(a) Scope of Rule; Applicability of Rules 1 Through 9.

All criminal proceedings in the District Court primary courts and jury sessions in Essex and Hampden Counties shall be governed by Rules 1 through 9 of these rules, except as they are modified herein.

(b) Notice of Right to Jury Trial; Waiver of Right.

Except as modified below, Rule 2 shall govern notice to the defendant of the right to jury trial and waiver of that right

RULE 2. NOTICE OF RIGHT TO JURY TRIAL; WAIVER OF RIGHT

(A) Notice of Right; Decision on Waiver.

Every defendant appearing in the District Court Department in a case over which the court will exercise final jurisdiction shall be notified of his or her right to jury trial. Such notice shall be given orally to the defendant by the judge or by the session clerk at arraignment, provided that the defendant is represented by counsel or has waived counsel. If the defendant does not have counsel or does not waive counsel at arraignment, the notice shall be given as soon as the defendant thereafter appears before the court with counsel or having waived counsel.

The oral notice of right to jury trial shall include a statement to the defendant that, if he or she waives this right, he or she will receive a trial before a judge.

In the primary court the defendant shall decide whether or not he or she will waive the right to jury trial after completion of the pretrial conference and the hearing on the pretrial conference report, and after completion of the guilty plea or admission procedure, if any, and withdrawal of the plea or admission, if any. In the jury session, the defendant shall decide whether or not he or she will waive the right to jury trial no later than the commencement of trial. The defendant shall not be required to decide on waiver of the right to jury trial in either the primary court or jury session until disposition or withdrawal of any pretrial discovery motion Med in accordance with the Massachusetts Rules of Criminal Procedure and compliance with any court order issued in conjunction therewith.

(B) Procedure for Waiver of Right.

If in the primary court the defendant decides to waive the right to jury trial and consents to be tried by the court, he or she shall so indicate on the form promulgated by the Chief Justice of the District Court Department.

Before the defendant signs this form the judge shall be satisfied that the waiver is voluntarily and knowingly made and to that end shall advise the defendant and be sure the defendant understands that by waiving jury trial he or she is losing the constitutional right to trial by jury, and satisfy himself or herself that the defendant's waiver is not the product of pressure and that the defendant is not intoxicated or otherwise incapable of rational judgment, and shall receive from defense counsel a properly executed certificate, signed by counsel, indicating that he or she has made all the necessary explanations and determinations regarding such waiver. Such certificate shall be set forth on the form prescribed therefor by the Chief Justice of the District Court Department.

When the judge determines it to be necessary, the judge should also inform the defendant of the essential elements of the jury trial, i.e. that the jury consists of members of the community; that the defendant may participate in their selection; that the jury verdict must be unanimous; that they decide guilt or innocence while the judge makes rulings of law and, when guilt is found, imposes sentence; and that when no jury is involved the judge alone decides guilt or innocence.

(C) Appeal.

Rule 7 of the District Court Supplemental Rules of Criminal Procedure shall not apply to criminal cases in the District Court primary court and jury sessions in Essex and Hampden Counties. Appeals on issues of law in such cases shall be governed by the applicable statutes and the Massachusetts Rules of Appellate Procedure.

Adopted June 9, 1987, effective July 1, 1987.

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