(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.

Reporter's Notes

Rule 25 is derived with a minimum of change from former G.L. c. 278, § 11 (St.1964, c. 108, §§ 1, 2) and conforms in substance to Fed.R.Crim.P. 29. See ABA Standards Relating to Trial by Jury § 4.5 (Approved Draft, 1968); Rules of Criminal Procedure (U.L.A.) rule 522 (1974); Vt.R.Crim.P. 29; Me.R.Crim.P. 29. 

The practical effect of this rule is to abolish the common law motion for a directed verdict and to substitute therefor a motion for a required finding of not guilty. This is essentially a change in terminology and does not presume to alter practice as it has developed relative to the directed verdict. The new term is not unknown in Massachusetts practice. See e.g., Commonwealth v. Coyne , 372 Mass. 599 (1977). Motion for findings of not guilty are a part of Massachusetts practice in the context of nonjury cases, see e.g., Commonwealth v. Pursley , 2 Mass.App. Ct. 910, 321 N.E.2d 830 (1975) (Rescript), and are extended by this rule to include jury trials in recognition of the fact that juries have no proper function in this area. See ABA Standards Relating to Trial by Jury § 4.5(a), comment at 106-08 (Approved Draft, 1968). 

Subdivision (a). The requirement that the court rule on a defendant's motion made at the close of the Commonwealth's case at the time such motion is made has recently been added to Massachusetts procedure. See Commonwealth v. Kelley , 370 Mass. 147, 149-50 (1976). This rule adopts this approach because of the difference between such a motion and a motion made at the close of all the evidence: in either case a defendant is requesting a judgment on the basis of evidence then before the court, but that evidence is very different at each of the two stages of trial. See ABA Standards Relating to Trial by Jury § 4.5(b), comment at 108 (Approved Draft, 1968). 

On a defendant's motion for a directed verdict at the close of the Commonwealth's case, the defendant's rights become “fixed.” If this motion is improperly denied on the basis of the condition of the case when the motion was made, the defendant is entitled to a reversal of the judgment, notwithstanding the introduction of further evidence. Of course, the Commonwealth's proof might deteriorate between the time the Commonwealth rests and the close of all the evidence. In such a case, on renewal of his motion, the defendant's rights would be reappraised in consideration of all the evidence. Commonwealth v. Kelley, supra, at n. 1; Commonwealth v. Blow , 370 Mass. 401, 407 n. 4 (1976); Commonwealth v. Aguiar , 370 Mass. 490, 498 (1976). Under this rule the defendant may offer evidence in his defense without having reserved that right. Fairness requires this result. As the court stated in Jackson v. United States , 250 F.2d 897 (5th Cir.1958), the motion “would be a futile thing if the court could reserve its ruling and force the defendant to an election between resting and being deprived of the benefit of his motion,” Id. at 901, because the defendant would be compelled to forfeit either his right to move for acquittal or his right to present evidence in his defense. 

Subdivision (b)(1). This subdivision permits the court to reserve a decision on a motion made at the close of all the evidence. The objection stated in the Jackson case, supra, is not present in this situation, and G.L. c. 278, § 11 in fact expressly condoned the propriety of what often is referred to as a judgment notwithstanding the verdict. 

Subdivision (b)(2). By giving the court the power to enter a finding of guilty of any lesser included offense or, in the language of G.L. c. 278, § 33E , a lesser degree of guilt, after a verdict of guilty, this rule deviates sharply from prior criminal practice under G.L. c. 278, § 11 . Commonwealth v. Jones , 366 Mass. 805 (1975). This has the practical effect of extending to the trial courts, post-verdict, a power in all cases much like that which had previously been reserved to the Supreme Judicial Court in capital cases under G.L. c. 278, § 33E (as amended). This increases the options available to the trial judge after verdict. It is anticipated that through this extension greater judicial economy will result where the evidence will not support the charge, but where the weight of the evidence clearly requires the conviction of a lesser included offense. See Jones, supra. 

It should be noted that the motion for a new trial which may be made under this subdivision is in addition to those rights which a defendant has under Rule 30(b). Obviously the court should order a new trial pursuant to this rule only upon motion of a defendant since otherwise the subsequent proceeding would be subject to constitutional attack on double jeopardy grounds.

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