(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.

Reporter's Notes

Provisions comparable to Rule 26 are found in Fed.R.Crim.P. 23(c) and Rules of Criminal Procedure (U.L.A.) Rule 511(e) (1974). In addition, this rule reflects existing practice under District Court Rule 27 (1972) and Superior Court Rule 70 (1974), which deal with requests for rulings of law in non-jury trials. This rule is intended to secure for the purpose of review a separation of law from fact in cases where the trial judge acts both as factfinder and applier of law. See Caleb Pierce, Inc. v. Commonwealth , 354 Mass. 306 (1968). 

Although much of the case law concerning requests for rulings has arisen out of the litigation of civil actions, see SUPERIOR COURT RULES, 1974, ANNOTATED 290-96 (Mass.Bar Ed.1975), a rule which provides the court with adequate opportunity to pass upon the soundness of requested rulings is equally appropriate in criminal practice. Commonwealth v. Hassan , 235 Mass. 26, 31 (1920). 

Requiring the requests to be made before the beginning of closing arguments serves the function of apprising opposing counsel of the law under which the case will be decided. In Wilson v. United States , 250 F.2d 312, 324 (9th Cir.1957), the court recognized that the failure to honor requests for rulings on the law could hinder the administration of justice, since there is no real difference between the giving of improper instructions in a jury trial and the judge in a nonjury trial effectually instructing himself improperly on the law. 

The failure to present written requests seasonably, however, which results in a trial judge's refusal to allow such requests, vitiates any claim of error in the refusal. Commonwealth v. Lammi , 310 Mass. 159, 164 (1941). It is a matter within the sound discretion of the trial judge whether to grant special leave for requests. See Finkelman v. Kaufman , 337 Mass. 770 (1958) (Rescript). 

It should be noted that under this rule requests are to be made for rulings of law only, and not for findings of fact. Neither this rule nor the prior practice in the Commonwealth requires a judge to honor requests for findings of fact. Stella v. Curtis , 348 Mass. 458, 461 (1965).

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