Supreme Judicial Court, September 27, 2013

When the defendant and the Commonwealth have agreed to stipulate to the existence of an element in a case, the stipulation should be placed before the jury before the close of the evidence.  This  rule is consistent with United States v. Muse, 83 F.3d at 679 "[w]hile a valid stipulation relieves the prosecution of the burden of producing any other evidence in order to establish the fact stipulated, it does not relieve the prosecution from the 'burden of proving every element of the crime' beyond a reasonable doubt [citation omitted].”  

The Court rejected the defendant's argument that any stipulation between the Commonwealth and the defendant as to an element of a crime, no matter when the stipulation is agreed to, must be in writing and signed by him or the subject of a colloquy between the defendant and the trial judge.    “But in light of Mass. R.Crim. P. 11(a)(2)(A), as appearing in 442 Mass. 1509 (2004), directing that any stipulation to the existence of a material fact contained in a pretrial conference report be signed by the defendant himself, we shall ask this court's standing committee on the rules of criminal procedure to consider whether it would be appropriate to adopt by rule a requirement similar to rule 11(a)(2)(A), that would apply to stipulations first entered into at or immediately before trial.”