(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.

Reporter's Notes

Subdivision (a). Rule 4(a) is a restatement of Massachusetts statutory law. A caption is required for indictments and complaints by G.L. c. 277, §§ 17, 79 . See 30 Mass. Practice Series (Smith) § 342 (1970). Although the indictment or complaint may contain more than one count (see Mass.R.Crim.P. 9(a)(2) , (b) ), a single caption is sufficient. G.L. c. 277, §§ 17, 79 .

The statement of the charges can be in the form of a description of the criminal act or in the form of a legal term descriptive of the act. "The words used in a statute to define a crime, or other words conveying the same meaning, may be used." G.L. c. 277, § 17. An indictment or complaint must, however, set forth all the elements of the crime charged and if a statute does not contain all those elements, an indictment or complaint drawn in terms of that statute is insufficient. G.L. c. 277, § 17; Commonwealth v. Palladino, 358 Mass. 28 (1970). The forms established by G.L. c. 277, § 79 contain sufficient descriptions of the crimes listed therein.

To survive a motion to dismiss, an indictment (together with a bill of particulars, if any. See Rule13(b) ) must describe the offense charged "'fully, plainly, substantially and formally,' with as much certainty as the known circumstances of the case ... [will] permit." Commonwealth v. Soule, 6 Mass.App.Ct. 973 (1979) (Rescript). Accord Commonwealth v. Burke, 339 Mass. 521 , 523, 159 N.E.2d 856, 77 A.L.R.2d 451 (1959); Commonwealth v. Gill, 5 Mass.App.Ct. 337 (1977).

Subdivision (b). General Laws c. 276, § 22 provides that a complainant is to be examined "on oath" and that the complaint is to be "subscribed by the complainant." While this requirement has been strictly construed, Commonwealth v. Barbight, 75 Mass. (9 Gray) 113 (1857), there is no requirement that the statements offered in support of the issuance of process be based on personal knowledge or observation. A complainant may properly present statements of which he has no first-hand knowledge. Commonwealth v. Dillane, 77 Mass. (11 Gray) 67 (1858). The practice in many courts where a single officer presents applications for issuance of process for offenses of which he has no first-hand knowledge is not only appropriate, but a sound administrative procedure. District Court Standards of Judicial Practice, THE COMPLAINT PROCEDURE, standard 3:23, commentary at 41-42 (1975). Rule 4(b) authorizes the signing of the complaint by persons other than the arresting officer in order to avoid requiring the officer's presence at any time prior to the probable cause hearing or trial. The subdivision is grounded in the desire to avoid removing an officer from his regular work shift to execute the mere formality of personally signing the complaint.

Subdivision (c). This subdivision of the rule refers to hearsay and other types of evidence which may be inadmissible at trial, but may properly be considered by a grand jury. Commonwealth v. Gibson, 368 Mass. 518 (1975), reaffirmed the long-recognized rule in the Commonwealth that evidence which is not legally competent at trial is sufficient upon which to base an indictment, and that an indictment which is in fact based exclusively upon hearsay will not be invalidated at trial for that reason. Commonwealth v. Woodward, 157 Mass. 516 (1893); Commonwealth v. Walsh, 255 Mass. 317 (1926); Commonwealth v. Ventura, 294 Mass. 113 (1936); Commonwealth v. Lammi, 310 Mass. 159 (1941); Commonwealth v. Geagan, 339 Mass. 487 (1959), cert. denied, 361 U.S. 895; Commonwealth v. Monahan, 349 Mass. 139 (1965); Commonwealth v. Beneficial Finance Co., 360 Mass. 188 , 275 N.E.2d 33, 52 A.L.R.3d 1143 (1971).

The United States Supreme Court, in Costello v. United States, 350 U.S. 359 (1956), disposed of constitutional arguments against the practice, holding "[a]n indictment returned by a legally constituted and unbiased grand jury ... is enough to call for a trial of the charge on the merits. The Fifth Amendment requires nothing more." Id. at 363. The Court affirmed and expanded upon this holding in United States v. Dionisio, 410 U.S. 1 (1973), in which it stated that:

A grand jury has broad investigative powers to determine whether a crime has been committed and who has committed it. The jurors may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge.

Id. at 15. More recently, that Court has said, "[t]he grand jury's sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered." United States v. Calandra, 414 U.S. 338 , 344-45 (1974).

Subdivision (d). This subdivision for the most part restates prior Massachusetts practice. The substance of this subdivision was taken from G.L. c. 277, § 35A, but a significant modification of the statute has been effected. The change involves the expansion of the right to seek amendments. Under the statute, only the prosecutor could move for amendment of a complaint or indictment; under the rule either party can seek amendments, and the court can allow amendments on its own motion.

It is preferable that a party seeking an amendment of the charges file a written motion to that effect in order that a sufficient record be preserved on that issue should there be an appeal. However, a court may allow an amendment upon oral motion. In such event, or in the event that the court amends the charges on its own motion, the court should make certain that the amendment, as well as the charges as originally framed, are made a part of the record.

The most common prejudice resulting from an amendment of the charges is that the amendment materially alters the substantive offense charged. See Commonwealth v. Gallo, 2 Mass.App.Ct. 636 (1974). Such an amendment would be one of substance and not of form and would thus be impermissible. Commonwealth v. Snow, 269 Mass. 598 , 603, 169 N.E. 542, 68 A.L.R. 920 (1930). An unessential element of a crime charged in an indictment or complaint, such as the time of stealing in larceny, may be amended without prejudice to the defendant. Commonwealth v. Jervis, 368 Mass. 638 , 643-44 (1975). See Commonwealth v. Grasso, 375 Mass. 138 (1978); Commonwealth v. Sitko, 372 Mass. 305 (1977).

One test for determining whether an amendment is one of substance or of form is whether an acquittal on the original charge would act as a bar on double jeopardy grounds to a prosecution of the defendant on the amended charges. If not, then the amendment would be deemed one of substance rather than of form. Commonwealth v. Snow , supra.

Although the power of the court to amend indictments under this rule and under existing statutory law is the same as its power to amend complaints, it should be noted that the restrictions on its power to allow amendment of indictments reaches constitutional dimensions. Since defendants charged with felonies have the constitutional right to indictment ( Jones v. Robbins, 74 Mass. [8 Gray] 329 [1857]; see Reporters' Notes to Rule, supra), an amendment which goes to the substance of the offense charged in an indictment so as to "materially change the work of the grand jury" interferes with the defendant's right to have a grand jury frame those charges upon which he is to be tried. Commonwealth v. Benjamin, 358 Mass. 672 , 679 (1971); Commonwealth v. Ohanian, 6 Mass.App.Ct. 965 (1979).

As to complaints, the power of the court is not so restricted. Therefore, the District Court judge should review each complaint carefully to assure that it fulfills the statutory requirements. If it does not, the judge should order it amended. This course of action will prevent defective complaints from entering the Superior Court system after a waiver of indictment. Further, if during a probable cause hearing it appears to the judge that the evidence would warrant charges of other or related offenses, he should order a new complaint to be prepared.