(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.
The right to trial by jury, which is guaranteed by art. 3, § 2, cl. 3 of the United States Constitution and the sixth amendment, is applicable to the states through the fourteenth amendment. Duncan v. Louisiana , 391 U.S. 145 (1968). The Massachusetts Constitution, part 1, art. 12, also guarantees defendants the right to trial by jury. Further, G.L. c. 278, § 2 , applicable to the Superior Court, provides that “[i]ssues of fact ... shall ... be tried by a jury ... unless the person indicted or complained against elects to be tried by the court....” General Laws c. 218, § 26A , inserted by St.1978, c. 478, § 188, provides that trials in the District Court and the Boston Municipal Court “shall be by a jury of six, unless the defendant files a written waiver and consents to be tried by the court....” Under prior law a juvenile defendant had no right to a trial by jury during the adjudicative phase of a delinquency proceeding. McKeiver v. Pennsylvania , 403 U.S. 528 (1971); Commonwealth v. Page , 339 Mass. 313, 316 (1959). However, by G.L. c. 119, § 55A , inserted by St.1978, c. 478, § 56, delinquency proceedings shall be by jury unless waived. If a juvenile appeals from an adjudication of delinquency in a jury waived session, his appeal to the jury session will be tried and determined in like manner as an appeal by an adult criminal defendant. G.L. c. 119, § 56 (as amended, St.1978, c. 478, § 57). See Sylvester v. Commonwealth , 253 Mass. 244 (1925).
Subdivision (a). This subdivision is drawn from Fed.R.Crim.P. 23(a) and G.L. c. 119, § 55A ; c. 218, § 26A ; c. 263, § 6 . The requirement that the waiver be in writing is not universal. See ABA Standards Relating to Trial by Jury, § 1.2(b) (Approved Draft, 1968); Rules of Criminal Procedure (U.L.A.) rule 511 (1974). In Boykin v. Alabama , 395 U.S. 238 (1969), the Court held that a waiver of a jury trial cannot be presumed from a silent record. While Boykin would be satisfied by an oral waiver when the proceedings are recorded, the requirement in Massachusetts is that the waiver be written and filed with the clerk. Commonwealth v. Hesser , 1 Mass.App.Ct. 850 (1973) (Rescript); Gallo v. Commonwealth , 343 Mass. 397, 402 (1961); G.L. c. 263, § 6 . The federal rule imposes this stricter requirement “to ensure a greater probability of a defendant understanding what he is doing....” Pool v. United States , 344 F.2d 943, 945 (9th Cir.1966). Likewise, the Massachusetts rule seeks to “avoid unnecessary controversy and to provide a procedural safeguard....” Gallo v. Commonwealth, supra.
“A waiver is ... an intentional relinquishment or abandonment of a known right....” Johnson v. Zerbst , 304 U.S. 458, 464 (1938). Waiver of a constitutional right must be “intelligent and competent.” Id. at 465. The waiver of the right to a jury trial must be “express and intelligent.” Patton v. United States , 281 U.S. 276, 312 (1930). Subdivision (a) incorporates that portion of the federal rule which provides that a waiver of trial by jury must be approved by the court. Although a defendant is free to waive his jury trial, Patton, supra, there is no constitutional impediment to conditioning that waiver upon the consent of the trial judge. Singer v. United States , 380 U.S. 24, 36 (1965) (construing Fed.R.Crim.P. 23[a] ). See ABA Standards Relating to Trial by Jury § 1.2(a), comment at 32-34 (Approved Draft, 1968). The defendant in a capital case may not waive a jury trial in any event. G.L. c. 263, § 6 (as amended); Commonwealth v. O'Brien , 371 Mass. 605 (1976). Accord Commonwealth v. Marshall , 373 Mass. 65 (1977) .
The decision whether to waive trial by jury is properly that of the defendant after full consultation with counsel. ABA Standards Relating to the Defense Function § 5.2 (Approved Draft, 1971).
If there are multiple defendants and one desires to waive the right to trial by jury, then all must waive. United States v. Farries , 459 F.2d 1057, 1061 (3d Cir.), cert. denied, 409 U.S. 888 (1972), 410 U.S. 912 (1973). In a rare case, severance may be the best course if not all defendants choose waiver. In Farries, however, the enormous expense and serious security problems involved in a trial where the defendants and many witnesses were inmates of various federal penitentiaries was held to outweigh the interests of a defendant in severance.
Subdivision (b). This subdivision is in accord with current Massachusetts practice as stated in G.L. c. 234, § 26A. The provision authorizing the court to disallow a waiver of the right to be tried by a full jury is not inconsistent with prior law even though a similar provision does not appear in G.L. c. 234, § 26A. See Commonwealth v. Roby , 29 Mass. 496, 502 (1832). Compare United States v. Jorn , 400 U.S. 470 (1971).