or accuracy of the identification procedures.

(ix) Disclosure of all promises, rewards or inducements made to witnesses the Commonwealth intends to present at trial.

(B) Reciprocal Discovery for the Prosecution. Following the Commonwealth’s delivery of all discovery required pursuant to subdivision (a)(1)(A) or court order, and on or before a date agreed to between the parties, or in the absence of such agreement a date ordered by the court, the defendant shall disclose to the prosecution and permit the Commonwealth to discover, inspect, and copy any material and relevant evidence discoverable under subdivision (a)(1)(A)(vi), (vii), and (ix) which the defendant intends to use at trial, including the names, addresses, dates of birth, and statements of those persons whom the defendant intends to use as witnesses at trial.

(C) Stay of Automatic Discovery; Sanctions. Subdivisions (a)(1)(A) and (a)(1)(B) shall have the force and effect of a court order, and failure to provide discovery pursuant to them may result in application of any sanctions permitted for non-compliance with a court order under subdivision 14(c). However, if in the judgment of either party good cause exists for declining to make any of the disclosures set forth above, it may move for a protective order pursuant to subdivision (a)(6) and production of the item shall be stayed pending a ruling by the court.

(D) Record of Convictions of the Defendant, Codefendants, and Prosecution Witnesses. At arraignment the court shall order the Probation Department to deliver to the parties the record of prior complaints, indictments and dispositions of all defendants and of all witnesses identified pursuant to subdivisions (a)(1)(A)(iv) and (v) within 5 days of the Commonwealth’s notification to the Department of the names and addresses of its witnesses.

(E) Notice and Preservation of Evidence. (i) Upon receipt of information that any item described in subparagraph (a)(1)(A)(i)-(viii) exists, except that it is not within the possession, custody or control of the prosecution, persons under its direction and control, or persons who have participated in investigating or evaluating the case and either regularly report to the prosecutor’s office or have done so in the case, the prosecution shall notify the defendant of the existence of the item and all information known to the prosecutor concerning the item’s location and the identity of any persons possessing it. (ii) At any time, a party may move for an order to any individual, agency or other entity in possession, custody or control of items pertaining to the case, requiring that such items be preserved for a specified period of time. The court shall hear and rule upon the motion expeditiously. The court may modify or vacate such an order upon a showing that preservation of particular evidence will create significant hardship, on condition that the probative value of said evidence is preserved by a specified alternative means.

(2) Motions for Discovery. The defendant may move, and following its filing of the Certificate of Compliance the Commonwealth may move, for discovery of other material and relevant evidence not required by subdivision (a)(1) within the time allowed by Rule 13(d)(1).

(3) Certificate of Compliance. When a party has provided all discovery required by this rule or by court order, it shall file with the court a Certificate of Compliance. The certificate shall state that, to the best of its knowledge and after reasonable inquiry, the party has disclosed and made available all items subject to discovery other than reports of experts, and shall identify each item provided. If further discovery is subsequently provided, a supplemental certificate shall be filed with the court identifying the additional items provided.

(4) Continuing Duty. If either the defense or the prosecution subsequently learns of additional material which it would have been under a duty to disclose or produce pursuant to any provisions of this rule at the time of a previous discovery order, it shall promptly notify the other party of its acquisition of such additional material and shall disclose the material in the same manner as required for initial discovery under this rule.

(5) Work Product. This rule does not authorize discovery by a party of those portions of records, reports, correspondence, memoranda, or internal documents of the adverse party which are only the legal research, opinions, theories, or conclusions of the adverse party or its attorney and legal staff, or of statements of a defendant, signed or unsigned, made to the attorney for the defendant or the attorney’s legal staff.

(6) Protective Orders. Upon a sufficient showing, the judge may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. The judge may alter the time requirements of this rule. The judge may, for cause shown, grant discovery to a defendant on the condition that the material to be discovered be available only to counsel for the defendant. This provision does not alter the allocation of the burden of proof with regard to the matter at issue, including privilege.

(7) Amendment of Discovery Orders. Upon motion of either party made subsequent to an order of the judge pursuant to this rule, the judge may alter or amend the previous order or orders as the interests of justice may require. The judge may, for cause shown, affirm a prior order granting discovery to a defendant upon the additional condition that the material to be discovered be available only to counsel for the defendant.

(8) A party may waive the right to discovery of an item, or to discovery of the item within the time provided in this Rule. The parties may agree to reduce or enlarge the items subject to discovery pursuant to subsections (a)(1)(A) and (a)(1)(B). Any such waiver or agreement shall be in writing and signed by the waiving party or the parties to the agreement, shall identify the specific items included, and shall be served upon all the parties.

(b) Special Procedures.

(1) Notice of Alibi.

(A) Notice by Defendant. The judge may, upon written motion of the Commonwealth filed pursuant to subdivision (a)(2) of this rule, stating the time, date, and place at which the alleged offense was committed, order that the defendant serve upon the prosecutor a written notice, signed by the defendant, of his or her intention to offer a defense of alibi. The notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defense intends to rely to establish the alibi.

(B) Disclosure of Information and Witness. Within seven days of service of the defendant’s notice of alibi, the Commonwealth shall serve upon the defendant a written notice stating the names and addresses of witnesses upon whom the prosecutor intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant’s alibi witnesses.

(C) Continuing Duty to Disclose. If prior to or during trial a party learns of an additional witness whose identity, if known, should have been included in the information furnished under subdivision (b)(1)(A) or (B), that party shall promptly notify the adverse party or its attorney of the existence and identity of the additional witness.

(D) Failure to Comply. Upon the failure of either party to comply with the requirements of this rule, the judge may exclude the testimony of any undisclosed witness offered by such party as to the defendant’s absence from or presence at the scene of the alleged offense. This rule shall not limit the right of the defendant to testify.

(E) Exceptions. For cause shown, the judge may grant an exception to any of the requirements of subdivisions (b)(1)(A) through (D) of this rule.

(F) Inadmissibility of Withdrawn Alibi. Evidence of an intention to rely upon an alibi defense, later withdrawn, or of statements made in connection with that intention, is not admissible in any civil or criminal proceeding against the person who gave notice of that intention.

(2) Mental Health Issues.

(A) Notice. If a defendant intends at trial to raise as an issue his or her mental condition at the time of the alleged crime, or if the defendant intends to introduce expert testimony on the defendant’s mental condition at any stage of the proceeding, the defendant shall, within the time provided for the filing of pretrial motions by Rule 13(d)(2) or at such later time as the judge may allow, notify the prosecutor in writing of such intention. The notice shall state:

(i) whether the defendant intends to offer testimony of expert witnesses on the issue of the defendant’s mental condition at the time of the alleged crime or at another specified time;

(ii) the names and addresses of expert witnesses whom the defendant expects to call; and

(iii) whether those expert witnesses intend to rely in whole or in part on statements of the defendant as to his or her mental condition.

The defendant shall file a copy of the notice with the clerk. The judge may for cause shown allow late filing of the notice, grant additional time to the parties to prepare for trial, or make such other order as may be appropriate.

(B) Examination. If the notice of the defendant or subsequent inquiry by the judge or developments in the case indicate that statements of the defendant as to his or her mental condition will be relied upon by a defendant’s expert witness, the court, on its own motion or on motion of the prosecutor, may order the defendant to submit to an examination consistent with the provisions of the General Laws and subject to the following terms and conditions:

(i) The examination shall include such physical, psychiatric, and psychological tests as the examiner deems necessary to form an opinion as to the mental condition of the defendant at the relevant time. No examination based on statements of the defendant may be conducted unless the judge has found that (a) the defendant then intends to offer into evidence expert testimony based on his or her own statements or (b) there is a reasonable likelihood that the defendant will offer that evidence.

(ii) No statement, confession, or admission, or other evidence of or obtained from the defendant during the course of the examination, except evidence derived solely from physical examinations or tests, may be revealed to the prosecution or anyone acting on its behalf unless so ordered by the judge.

(iii) The examiner shall file with the court a written report as to the mental condition of the defendant at the relevant time.

Unless the parties mutually agree to an earlier time of disclosure, the examiner’s report shall be sealed and shall not be made available to the parties unless (a) the judge determines that the report contains no matter, information, or evidence which is based upon statements of the defendant as to his or her mental condition at the relevant time or which is otherwise within the scope of the privilege against self-incrimination; or (b) the defendant files a motion requesting that the report be made available to the parties; or (c) after the defendant expresses the clear intent to raise as an issue his or her mental condition, the judge is satisfied that (1) the defendant intends to testify, or (2) the defendant intends to offer expert testimony based in whole or in part on statements made by the defendant as to his or her mental condition at the relevant time.

At the time the report of the Commonwealth’s examiner is disclosed to the parties, the defendant shall provide the Commonwealth with a report of the defense psychiatric or psychological expert(s) as to the mental condition of the defendant at the relevant time.

The reports of both parties’ experts must include a written summary of the expert’s expected testimony that fully describes: the defendant’s history and present symptoms; any physical, psychiatric, and psychological tests relevant to the expert’s opinion regarding the issue of mental condition and their results; any oral or written statements made by the defendant relevant to the issue of the mental condition for which the defendant was evaluated; the expert’s opinions as to the defendant’s mental condition, including the bases and reasons for these opinions; and the witness’s qualifications.

If these reports contain both privileged and nonprivileged matter, the court may, if feasible, at such time as it deems appropriate prior to full disclosure of the reports to the parties, make available to the parties the nonprivileged portions.

(iv) If a defendant refuses to submit to an examination ordered pursuant to and subject to the terms and conditions of this rule, the court may prescribe such remedies as it deems warranted by the circumstances, which may include exclusion of the testimony of any expert witness offered by the defense on the issue of the defendant’s mental condition or the admission of evidence of the refusal of the defendant to submit to examination.

(C) Additional discovery. Upon a showing of necessity, the Commonwealth and the defendant may move for other material and relevant evidence relating to the defendant’s mental condition.

(3) Notice of Other Defenses. If a defendant intends to rely upon a defense based upon a license, claim of authority or ownership, or exemption, the defendant shall, within the time provided for the filing of pretrial motions by Rule 13(d)(2) or at such later time as the judge may direct, notify the prosecutor in writing of such intention and file a copy of such notice with the clerk. If there is a failure to comply with the requirements of this subdivision, a license, claim of authority or ownership, or exemption may not be relied upon as a defense. The judge may for cause shown allow a late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

(4) Self Defense and First Aggressor.

(A) Notice by Defendant. If a defendant intends to raise a claim of self defense and to introduce evidence of the alleged victim’s specific acts of violence to support an allegation that he or she was the first aggressor, the defendant shall no later than 21 days after the pretrial hearing or at such other time as the judge may direct for good cause, notify the prosecutor in writing of such intention. The notice shall include a brief description of each such act, together with the location and date to the extent practicable, and the names, addresses and dates of birth of the witnesses the defendant intends to call to provide evidence of each such act. The defendant shall file a copy of such notice with the clerk.

(B) Reciprocal Disclosure by the Commonwealth. No later than 30 days after receipt of the defendant’s notice, or at such other time as the judge may direct for good cause, the Commonwealth shall serve upon the defendant a written notice of any rebuttal evidence the Commonwealth intends to introduce, including a brief description of such evidence together with the names of the witnesses the Commonwealth intends to call, the addresses and dates of birth of other than law enforcement witnesses and the business address of law enforcement witnesses.

(C) Continuing Duty to Disclose. If prior to or during trial a party learns of additional evidence that, if known, should have been included in the information furnished under subdivision (b)(4)(A) or (B), that party shall promptly notify the adverse party or its attorney of such evidence.

(D) Failure to Comply. Upon the failure of either party to comply with the requirements of this rule, the judge may exclude the evidence offered by such party on the issue of the identity of the first aggressor.

(c) Sanctions for Noncompliance.

(1) Relief for Nondisclosure. For failure to comply with any discovery order issued or imposed pursuant to this rule, the court may make a further order for discovery, grant a continuance, or enter such other order as it deems just under the circumstances.

(2) Exclusion of Evidence. The court may in its discretion exclude evidence for noncompliance with a discovery order issued or imposed pursuant to this rule. Testimony of the defendant and evidence concerning the defense of lack of criminal responsibility which is otherwise admissible cannot be excluded except as provided by subdivision (b)(2) of this rule.

(d) Definition. The term “statement”, as used in this rule, means:

(1) a writing made, signed, or otherwise adopted by a person having percipient knowledge of relevant facts and which contains such facts, other than drafts or notes that have been incorporated into a subsequent draft or final report; or

(2) a written, stenographic, mechanical, electrical, or other recording, or transcription thereof, which is a substantially verbatim recital of an oral declaration, except that a computer assisted real time translation, or its functional equivalent, made to assist a deaf or hearing impaired person, that is not transcribed or permanently saved in electronic form, shall not be considered a statement.

 

Rule 15. INTERLOCUTORY APPEAL

(Applicable to District Court and Superior Court)

(a) Right of Interlocutory Appeal.

(1) Right of Appeal Where Pretrial Motion to Dismiss or for Appropriate Relief Granted. The Commonwealth shall have the right to appeal to the appropriate appellate court a decision by a judge granting a motion to dismiss a complaint or indictment or a motion for appropriate relief made pursuant to the provisions of subdivision (c) of Rule 13.

(2) Right of Appeal Where Motion to Suppress Evidence Determined. A defendant or the Commonwealth shall have the right and opportunity to apply to a single justice of the Supreme Judicial Court for leave to appeal an order determining a motion to suppress evidence prior to trial. If the single justice determines that the administration of justice would be facilitated, the justice may grant that leave and may hear the appeal or may report it to the full Supreme Judicial Court or to the Appeals Court.

(3) Right of Appeal Where Transfer of Delinquency Proceeding is Denied. The Commonwealth shall have the right to appeal to the Appeals Court a decision by a judge denying transfer of a delinquency proceeding pursuant to G. L. c. 119, § 61.

(4) Probable Cause Hearings. No interlocutory appeal or report may be taken of matters arising out of a probable cause hearing.

(b) Procedural Requirements.

(1) Time for Filing Appeal. An appeal under subdivisions (a)(1) and (a)(3) shall be taken by filing a notice of appeal in the trial court within thirty days of the date of the order being appealed. An application for leave to appeal under subdivision (a)(2) shall be made by filing within ten days of the issuance of notice of the order being appealed, or such additional time as either the trial judge or the single justice of the Supreme Judicial Court shall order, (a) a notice of appeal in the trial court, and (b) an application to the single justice of the Supreme Judicial Court for leave to appeal.

(2) Record. The record for an interlocutory appeal shall be defined and assembled pursuant to Massachusetts Rule of Appellate Procedure 8. The judge shall make all findings of fact relevant to the appeal or the application for leave to appeal within the period specified in subdivision (b)(1) for filing the notice of appeal.

(c) Determination of Motions. Any motion the determination of which may be appealed pursuant to this rule shall be decided by the judge before the defendant is placed in jeopardy under established rules of law.

(d) Costs upon Appeal. If an appeal or application therefor is taken by the Commonwealth, the appellate court, upon the written motion of the defendant supported by affidavit, shall determine and approve the payment to the defendant of his or her costs of appeal together with reasonable attorney’s fees to be paid on the order of the trial court upon the entry of the rescript or the denial of the application.

(e) Stay of the Proceedings. If the trial court issues an order which is subject to the interlocutory procedures herein, the trial of the case shall be stayed and the defendant shall not be placed in jeopardy until interlocutory review has been waived or the period specified in subdivision (b)(1) for instituting interlocutory procedures has expired. If an appeal is taken or an application for leave to appeal is granted, the trial shall be stayed pending the entry of a rescript from or an order of the appellate court. If an appeal or application therefor is taken by the Commonwealth, the defendant may be released on personal recognizance during the pendency of the appeal.

 

Rule 16. DISMISSAL BY THE PROSECUTION

(Applicable to District Court and Superior Court)

(a) Entry of a Nolle Prosequi. A prosecuting attorney may enter a nolle prosequi of pending charges at any time prior to the pronouncement of sentence. A nolle prosequi shall be accompanied by a written statement, signed by the prosecuting attorney, setting forth the reasons for that disposition.

(b) Entry of a Nolle Prosequi During Trial. After jeopardy attaches, a nolle prosequi entered without the consent of the defendant shall have the effect of an acquittal of the charges contained in the nolle prosequi.

 

Rule 17. SUMMONSES FOR WITNESSES

(Applicable to District Court and Superior Court)

(a) Summons.

(1) For Attendance of Witness; Form; Issuance. A summons shall be issued by the clerk or any person so authorized by the General Laws. It shall state the name of the court and the title, if any, of the proceeding and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein.

(2) For Production of Documentary Evidence and of Objects. A summons may also command the person to whom it is directed to produce the books, papers, documents, or other objects designated therein. The court on motion may quash or modify the summons if compliance would be unreasonable or oppressive or if the summons is being used to subvert the provisions of rule 14. The court may direct that books, papers, documents, or objects designated in the summons be produced before the court within a reasonable time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents, objects, or portions thereof to be inspected and copied by the parties and their attorneys if authorized by law.

(b) Defendants Unable to Pay. At any time upon the written ex parte application of a defendant which shows that the presence of a named witness is necessary to an adequate defense and that the defendant is unable to pay the fees of that witness, the court shall order the issuance of an indigent’s summons. The witness so summoned shall be paid in accordance with the provisions of subdivision (c) of this rule. If the court so orders, the costs incurred shall be assessed to the defendant in accordance with the General Laws or the provisions of these rules.

(c) Payment of Witnesses. Expenses incurred by a witness summoned on behalf of a defendant determined to be indigent under this rule as well as expenses incurred by a witness summoned on behalf of the Commonwealth, as such expenses are determined in accordance with the General Laws, shall be paid after the witness certifies in a writing filed with the court the amount of his travel and attendance.

(d) Service.

(1) By Whom; Manner. A summons may be served by any person authorized to serve a summons in a civil action or to serve criminal process. A summons shall be served upon a witness by delivering a copy to him personally, by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by mailing it to the witness’ last known address.

(2) Place of Service.

(A) Within the Commonwealth. A summons requiring the attendance of a witness at a hearing or a trial may be served at any place within the Commonwealth.

(B) Outside the Commonwealth or Abroad. A summons directed to a witness outside the Commonwealth or abroad shall issue and be served in a manner consistent with the General Laws.

(3) Return. The person serving a summons pursuant to this rule shall make a return of service to the court.

(e) Failure to Appear. If a person served with a summons pursuant to this rule fails to appear at the time and place specified therein and the court determines that such person did receive actual notice to appear, a warrant may issue to bring that person before the court.

 

Rule 18. PRESENCE OF DEFENDANT

(Applicable to District Court and Superior Court)

(a) Presence of Defendant. In any prosecution for crime the defendant shall be entitled to be present at all critical stages of the proceedings.

(1) Defendant absenting himself. If a defendant is present at the beginning of a trial and thereafter absents himself without cause or without leave of court, the trial may proceed to a conclusion in all respects except the imposition of sentence as though the defendant were still present.

(2) Waiver of Presence in Misdemeanor Cases. A person prosecuted for a misdemeanor may at his own request, with leave of court, be excused from attendance if represented by counsel or an agent authorized by law and may be excused from attendance without leave of court if so authorized by the General Laws.

(3) Presence Not Required. A defendant need not be present at a revision or revocation of sentence pursuant to rule 29 or at any proceeding where evidence is not to be taken.

(b) Presence of Corporation. A corporation may appear by a duly authorized agent for the purposes of this rule.

 

Rule 19. TRIAL BY JURY OR BY THE COURT

(Applicable to Superior Court and jury sessions in District Court)

(a) General. A case in which the defendant has the right to be tried by a jury shall so be tried unless the defendant waives a jury trial in writing with the approval of the court and files the waiver with the clerk, in which instance he shall be tried by the court instead of by a jury. If there is more than one defendant, all must waive the right to trial by jury, and if they do not so waive, there must be a jury trial unless the court in its discretion severs the cases. The court may refuse to approve such a waiver for any good and sufficient reason provided that such refusal is given in open court and on the record.

(b) Less Than a Full Jury. If after jeopardy attaches there is at any time during the progress of a trial less than a full jury remaining, a defendant may waive his right to be tried by a full jury and request trial by the remaining jurors by signing a written waiver which shall be filed with the court. If there is more than one defendant, all must sign and file a waiver unless the court in its discretion severs the cases.

 

Rule 20. TRIAL JURORS

(Applicable to Superior Court and jury sessions in District Court)

(a) Motion for Appropriate Relief. Either party may challenge the array by a motion for appropriate relief pursuant to rule 13(c). A challenge to the array shall be made only on the ground that the prospective jurors were not selected or drawn according to law. Challenges to the array shall be made and decided before any individual juror is examined unless otherwise ordered by the court. A challenge to the array shall be in writing supported by affidavit and shall specify the facts constituting the ground of the challenge. Challenges to the array shall be tried by the court and may in the discretion of the court be decided on the basis of the affidavit filed with the challenge. Upon the hearing of a challenge to the array, a witness may be examined on oath by the court and may be so examined by either party. If the challenge to the array is sustained, the court shall discharge the panel.

(b) Challenge for Cause.

(1) Examination of Juror. The court shall, or upon motion, the parties or their attorneys may under the direction of the court, examine on oath a person who is called as a juror in a case to learn whether he is related to either party, has any interest in the case, has expressed or formed an opinion, or is sensible of any bias or prejudice. The objecting party may, with the approval of the court, introduce other competent evidence in support of the objection.

(2) Examination upon Extraneous Issues. The court shall examine or cause a juror to be examined upon issues extraneous to the case if it appears that the juror’s impartiality may have been affected by the extraneous issues. The examination may include a brief statement of the facts of the case, to the extent the facts are appropriate and relevant to the issues of such examination, and shall be conducted individually and outside the presence of other persons about to be called or already called as jurors.

(3) Challenge of Juror. Either party may challenge an individual prospective juror before the juror is sworn to try the case. The court may for cause shown permit a challenge to be made after the juror is sworn but before any evidence is presented. When a juror is challenged for cause, the ground of the challenge shall be stated. A challenge of a prospective juror and the statement of the grounds thereof may be made at the bench. The court shall determine the validity of each such challenge.

(c) Peremptory Challenges.

(1) Number of Challenges. Upon the trial of an indictment for a crime punishable by imprisonment for life, each defendant shall be entitled to twelve peremptory challenges of the jurors called to try the case; in any other criminal case tried before a jury of twelve, each defendant shall be entitled to four peremptory challenges; and in a case tried before a jury of six, each defendant shall be entitled to two peremptory challenges. Each defendant in a trial of an indictment for a crime punishable by imprisonment for life in which additional jurors are impaneled under subdivision (d) of this rule shall be entitled to one additional peremptory challenge for each additional juror. Each defendant in a case in which several indictments or complaints are consolidated for trial shall be entitled to no more peremptory challenges than the greatest number to which he would have been entitled upon trial of any one of the indictments or complaints alone. In every criminal case the Commonwealth shall be entitled to as many peremptory challenges as equal the whole number to which all the defendants in the case are entitled.

(2) Time of Challenge. Peremptory challenges shall be made before the jurors are sworn and may be made after the determination that a person called to serve as a juror stands indifferent in the case.

(d) Alternate Jurors.

(1) Impanelling Jury with Alternative Jurors. If a jury trial is likely to be protracted, the judge may impanel a jury of not more than sixteen members and the court shall have jurisdiction to try the case with that jury.

(2) Selection of Twelve Jurors. If at the time of the final submission of the case to the jury more than twelve members of the jury who have heard the whole case are alive and not incapacitated or disqualified, the judge shall direct the clerk to place the names of all the remaining jurors except the foreman in a box and draw the names of a sufficient number to reduce the jury to twelve members. Those jurors whose names are drawn shall not be discharged, but shall be known as alternate jurors and shall be kept separate and apart from the other jurors in some convenient place, subject to the same rules and regulations as the other jurors, until the jury has agreed upon a verdict or has been otherwise discharged.

(3) Disabled Juror: Selection of Alternate. If, at any time after the final submission of the case by the court to the jury but before the jury has agreed on a verdict, a juror dies, becomes ill, or is unable to perform his duty for any other cause, the judge may order him to be discharged and shall direct the clerk to place the names of all the remaining alternate jurors in a box and draw the name of an alternate who shall take the place of the discharged juror on the jury, which shall renew its deliberations with the alternate juror.

(e) Regulation and Separation of Jurors.

(1) Sequestration. After the jurors have been sworn they shall hear the case as a body and, within the discretion of the trial judge, may be sequestered.

(2) After Submission of the Cause. Unless the jurors have been sequestered for the duration of the trial, the judge after the final submission of the case, may order that the jurors be permitted to separate for a definite time to be fixed by the judge and then reconvene in the courtroom before retiring for consideration of their verdict.

(3) After Commencement of Deliberations. After final submission of the case to the jury and after deliberations have commenced, the judge may allow the jurors, under proper instructions, to separate for a definite time to be fixed by the judge and to reconvene in the courtroom before retiring for further deliberation of their verdict.

 

Rule 21. SEQUESTRATION OF WITNESSES

(Applicable to District Court and Superior Court)

Upon his own motion or the motion of either party, the judge may, prior to or during the examination of a witness, order any witness or witnesses other than the defendant to be excluded from the courtroom.

 

Rule 22. OBJECTIONS

(Applicable to Superior Court and jury sessions in District Court)

Exceptions to rulings or orders of the court are unnecessary and for all purposes for which an exception has heretofore been necessary, it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court, but if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him.

If a party objects to a ruling or order of the court, he may state the precise legal grounds of his objection, but he shall not argue or further discuss such grounds unless the court calls upon him for such argument or discussion.

 

Rule 23. STATEMENTS AND REPORTS OF WITNESSES FOR IMPEACHMENT [Removed]

 

Rule 24. OPENING STATEMENTS; ARGUMENTS; INSTRUCTIONS TO JURY

(Applicable to Superior Court and jury sessions in District Court)

(a) Opening and Closing Statements; Arguments.

(1) Order of Presentation. The Commonwealth shall present its opening statement first. The defendant may present an opening statement of his defense after the opening statement of the Commonwealth or after the close of the Commonwealth’s evidence. The defendant shall present his closing argument first.

(2) Time Limitation. Counsel for each party shall be allowed fifteen minutes for an opening statement and thirty minutes for argument; but before the opening or the argument commences, the judge, on motion or sua sponte, may reasonably reduce or extend the time.

(b) Instructions to Jury; Objection. At the close of the evidence or at such earlier time during the trial as the judge reasonably directs, any party may file written requests that the judge instruct the jury on the law as set forth in the requests. The judge shall inform counsel of his proposed action upon requests prior to their arguments to the jury. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, specifying the matter to which he objects and the grounds of his objection. Upon request, reasonable time shall be given to each party to object to the charge before the jury retires. Where either party wishes to object to the charge or to request additional instructions, the objection or the request shall be made out of the hearing of the jury, or where appropriate, out of the presence of the jury.

 

Rule 25. MOTION REQUIRED FOR FINDING OF NOT GUILTY

(Applicable to District Court and Superior Court)

(a) Entry by Court. The judge on motion of a defendant or on his own motion shall enter a finding of not guilty of the offense charged in an indictment or complaint or any part thereof after the evidence on either side is closed if the evidence is insufficient as a matter of law to sustain a conviction on the charge. If a defendant’s motion for a required finding of not guilty is made at the close of the Commonwealth’s evidence, it shall be ruled upon at that time. If the motion is denied or allowed only in part by the judge, the defendant may offer evidence in his defense without having reserved that right.

(b) Jury Trials.

(1) Reservation of Decision on Motion. If a motion for a required finding of not guilty is made at the close of all the evidence, the judge may reserve decision on the motion, submit the case to the jury, and decide the motion before the jury returns a verdict, after the jury returns a verdict of guilty, or after the jury is discharged without having returned a verdict.

(2) Motion After Discharge of Jury. If the motion is denied and the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the judge may on motion set aside the verdict and order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint.

(c) Appeal.

(1) Right of Appeal Where Motion for Relief Under Subdivision (b) Is Allowed After a Jury Verdict of Guilty. The Commonwealth shall have the right to appeal to the appropriate appellate court a decision of a judge granting relief under the provisions of subdivisions (b)(1) and (2) of this rule on a motion for required finding of not guilty after the jury has returned a verdict of guilty or on an order for the entry of a finding of guilt of any offense included in the offense charged in the indictment or complaint.

(2) Costs Upon Appeal. If an appeal or application therefor is taken by the Commonwealth, the appellate court, upon the written motion of the defendant supported by affidavit, may determine and approve the payment to the defendant of his costs of appeal together with reasonable attorney’s fees, if any, to be paid on the order of the trial court upon the entry of the rescript or the denial of the application.

 

Rule 26. REQUESTS FOR RULINGS
(Applicable to jury waived trials in District Court and Superior Court)

Requests for rulings in the trial of a case shall be in writing and shall be presented to the court before the beginning of closing arguments, unless consent of the court is given to present requests later.

 

Rule 27. VERDICT

(Applicable to jury trials in District Court and Superior Court)

(a) Return. The verdict shall be unanimous. It shall be a general verdict returned by the jury to the judge in open court. The jury shall file a verdict slip with the clerk upon the return of the verdict.

(b) Several Offenses or Defendants. If there are two or more offenses or defendants tried together, the jury may with the consent of the judge at any time during its deliberations return or be required by the judge to return a verdict or verdicts with respect to the defendants or charges as to which a verdict has been reached; and thereafter the jury may in the discretion of the judge resume deliberation. The judge may declare a mistrial as to any charges upon which the jury cannot agree upon a verdict; provided, however, that the judge may first require the jury to return verdicts on those charges upon which the jury can agree and direct that such verdicts be received and recorded.

(c) Special Questions. The trial judge may submit special questions to the jury.

(d) Poll of Jury. When a verdict is returned and before the verdict is recorded, the jury may be polled in the discretion of the judge. If after the poll there is not a unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

 

Rule 28. JUDGMENT

(Applicable to District Court and Superior Court)

(a) Judgment. If the defendant has been determined to be guilty, a verdict or finding of guilty shall be rendered, or if he has been determined to be not guilty, a verdict or finding of not guilty shall be rendered, in open court, and shall be entered on the court’s docket.

(b) Imposition of Sentence. After a verdict, finding, or plea of guilty, or a plea of nolo contendere, or an admission to sufficient facts, the defendant shall have the right to be sentenced without unreasonable delay. Pending sentence the court may commit the defendant or continue or alter the bail as provided by law. Before imposing sentence the court shall afford the defendant or his counsel an opportunity to speak on behalf of the defendant and to present any information in the mitigation of punishment.

(c) Notification of Right to Appeal. After a judgment of guilty is entered, the court shall advise the defendant of his right to appeal. In the District Court, upon the request of the defendant, the clerk of the court shall prepare and file forthwith a notice of appeal.

(d) Presentence Investigation.

(1) Criminal Record. The probation officer shall inquire into the nature of every criminal case or juvenile complaint brought before the court and report to the court information concerning all prior criminal prosecutions or juvenile complaints, if any, and the disposition of each such prosecution, except where the defendant was found not guilty. Such information is to be presented before a defendant is admitted to bail in court, and also before disposition of the case against him.

(2) Report. The report of the presentence investigation shall contain any prior criminal or juvenile prosecution record of the defendant, but shall not contain any information relating to criminal or juvenile prosecutions in which the defendant was found not guilty. In addition, the report shall include such other available information as may be helpful to the court in the disposition of the case.

(3) Availability to Parties. Prior to the disposition the presentence report shall be made available to the prosecutor and counsel for the defendant for inspection. In extraordinary cases, the judge may except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons. If the report is not made fully available, the portions thereof which are not disclosed shall not be relied upon in determining sentence. No party may make any copy of the presentence report.

(e) Filing. The court may file a case after a guilty verdict or finding without imposing a sentence if the defendant and the Commonwealth both consent. With the consent of both parties, the judge may specify a time limit beyond which the case may not be removed from the file, and may specify any events that may cause the case to be removed from the file. The defendant shall file a written consent with the court as to both the filing of the case and any time limit or events regarding removal from the file. Prior to accepting the defendant’s consent, the court shall inform the defendant on the record in open court:

(i) that the defendant has a right to request sentencing on any or all filed case(s) at any time;

(ii) that subject to any time limit imposed by the court, the prosecutor may request that the case be removed from the file and sentence imposed if a related conviction or sentence is reversed or vacated or upon the prosecutor’s establishing by a preponderance of the evidence either that the defendant committed a new criminal offense or that an event occurred on which the continued filing of the case was expressly made contingent by the court; and

(iii) that if the case is removed from the file the defendant may be sentenced on the case.

In sentencing the defendant after the removal of a case from the file, the court shall consider the over-all scheme of punishment employed by the original sentencing judge.

 

Rule 29. REVISION OR REVOCATION OF SENTENCE

(Applicable to District Court and Superior Court)

(a) Revision or Revocation. The trial judge upon his own motion or the written motion of a defendant filed within sixty days after the imposition of a sentence, within sixty days after receipt by the trial court of a rescript issued upon affirmance of the judgment or dismissal of the appeal, or within sixty days after entry of any order or judgment of an appellate court denying review of, or having the effect of upholding, a judgment of conviction, may upon such terms and conditions as he shall order, revise or revoke such sentence if it appears that justice may not have been done.

(b) Affidavits. If a defendant files a motion pursuant to this rule, he shall file and serve and the prosecutor may file and serve affidavits in support of their respective positions. The judge may rule on a motion filed pursuant to this rule on the basis of facts alleged in the affidavits without further hearing.

(c) Notice. The defendant shall serve the prosecutor with a copy of any motion and affidavit filed pursuant to this rule. If the judge orders that a hearing be held on the motion, the court shall give the parties reasonable notice of the time set for the hearing.

(d) Place of Hearing. A motion filed pursuant to this rule may be heard by the trial judge wherever he is then sitting.

 

Rule 30. POSTCONVICTION RELIEF (Motion for a New Trial)

(a) Unlawful Restraint. Any person who is imprisoned or whose liberty is restrained pursuant to a criminal conviction may at any time, as of right, file a written motion requesting the trial judge to release him or her or to correct the sentence then being served upon the ground that the confinement or restraint was imposed in violation of the Constitution or laws of the United States or of the Commonwealth of Massachusetts.

(b) New Trial. The trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done. Upon the motion the trial judge shall make such findings of fact as are necessary to resolve the defendant’s allegations of error of law.

(c) Post Conviction Procedure.

(1) Service and Notice. The moving party shall serve the office of the prosecutor who represented the Commonwealth in the trial court with a copy of any motion filed under this rule.

(2) Waiver. All grounds for relief claimed by a defendant under subdivisions (a) and (b) of this rule shall be raised by the defendant in the original or amended motion. Any grounds not so raised are waived unless the judge in the exercise of discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion.

(3) Affidavits. Moving parties shall file and serve and parties opposing a motion may file and serve affidavits where appropriate in support of their respective positions. The judge may on rule on the issue or issues presented by such motion on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits.

(4) Discovery. Where affidavits filed by the moving party under subdivision (c)(3) establish a prima facie case for relief, the judge on motion of any party, after notice to the opposing party and an opportunity to be heard, may authorize such discovery as is deemed appropriate, subject to appropriate protective order.

(5) Counsel. The judge in the exercise of discretion may assign or appoint counsel in accordance with the provisions of these rules to represent a defendant in the preparation and presentation of motions filed under subdivisions (a) and (b) of this rule. The court, after notice to the Commonwealth and an opportunity to be heard, may also exercise discretion to allow the defendant costs associated with the preparation and presentation of a motion under this rule.

(6) Presence of Moving Party. A judge may entertain and determine a motion under subdivisions (a) and (b) of this rule without requiring the presence of the moving party at the hearing.

(7) Place and Time of Hearing. All motions under subdivisions (a) and (b) of this rule may be heard by the trial judge wherever the judge is then sitting. The parties shall have at least 30 days notice of any hearing unless the judge determines that good cause exists to order the hearing held sooner.

(8) Appeal. An appeal from a final order under this rule may be taken to the Appeals Court, or to the Supreme Judicial Court in an appropriate case, by either party.

(A) If an appeal is taken, the defendant shall not be discharged from custody pending final decision upon the appeal; provided, however, that the defendant may, in the discretion of the judge, be admitted to bail pending decision of the appeal.

(B) If an appeal or application therefor is taken by the Commonwealth, upon written motion supported by affidavit, the Appeals Court or the Supreme Judicial Court may determine and approve payment to the defendant of the costs of appeal together with reasonable attorney’s fees, if any, to be paid on the order of the trial court after entry of the rescript or the denial of the application. If the final order grants relief other than a discharge from custody, the trial court or the court in which the appeal is pending may, upon application by the Commonwealth, in its discretion, and upon such conditions as it deems just, stay the execution of the order pending final determination of the matter.

(9) Appeal Under G. L. c. 278, § 33E. If an appeal or application for leave to appeal is taken by the Commonwealth under the provisions of Chapter 278, Section 33E, upon written notice supported by affidavit, the Supreme Judicial Court may determine and approve payment to the defendant of the costs of appeal together with reasonable attorney’s fees to be paid on order of the trial court after entry of the rescript or the denial of the application.

 

Rule 31. STAY OF EXECUTION; RELIEF PENDING REVIEW; AUTOMATIC EXPIRATION OF STAY.

(a) Imprisonment. If a sentence of imprisonment is imposed upon conviction of a crime, entry of an appeal shall not stay the execution of the sentence unless the judge imposing it or, pursuant to Mass. R. App. P. 6, a single justice of the court that will hear the appeal, determines in the exercise of discretion that execution of said sentence shall be stayed pending the determination of the appeal. If execution of a sentence of imprisonment is stayed, the judge or justice may at that time make an order relative to the custody of the defendant or for admitting the defendant to bail.

(b) If the application for a stay of execution of sentence is allowed, the order allowing the stay may state the grounds upon which the stay may be revoked and, in any event, shall state that upon release by the appellate court of the rescript affirming the conviction, stay of execution automatically expires unless extended by the appellate court. Any defendant so released shall provide prompt written notice to the clerk of the trial court regarding the defendant’s current address and promptly notify the clerk in writing of any change thereof. The clerk shall notify the appellate court that will hear the appeal that a stay of execution of sentence has been allowed. At any time after the stay expires, the Commonwealth may move in the trial court to execute the sentence. The court shall schedule a prompt hearing and issue notice thereof to the defendant unless the prosecutor requests, for good cause shown, that a warrant shall issue.

(c) Fine. If a reservation, filing, or entry of an appeal is made following a sentence to pay a fine or fine and costs, the sentence shall be stayed by the judge imposing it or by a single justice of the court that will hear the appeal if there is a diligent perfection of appeal.

(d) Probation or Suspended Sentence. An order placing a defendant on probation or suspending a sentence may be stayed if an appeal is taken.

 

Rule 32. FILING AND SERVICE OF PAPERS

(Applicable to District Court and Superior Court)

(a) Service: When Required. Written motions other than those which are heard ex parte, written notices, and similar papers shall be served upon each of the parties.

(b) Service: How Made. Whenever under these rules or by order of court service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney, unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made in the manner provided for in civil actions.

(c) Notice of Orders and Judgments. If upon the entry of a judgment or order made on a written motion either or both of the parties are not present in court, the clerk shall immediately mail to the absent party or parties a notice of that entry and shall record the mailing in the docket.

(d) Filing. Papers required to be served shall be filed with the court. Papers shall be filed in the manner provided for in civil actions.

(e) Additional Time After Service by Mail. Whenever a party has the right or is required to do an act within a prescribed period after the service of a notice or other paper upon him and the notice or other paper is served upon him by mail, three days shall be added to the prescribed period.

 

Rule 33. COUNSEL FOR DEFENDANTS INDIGENT OR INDIGENT BUT ABLE TO CONTRIBUTE

(Applicable to District Court and Superior Court)

The assignment of counsel for defendants determined to be indigent or indigent but able to contribute shall be governed by the provisions of G. L. c. 211D and Supreme Judicial Court Rule 3:10.

 

Rule 34. REPORT

If, prior to trial, or, with the consent of the defendant, after conviction of the defendant, a question of law arises which the trial judge determines is so important or doubtful as to require the decision of the Appeals Court, the judge may report the case so far as necessary to present the question of law arising therein. If the case is reported prior to trial, the case shall be continued for trial to await the decision of the Appeals Court.

 

Rule 35. DEPOSITIONS TO PERPETUATE TESTIMONY

(Applicable to District Court and Superior Court)

(a) General Applicability. Whenever due to exceptional circumstances, and after a showing of materiality and relevance, it is deemed to be in the interest of justice that the testimony of a prospective witness of the defendant or the Commonwealth be taken and preserved, the judge may at any time after the filing of a complaint or return of an indictment, upon his own motion or the motion of either party with notice to all interested persons, order that the testimony of the witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the judge may direct that his deposition be taken. A copy of a deposition ordered upon the judge’s own motion shall be transmitted to the court by the person administering the deposition. In determining a motion filed pursuant to this rule, the judge may order a hearing or may determine whether exceptional circumstances exist and the materiality and relevance of the testimony on the basis of the supporting affidavit.

(b) Summonses. An order to take a deposition shall authorize the issuance by the clerk of summonses pursuant to rule 17 for the persons and objects named or described in such order. A witness whose deposition is to be taken may be required to attend at any place designated by the trial court, taking into account the convenience of the witness and the parties.

(c) Notice of Taking of Deposition. The party on whose motion a deposition is to be taken shall give all interested persons reasonable written notice of the time and place for the taking of the deposition. If a defendant is in custody, the officer having custody of the defendant shall be notified by the court of the time and place set for the taking of the deposition and shall produce the defendant at that time and place and keep him in the presence of the witness during the taking of the deposition. A defendant not in custody shall have the right to be present at the taking of a deposition, but his failure to appear after notice and without cause shall constitute a waiver of the right to be present and of all objections based upon that right.

(d) Payment of Expenses. Whenever a deposition is taken upon the motion of the Commonwealth, the court shall direct that the reasonable expenses of travel and subsistence of the defendant and his counsel and the witness be paid for by the Commonwealth. Expenses for a deposition taken upon motion of a defendant may be assessed to the defendant to be paid forthwith or in such other manner as the judge may determine.

(e) Scope of Examination. Subject to such additional conditions as the judge may specify and except as otherwise provided in these rules, the taking of depositions in criminal cases shall be in the manner provided for in civil actions. The scope and manner of such examination and cross-examination at the taking of the deposition shall be such as would be allowed in the trial itself.

(f) Objections to Deposition Testimony. Objections to deposition testimony or evidence or parts of thereof and the grounds for the objections shall be stated at the time of the taking of the deposition.

(g) Admissibility. At a trial or upon any hearing, a part or all of a deposition, so far as it is otherwise admissible under the law of evidence, may be used as substantive evidence if the judge finds that the deponent is unavailable or if the deponent gives testimony at the trial or hearing which is inconsistent with his deposition. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. “Unavailable” as a witness includes situations in which the deponent:

(1) is exempt by a ruling of the judge on the ground of privilege from testifying concerning the subject matter of his deposition;

(2) persists in refusing to testify concerning the subject matter of his deposition despite an order of the judge to do so;

(3) lacks memory of the subject matter of his deposition;

(4) is unable to be present or to testify at the trial or hearing because of death or physical or mental illness or infirmity;

(5) is absent from the trial or hearing and the proponent of the deposition has been unable to procure the deponent’s attendance by process or other reasonable means; or

(6) is absent from trial or hearing and his testimony was ordered taken and preserved pursuant to rule 6(d)(2).

A deponent is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his deposition for the purpose of preventing the deponent from attending or testifying.

(h) Notice.

(1) District Court. All interested parties shall be given reasonable notice by the clerk of the time set for hearing motions filed under this rule.

(2) Superior Court. The moving party shall notify all interested parties of the time set for hearing motions filed under this rule at least seven days prior to the hearing.

(i) Deposition by Agreement Not Precluded. Nothing in this rule shall preclude the taking of a deposition, orally or upon written questions, by agreement of the parties with the consent of the judge.

 

Rule 36. CASE MANAGEMENT

(Applicable to District Court and Superior Court)

(a) General Provisions.

(1) Order of Priorities. The trial of defendants in custody awaiting trial and defendants whose pretrial liberty is reasonably believed to present unusual risks to society shall be given preference over other criminal cases.

(2) Function of the Court.

(A) District Court. The court shall determine the sequence of the trial calendar.

(B) Superior Court. The court shall determine the sequence of the trial calendar after cases are selected for prosecution by the district attorney.

(b) Standards of a Speedy Trial. The time limitations in this subdivision shall apply to all defendants as to whom the return days is on or after the effective date of these rules. Defendants arraigned prior to the effective date of these rules shall be tried within twenty-four months after such effective date.

(1) Time Limits. A defendant, except as provided by subdivision (d)(3) of this rule, shall be brought to trial within the following time periods, as extended by subdivision (b)(2) of this rule:

(A) during the first twelve month period following the effective date of this rule, a defendant shall be tried within twenty-four months after the return day in the court in which the case is awaiting trial.

(B) during the second such twelve-month period, a defendant shall be tried within eighteen months after the return day in the court in which the case is awaiting trial.

(C) during the third and all successive such twelve-month periods, a defendant shall be tried within twelve months after the return day in the court in which the case is awaiting trial.

(D) If a retrial of the defendant is ordered, the trial shall commence within one year after the date the action occasioning the retrial becomes final, as extended by subdivision (b)(2) of this rule. The order of an appellate court requiring a retrial is final upon the issuance by the appellate court of the rescript. In the event that the clerk of the appellate court fails to issue the rescript within the time provided for in Massachusetts Rule of Appellate Procedure 23, retrial shall commence within one year after the date when the rescript should have issued.

If a defendant is not brought to trial within the time limits of this subdivision, as extended by subdivision (b)(2), he shall be entitled upon motion to a dismissal of the charges.

(2) Excluded Periods. The following periods shall be excluded in computing the time within which the trial of any offense must commence:

(A) Any period of delay resulting from other proceedings concerning the defendant, including, but not limited to:

(i) delay resulting from an examination of the defendant and hearing on his mental competency or physical incapacity;

(ii) delay resulting from a stay of the proceedings due to an examination or treatment of the defendant pursuant to section 47 of chapter 123 of the General Laws;

(iii) delay resulting from a trial with respect to other charges against the defendant, which period shall run from the commencement of such other trial until fourteen days after an acquittal or imposition of sentence;

(iv) delay resulting from interlocutory appeals;

(v) delay resulting from hearings on pretrial motions;

(vi) delay resulting from proceedings relating to transfer to or from other divisions or counties pursuant to rule 37;

(vii) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement.

(B) Any period of delay resulting from the absence or unavailability of the defendant or an essential witness. A defendant or an essential witness shall be considered absent when his whereabouts are unknown and he is attempting to avoid apprehension or prosecution or his whereabouts cannot be determined by due diligence. A defendant or an essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.

(C) Any period of delay resulting from the fact that the defendant is mentally incompetent or physically unable to stand trial.

(D) If the complaint or indictment is dismissed by the prosecution and thereafter a charge is filed against the defendant for the same or a related offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge.

(E) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is no cause for granting a severance.

(F) Any period of delay resulting from a continuance granted by a judge on his own motion or at the request of the defendant or his counsel or at the request of the prosecutor, if the judge granted the continuance on the basis of his findings that the ends of justice served by taking such action outweighed the best interests of the public and the defendant in a speedy trial. No period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subdivision unless the judge sets forth in the record of the case, either orally or in writing, his reasons for finding that the ends of justice served by the granting of the continuance outweigh the best interests of the public and the defendant in a speedy trial.

(G) Any period of time between the day on which a defendant or his counsel and the prosecuting attorney agree in writing that the defendant will plead guilty or nolo contendere to the charges and such time as the judge accepts or rejects the plea arrangement.

(H) Any period of time between the day on which the defendant enters a plea of guilty and such time as an order of the judge permitting the withdrawal of the plea becomes final.

(3) Computation of Time Limits. In computing any time limit other than an excluded period, the day of the act or event which causes a designated period of time to begin to run shall not be included. Computation of an excluded period shall include both the first and the last day of the excludable act or event.

(c) Dismissal for Prejudicial Delay. Notwithstanding the fact that a defendant is not entitled to a dismissal under subdivision (b) of this rule, a defendant shall upon motion be entitled to a dismissal where the judge after an examination and consideration of all attendant circumstances determines that: (1) the conduct of the prosecuting attorney in bringing the defendant to trial has been unreasonably lacking in diligence and (2) this conduct on the part of the prosecuting attorney has resulted in prejudice to the defendant.

(d) Special Procedures: Persons Serving Term of Imprisonment.

(1) General Provisions. A person serving a term of imprisonment either within or without the prosecuting jurisdiction is entitled to all safeguards afforded him under subdivisions (a), (b), and (c) of this rule in the conduct of any criminal proceeding, subject to the limitations stated herein.

(2) Persons Detained Within the Commonwealth. Any person who is detained within the Commonwealth upon the unexecuted portion of a sentence imposed pursuant to a criminal proceeding is entitled to be tried upon any untried indictment or complaint pending against him in any court in this Commonwealth within the time prescribed by subdivision (b) of this rule.

(3) Persons Detained Outside the Commonwealth. Any person who is detained outside the Commonwealth upon the unexecuted portion of a sentence imposed pursuant to a criminal proceeding, and against whom an untried indictment or complaint is pending within the Commonwealth shall, subsequent to the filing of a detainer, be notified by the prosecutor by mail of such charges and of his right to demand a speedy trial. If the defendant pursuant to such notification does demand trial, the person having custody shall so certify to the prosecutor, who shall promptly seek to obtain the presence of the defendant for trial. If the prosecutor has unreasonably delayed (A) in causing a detainer to be filed with the official having custody of the defendant, or (B) in seeking to obtain the defendant’s presence for trial, and the defendant has been prejudiced thereby, the pending charges against the defendant shall be dismissed.

(e) Effect of a Dismissal. A dismissal of any charge ordered pursuant to any provision of this rule shall apply to all related offenses.

(f) Case Status Reports.

(1) District Court. The First Justice of each division of the District Court shall be advised periodically by the clerk of the status of all cases which have been pending in that court for six months or longer. The report shall be transmitted to the Administrative Justice for the District Court Department.

(2) Superior Court. The Administrative Justice for the Superior Court Department shall be notified by the clerk for each county of the status of all cases which have been pending in that court for six months or longer within the following time periods:

(A) for the first twelve-month period following the effective date of this rule, sixty days after the last day of a sitting;

(B) for the second such twelve-month period, forty-five days after the last day of a sitting;

(C) for the third and all successive such twelve-month periods, thirty days after the last day of a sitting.

Such notice shall include the number of the case, the name of the defendant, the offense charged, the name of defense counsel, if any, and the name of the prosecutor.

 

Rule 37. TRANSFER OF CASES

(Applicable to District Court and Superior Court)

(a) Transfer for Plea and Sentence.

(1) District Court. A defendant against whom a complaint is pending and who appears in District Court, whether under arrest or pursuant to a summons, and against whom a complaint is pending in a division other than that in which he appears, may state in writing that he wishes to plead guilty or nolo contendere, to waive trial in the division in which the other complaint is pending, and to consent to disposition of the case in the division in which he appears. The District Court in which the defendant appears may order that the other complaint be transferred for disposition, subject to the written approval of the prosecutor in each division.

(2) Superior Court. A defendant against whom a complaint or indictment is pending and who appears in Superior Court, whether under arrest or pursuant to a summons, and against whom a complaint or indictment is pending in a county other than that in which he appears, may state in writing that he wishes to plead guilty or nolo contendere, to waive trial in the county in which the other complaint or indictment is pending, and to consent to disposition of the case in the county in which he appears. The Superior Court in which the defendant appears may order that the other complaint or indictment be transferred for disposition, subject to the written approval of the prosecuting attorney in each county.

(3) Effect of Not Guilty Plea. If after a proceeding has been transferred pursuant to subdivision (a) of this rule the defendant pleads not guilty, the clerk shall return the papers transmitted pursuant to subdivision (c) of this rule to the court in which the prosecution was commenced, and the proceeding shall be restored to the docket of that court.

(b) Transfer for Trial.

(1) Transfer for Prejudice. A judge upon his own motion or the motion of a defendant or the Commonwealth made prior to trial may order the transfer of a case to another division or county for trial if the court is satisfied that there exists in the community where the prosecution is pending so great a prejudice against the defendant that he may not there obtain a fair and impartial trial.

(2) Transfer of Other Cases. A judge, upon motion of a defendant made pursuant to subdivision (3) or (4) of rule 9(a), and after taking into account the convenience of the court, the parties, and their witnesses, may with the written approval of the prosecuting attorney in each division or county order the transfer and consolidation for trial of any or all charges pending against the defendant in the several divisions or counties of the Commonwealth.

(c) Proceedings on Transfer. Upon receipt of the defendant’s statement and the written approval of the prosecutor required by this rule, the clerk of the court in which a complaint or indictment is pending shall transfer the papers in the case and any bail taken to the clerk of the court to which the case is transferred. The clerk of the transferee court shall make immediate entry of the case upon the docket of that court and shall so notify the clerk of the transferor court so that the case may be closed on the docket of that court. The prosecution shall continue in the transferee court.

 

Rule 38. DISABILITY OF JUDGE

(Applicable to Superior Court and jury sessions in District Court)

(a) During Trial. If by reason of death, sickness, or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge of that court or properly assigned to that court, upon certifying in writing that he has familiarized himself with the record of the trial, may proceed with and finish the trial.

(b) Receipt of Verdict. Any judge of a court or any judge properly assigned to that court may receive a verdict of the jury.

(c) After Verdict or Finding of Guilt. If by reason of absence, unavailability, death, sickness, or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the judge after a verdict or finding of guilt, any other judge of that court or properly assigned to that court may perform those duties; but if the other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may, in his discretion or upon motion of the defendant, order a new trial.

 

Rule 39. RECORDS OF FOREIGN PROCEEDINGS AND NOTICE OF FOREIGN LAW

(Applicable to District Court and Superior Court)

(a) Records of Courts of Other States or of the United States. The records and judicial proceedings of a court of another state or of the United States shall be competent evidence in this Commonwealth if authenticated by the attestation of the clerk or other officer who has charge of the records of such court under its seal.

(b) Notice of Foreign Law. The court shall upon request take judicial notice of the law of the United States or of any state, territory, or dependency thereof or of a foreign country whenever it shall be material.

 

Rule 40. PROOF OF OFFICIAL RECORDS

(Applicable to District Court and Superior Court)

(a) Authentication.

(1) Domestic. An official record kept within the Commonwealth, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having legal custody of the record, or by his deputy. If the record is kept in any other state, district, commonwealth, territory or insular possession of the United States, or within the Panama Canal Zone or the Trust Territory of the Pacific Islands, any such copy shall be accompanied by a certificate that such custodial officer has the custody. This certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office.

(2) Foreign. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof, or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position (i) of the attesting person, or (ii) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (i) admit an attested copy without final certification, or (ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification.

(b) Lack of Record. A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in subdivision (a)(1) of this rule in the case of a domestic record, or complying with the requirements of subdivision (a)(2) of this rule for a summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry.

(c) Other Proof. This rule does not prevent the proof, by any other method authorized by law, of the existence of, or the lack of, an official record, or of entry, or lack of entry therein.

 

Rule 41. INTERPRETERS AND EXPERTS

(Applicable to District Court and Superior Court)

The judge may appoint an interpreter or expert if justice so requires and may determine the reasonable compensation for such services and direct payment therefor.

 

Rule 42. CLERICAL MISTAKES

(Applicable to District Court and Superior Court)

Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be corrected with leave of the appellate court.

 

Rule 43. SUMMARY CONTEMPT PROCEEDINGS

(Applicable to District Court and Superior Court)

(a) Availability of Summary Proceedings. A criminal contempt may be punished summarily when it is determined that such summary punishment is necessary to maintain order in the courtroom and:

(1) the contemptuous conduct could be seen or heard by the presiding judge and was committed within the actual presence of the court;

(2) the judgment of contempt is entered upon the occurrence of the contemptuous conduct;

(3) the punishment imposed for each contempt does not exceed three months imprisonment or a fine of five hundred dollars.

(b) Nature of the Proceedings. Before making a judgment of contempt and imposing punishment, the presiding judge shall give the contemnor notice of the charges and at least a summary opportunity to adduce evidence or argument relevant to guilt or punishment. If the judge then determines that the sentence he would impose may be in excess of three months imprisonment or a fine of five hundred dollars, he shall bind the contemnor over for trial to be held in accordance with rule 44. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based and shall be signed by the judge and entered on the record. Where the interests of orderly courtroom procedure and substantial justice require, the presiding judge may defer imposition or execution of sentence until after the trial is completed.

(c) Appeal. The contemnor’s only right of appeal shall be to the Appeals Court.

 

Rule 44. CONTEMPT

(Applicable to District Court and Superior Court)

(a) Nature of the Proceedings. All criminal contempts not adjudicated pursuant to rule 43 shall be prosecuted by means of complaint, unless the prosecutor elects to proceed by indictment. Except as otherwise provided by these rules, the case shall proceed as a criminal case in the court in which the contempt is alleged to have been committed.

(b) Special Provisions for District Court. The District Court shall have jurisdiction to try all contempts committed therein except those prosecuted by indictment. Whenever a contemnor asserts his right to a jury trial in District Court, the trial shall be held before a jury in District Court. The contemnor’s only right of appeal shall be to the Appeals Court.

(c) Disqualification of the Judge. The contempt charges shall be heard by a judge other than the trial judge whenever the nature of the alleged contemptuous conduct is such as is likely to affect the trial judge’s impartiality.

 

Rule 45. REMOVAL OF THE DISRUPTIVE DEFENDANT

(Applicable to District Court and Superior Court)

(a) Removal of Defendant. Upon the direction of the trial judge, a defendant may be removed from the courtroom during his trial when his conduct has become so disruptive that the trial cannot proceed in an orderly manner. Gagging or shackling may be employed if the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he shall enter into the record of the case the reasons therefor. Whenever physical restraint of a defendant or witness occurs in the presence of the jury trying the case, or whenever the defendant is removed, the judge, at the request of the defendant, shall instruct the jury that such restraint or removal is not to be considered in assessing the proof and determining guilt.

(b) Defendant’s Rights After Removal. A defendant once removed shall be required to be present in the court building while the trial is in progress. At the time of his removal he shall be advised that he has the right to be returned to the courtroom upon his request and assurances of good behavior. Notwithstanding the failure of a defendant to request to be returned to the courtroom, he shall be returned to the courtroom at appropriate intervals in the absence of the jury, and shall be advised in open court that he will be permitted to remain upon the giving of assurances of good behavior.

 

Rule 46. TIME

(Applicable to District Court and Superior Court)

(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute or rule, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule, “legal holiday” includes any day appointed as a holiday by the President or the Congress of the United States or so designated by the laws of the Commonwealth.

(b) Enlargement. When by these rules or by a notice given thereunder or by order or rule of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if a request therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or (2) upon motion made after the expiration of the specified period to permit the act to be done where the failure to act was the result of excusable neglect; or (3) permit the act to be done by stipulation of the parties; but the court may not extend the time for taking any action under rules 25 and 29 except to the extent and under the conditions stated therein.

(c) For Motions, Affidavits in Superior Court. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served on all interested parties not later than seven days prior to the hearing unless a different period is fixed by these rules or by order of the court. For cause shown, such an order may issue upon an ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion. Opposing affidavits shall be served not later than one day before the hearing, unless the court permits them to be served at a later time.

 

Rule 47. SPECIAL MAGISTRATES

(Applicable to Superior Court)

The justices of the Superior Court may appoint special magistrates to preside over criminal proceedings in the Superior Court. Such special magistrates shall have the powers to preside at arraignments, to set bail, to assign counsel, to supervise pretrial conferences, to mark up pretrial motions for hearing, to make findings and report those findings and other issues to the presiding justice or Administrative Justice, and to perform such other duties as may be authorized by order of the Superior Court. The doings of special magistrates shall be endorsed upon the record of the case. Special magistrates shall be compensated in the same manner as is provided by the General Laws for the compensation of masters in civil cases.

 

Rule 48. SANCTIONS

(Applicable to District Court and Superior Court)

A wilful violation by counsel of the provisions of these rules or of an order issued pursuant to these rules shall subject counsel to such sanctions as the court shall deem appropriate, including citation for contempt or the imposition of costs or a fine.

 

Information provided by Supreme Judicial Court of Massachusetts, Office of Reporter of Decisions. The Rules contained in the most recent print version of Massachusetts Reports is the controlling authority for the Massachusetts Rules of Criminal Procedure.