(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.

Reporter's Notes

Rule 38 has no counterpart in the statutory or case law of the Commonwealth. The rule closely parallels Fed.R.Crim.P. 25, although there is some deviation. See Rules of Criminal Procedure (U.L.A.) Rule 741 (1974); ABA Standards Relating to Trial by Jury (2d ed., Approved Draft, 1978). 

Subdivision (a). This subdivision is drawn nearly verbatim from ABA Standards Relating to Trial by Jury § 4.3 (Approved Draft, 1968), differing in that under the rule the substituted judge must be of the same court in which the proceeding is held, or properly assigned to that court. It has been intimated that the federal analogue to this subdivision, Fed.R.Crim.P. 25(a), is open to constitutional inquiry. 2 C. WRIGHT, FEDERAL PRACTICE & PROCEDURE: CRIMINAL § 392 (1969, Supp.1978). It is suggested further, however, that no substantial constitutional infirmity exists if a defendant consents to the substitution of judges during the trial. Id. See Rules of Criminal Procedure (U.L.A.) Rule 741(e) (1974), which would require the parties’ consent to the substitution of a specified judge. Whether or not constitutionally mandated, it would be the better practice to obtain the defendant’s consent to substitution in writing to be made a part of the record. 

Subdivision (b). This subdivision constitutes the most significant departure from Federal Rule 25. It is felt that the receipt of a verdict is a court function ministerial in nature and need not be performed by the judge who presided at trial. Subdivision (b) is intended to implement the efficient use of judicial manpower by permitting a single judge to take verdicts in more than one trial and to circumvent the need for a judge to interrupt other business to receive a verdict. 

Subdivision (c). The constitutionality of the federal equivalent of this subdivision, Fed.R.Crim.P. 25(b), was questioned as to the power of a substitute judge to act in the case. Its validity was sustained in Connelly v. United States , 249 F.2d 576 (8th Cir.1957), cert. denied 356 U.S. 921 (1958). See Rules of Criminal Procedure (U.L.A.) Rule 741(f) (1974). 

The power granted to the succeeding judge to “perform the duties to be performed by the court after a verdict or finding of guilt” is intended to encompass the authority and duty to hear post-conviction proceedings under Mass.R.Crim.P. 30. See former G.L. c. 278, § 31A, which permitted a substitute justice to examine and allow or disallow a bill of exceptions. 

The final clause of subdivision (c) gives rise to potential problems of constitutional dimension regarding the ordering of a new trial by a successor judge. Under this rule, the successor judge may order such a trial “in his discretion, or upon motion of the defendant....” A new trial in the latter situation raises no issue and is supported by precedent. See United States v. Tateo , 377 U.S. 463 (1964). 

Regarding the former situation, however, for a trial judge to grant a new trial sua sponte, and presumably, over defendant’s objection, may raise fifth amendment problems of double jeopardy. 2 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL § 551 at 483 (1969, Supp.1978). See United States v. Smith , 331 U.S. 469, 474-75  (1947). 

The current law with respect to the double jeopardy implications of a declaration of a mistrial over a defendant’s objections involves a balancing of competing interests: 

A defendant has a ‘valued right to have his trial completed by a particular tribunal.’ [citations omitted]. Because of this right, a court may not declare a mistrial without consent of the defendant unless there is a ‘manifest necessity for the act, or the ends of public justice would otherwise be defeated.’ [citations omitted]. 

United States v. Lansdown , 460 F.2d 164, 168 (4th Cir.1972). See Wade v. Hunter , 336 U.S. 684, 689 (1949). 

This doctrine of “manifest necessity,” enunciated in the early case of United States v. Perez , 22 U.S. 579 (9 Wheat.) 579 (1824), remains consistently adhered to and approved by the Supreme Court. Illinois v. Somerville , 410 U.S. 458 (1973); United States v. Jorn , 400 U.S. 470 (1971). See also United States v. Wilson , 95 S.Ct. 1013, 420 U.S. 332, 344, 43 L.Ed.2d 232 (1975). 

At the same time, the Perez formulation, the Supreme Court has emphasized, is not so rigid as to be mechanically applied: 

This formulation ... abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial. The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated in decisions of this court. 

Illinois v. Somerville, supra at 462 (Emphasis added). 

The relatively rare, if not unique, issue posed by subdivision (c) presents several new considerations. The “broad discretion reserved,” Illinois v. Somerville, supra, will be wielded in this context by a successor to the disabled trial judge. Furthermore, the Court’s admonition that trial judges must not “foreclose the defendant’s option” to proceed to the first jury until they have completed a “scrupulous exercise” of their discretion, United States v. Jorn, supra at 485, takes on heightened significance where, as here, the defendant has already gone to the first jury. 

Nevertheless, it is submitted that the Perez doctrine as refined by the Court today applies to the post-verdict situation in this subdivision. See Illinois v. Somerville, supra at 467, where the Court intimates a distinction between mistrials declared prior to and those declared after verdict. Thus, in the careful exercise of his discretion, a trial judge, or successor judge, must weigh the defendant’s “valued right to have his trial completed by a particular tribunal” against “the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, supra at 689. If the judge, then, “is satisfied that he cannot perform ... [the post-verdict duties of the court], he may ... order a new trial” without unconstitutionally subjecting a defendant to double jeopardy.

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