(Applicable to District Court and Superior Court)

(a) Issuance of Process.

(1) Summons. A defendant not under arrest or otherwise in custody shall, except as provided in subdivision (a)(2) of this rule, be notified of the criminal proceedings against him and of the date of the return day by means of a summons. A copy of the complaint or indictment shall accompany the summons. If the accused is a juvenile, a summons and copy of the complaint or indictment shall also be served upon the parent or legal guardian of the juvenile or upon the person with whom the juvenile resides. Such notice shall also advise the defendant to report in person to the probation department before the return day.

(2) Warrant. The District Court may authorize the issuance of a warrant in any case except where the accused is a juvenile less than twelve years of age. Upon the return of an indictment against a defendant, the Superior Court may authorize the issuance of a warrant. The decision to issue a warrant may be based upon the representation of a prosecutor made to the court that the defendant may not appear unless arrested. If a defendant fails to appear in response to a summons or for any reason is not amenable to service, the prosecutor may request that a warrant issue or may resummon the defendant.

(b) Form.

(1) Warrant. An arrest warrant issued pursuant to this rule shall be signed by the official issuing it and shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. The warrant shall recite the substance of the offense charged in the complaint or indictment. It shall command that the defendant be arrested and brought before the court.

(2) Summons. A summons shall be in the same form as a warrant except that it shall summon the defendant to appear before the court at a stated time and place.

(c) Service or Execution; Return.

(1) By Whom. A summons may be served in the manner provided by subdivision (c)(3) of this rule by any person authorized by the General Laws to serve criminal process. A warrant shall be directed to and executed by an officer authorized by the General Laws to serve criminal process.

(2) Territorial Limits. A summons may be served or a warrant executed at any place within the Commonwealth.

(3) Manner. A summons shall be served upon a defendant by delivering a copy to him personally, or by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by mailing it to the defendant's last known address. A warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in his possession at the time of the arrest, but upon request he shall show the warrant to the defendant as soon as possible. If the officer does not have the warrant in his possession at the time of the arrest, he shall then inform the defendant that a warrant has issued and of the offense charged, but if the officer does not then know of the offense charged, he shall inform the defendant thereof within a reasonable time after arrest.

(4) Return. On or before the return day, the person to whom a summons was delivered for service shall make return thereof to the issuing court. The clerk shall maintain a list of those summonses returned unserved which shall include a statement of the efforts made by the person to whom the summonses were delivered for service to serve them. If a summons is mailed pursuant to subdivision (c)(3) of this rule and returned, the clerk shall record that fact upon the list. The officer executing a warrant shall make return thereof to the issuing court. At the request of the prosecutor any unexecuted warrant shall be returned to the issuing court and may be cancelled by that court upon its own motion or upon the motion of the prosecutor. At the request of the prosecutor made at any time while a complaint or an indictment is pending, a summons returned unserved or a warrant returned unexecuted and not cancelled may be delivered to an authorized person for service or execution.

(d) Default.

(1) Costs. A judge may order that expenses incurred as a result of the entry of a default against a defendant are to be assessed as costs against the defendant.

(2) Preservation of Testimony. If counsel for a defendant is present upon the entry of a default against the defendant and if the judge finds that to require the attendance at a later time of a witness then present in court would constitute a hardship upon the witness because of age, infirmity, illness, profession or other sufficient reason, the judge may order that the testimony of the witness be taken and preserved for subsequent use at trial or any other proceeding. The witness shall be examined in open court by the party on whose behalf he is present and the adverse party shall have the right of cross-examination. The expense of taking and preserving the testimony may be assessed as costs against the defendant.

Reporter's Notes

Rule 6 was drafted with the aim of dispensing with unnecessary appearances by defendants, their counsel, and witnesses and insuring that defendants who are unlikely to flee pending their initial appearance may be at liberty without restriction.

Subdivision (a). Under prior practice, after a finding of probable cause - whether upon an application for issuance of process or upon presentment to a grand jury - arrest warrants were to be issued in the majority of cases. G.L. c. 276, §§ 22 . The issuance of a summons in lieu of a warrant was the exception under the law, if not in practice.

Under G.L. c. 276, §§ 24 , a summons was to be issued only in those instances where the District Court had final jurisdiction over the offense charged and the court believed a summons would sufficiently guarantee the defendant!s appearance in court.

Under this rule the permissible use of a summons is greatly expanded. Whenever it is determined that process shall issue upon an application, the District Court shall authorize the issuance of a warrant, except in cases where the accused is a juvenile less than twelve years of age. G.L. c. 119, §§ 54 . Whenever a direct indictment is returned against a defendant, the Superior Court shall authorize the issuance of a warrant. In both instances, however, the warrant will not be immediately issued for execution unless the court determines that the defendant will not likely appear upon a summons alone.

This rule reflects the policy underlying current efforts to secure the release prior to trial of all defendants who have sufficient roots in the community to guarantee their presence at trial. Federal Rule of Criminal Procedure 4 requires a magistrate to issue a summons rather than an arrest warrant only "upon the request of the attorney for the government" after probable cause is found. Section 3.3 of the ABA Standards Relating to Pretrial Release (Approved Draft, 1968) provides for the use of a summons instead of a warrant except where specific grounds exist for the use of an arrest warrant. Accord Rules of Criminal Procedure (U.L.A.) Rule 221(c) (1974); National Advisory Commission on Criminal Justice Standards & Goals, Courts, Standard 42 (1973). See Vermont R.Crim.P. 4 (1974).

The preference for the issuance of summonses operates to conserve law enforcement resources by releasing the police for other duties, and conserves the resources of the court and parties.

The preference for the issuance of a summons instead of a warrant is based on the same policy mandating the release of arrested defendants on personal recognizance rather than on bail. That policy is bottomed on the belief that defendants should be burdened with the fewest restrictions on their pretrial liberty that will adequately assure their presence at trial.

There is, however, one significant difference between the decision made concerning the issuance of a summons and that concerning the appropriate conditions of release after arrest. When a decision on bail is made, the court or magistrate has more information concerning the defendant than when a summons or warrant is to be issued. In the former instance, the defendant is present before the court and can be questioned in order to establish a sufficient basis for a determination of the appropriate conditions of his release. In addition, under Mass.R.Crim.P. 28, the judge is authorized to review the probation report concerning the defendant prior to the bail determination.

In light of these considerations, it is intended that the court not be prohibited from issuing an arrest warrant where there is an absence of sufficient information to make an intelligent choice concerning the appropriate process to be issued. Where there is a dearth of information concerning the defendant, it is expected that the court will place much reliance upon the nature of the offense charged and will order the arrest of defendants charged with serious crimes. An arrest in such situations will not unduly prejudice a defendant, because, if he is suitable for pretrial release on his own recognizance, the court can so order when the defendant is initially brought before it after arrest.

Subdivision (a)(1) provides that, except when the issuance of a warrant is necessitated, the defendant is to be notified of the criminal proceedings against him and the date of his scheduled appearance by means of a summons coupled with a copy of the complaint or indictment. See Rules of Criminal Procedure (U.L.A.) Rule 222(d) (1974). This notice shall also advise the defendant to personally report to the probation department before his scheduled appearance for the purpose of an interview to determine whether counsel need be assigned. If the defendant has retained counsel, and counsel has filed his appearance, the defendant need not attend until his next scheduled appearance.

Subdivision (a)(1) also deals with the requirement of G.L. c. 119, §§ 55 that notice to the parent or guardian of the defendant is necessary when the accused is a juvenile. Although notice to and appearance by a parent or guardian is thus required, nothing in this rule is to be construed as making the parent or guardian of the juvenile a party defendant. Robinson v. Commonwealth, 242 Mass. 401 , 403 (1922).

Subdivision (a)(2) provides that upon the prosecuting officer's recital to the court that the defendant will not appear unless arrested, a warrant may be issued. This is less restrictive than the guidelines provided by the ABA Standards Relating to Pretrial Release, § 3.3 (Approved Draft, 1968), which require an application for an arrest warrant to reveal the defendant's residence, employment, family ties, criminal record, and whether he had previously responded to a citation or summons. If a magistrate fails to issue a summons instead of an arrest warrant, he is required to state the reason therefor. Compare Rule 221(c) of the Uniform Rules of Criminal Procedure (U.L.A.) (1974).

The factors to be considered by the court in its decision upon the conditions necessary to assure the defendant's presence are reflected in the Rules of the Superior Court Governing Persons Authorized to Take Bail 2 (1972):

The purpose of setting terms for any pretrial release is to assure the presence at court of the person released. Any person charged with an offense, other than an offense punishable by death [sic], is required by law to be released on his personal recognizance pending trial unless the person setting the terms of release determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required. In making a determination as to what form of release to set, the following factors shall be considered: (1) the nature and circumstances of the offense charged, (2) the accused's family ties, (3) his financial resources, (4) his length of residence in the community, (5) his character and mental condition, (6) his record of convictions and appearances at court proceedings or of any previous flight to avoid prosecution or (7) any failure to appear at any court proceedings.

Accord G.L. c. 276, §§ 58 (as amended, St.1978, c. 478, § 286).

Moreover, this subdivision provides that if a defendant fails to respond to summons, then the court may order that a warrant issue, or may permit the defendant to be served with a new summons. This accords with practice under G.L. c. 276, §§ 26 , which makes the willful failure to appear in response to criminal process a separate offense. See ABA Standards Relating to Pretrial Release § 1.3 (Approved Draft, 1968); Rules of Criminal Procedure (U.L.A.) rule 221(e)(2) (1974).

Subdivision (b). General Laws c. 276, §§ 21 , c. 218, §§ 33 (as amended, St.1978, c. 478, § 191), and c. 218, § 85 (as amended, St. 1978, c. 478, § 192) enumerate those officials who are empowered to issue arrest warrants.

Subdivision (b)(1) restates the Massachusetts practice, dating from Commonwealth v. Crathy, 92 Mass. (10 Allen) 403 (1865), which requires that if the warrant does not contain a name by which the accused is known, it must contain a sufficient description by which the arresting officer will be able to identify the accused with reasonable certainty, This subdivision follows the practice in Massachusetts which mandates that the warrant shall recite the substance of the accusation, G.L. c. 276, §§ 22 , a requirement fulfilled at common law by attaching the complaint or a copy thereof to the warrant. Commonwealth v. Dean, 75 Mass. (9 Gray) 283 (1857). General Laws c. 276, §§ 22 details the procedure to be followed by the arresting officer when the accused is located.

Support for the rule that the warrant must be directed to an officer authorized to serve criminal process is found in In re Graves, 236 Mass. 493 (1920). In Graves, the court held that a warrant which by express direction would have permitted unqualified persons to execute it was invalid on its face.

Subdivision (c)(3) is also borrowed from ALI Model Code of Pre-Arraignment Procedure § 120.3(2) (P.O.D.1975), and is similar to Rules of Criminal Procedure (U.L.A.) rule 223(c) (1974). The ALI Model Code, supra, § 120.4, permits service of the summons by mail.

It is well established in Massachusetts that an officer need not have the warrant authorizing the arrest in his possession when the accused is placed under arrest. This principle is grounded on the judicial determination that an arrest is valid if based on probable cause even if the warrant upon which the arrest was made is void. Commonwealth v. Bowlen, 351 Mass. 655 (1967). However, if the arrest is based upon a warrant, the accused should be afforded an opportunity to examine it within a reasonable time.

Subdivision (c)(4) complies substantially with Rule 225 of the Rules of Criminal Procedure (U.L.A.) (P.O.D.1975) and with Fed.R.Crim.P. 4(c)(4).

General Laws c. 218, §§ 32 states that warrants are returnable before a court in the county where trial of the case is to be held. The only restrictions on the time in which a warrant must be executed is that a delay in its execution must not be unreasonable. See generally Commonwealth v. Sullivan, 354 Mass. 598 (1968). However, if execution of the warrant is wilfully delayed by the person to whom it was committed for service, that person is subject to the penalties provided by G.L. c. 268, §§§§ 22-23 irrespective of whether the warrant is valid.

Subdivision (d). This subdivision introduces two new practices. The first, in subdivision (d)(1), allows the court to assess as costs against the defendant those expenses which result from the defendant's failure to appear. While the assessment is discretionary, it is intended to be exercised only upon the willful default of a defendant and as to those costs which directly result therefrom. As under Mass. R.Crim.P. 10(b) , relating to assessment of costs upon a continuance, expenses which may be assessed under this rule include fees of witnesses then present, extra compensation of police officers, travel costs, and stenographer's attendance fees if one is appointed.

Subdivision (d)(2) provides that if a witness is present in court and the trial cannot proceed because the defendant is absent, the testimony of that witness may be ordered taken and recorded by deposition. This is an extraordinary practice, and is to be utilized only when to require the later appearance of the witness would constitute a hardship due to his age, infirmity, profession or other sufficient reason. "Profession" in this context does not signify solely the recognized professions, but refers to the manner of earning a livelihood of one who will lose income or wages if required to attend further proceedings.

There is no issue as to confrontation in this situation. A defendant has the right to be present at the taking of a deposition, see Mass.R.Crim.P. 18(a) , but "his failure to appear after notice and without cause shall constitute a waiver of the right to be present." Mass.R.Crim.P. 35(c) . This subdivision is but a logical extension of that provision. The defendant has had notice to appear for trial and has chosen to absent himself. It is assumed for purposes of this rule that defendant's counsel is present to examine or cross-examine the deponent and to preserve objections to his testimony. Thus the essential need of the defendant to be present is fulfilled.

The defendant is protected from a "default" by the Commonwealth by Mass.R.Crim.P. 10(c) , pursuant to which the court may order that the taking of depositions of Commonwealth witnesses be made a condition upon the grant of a continuance.