Appeals Court (March 27, 2008)

The defendant's failure to submit a written waiver and the judge's failure to have a colloquy do not nullify a jury waiver under M.G.L. c. 123A. The better practice, however, is to have the Commonwealth ensure that there is a colloquy and a written waiver.

The defendant was committed as a sexually dangerous person after a jury-waived trial. On appeal, the defendant claimed that his right to a jury trial under G.L. c. 123A, § 14(a), was not affirmatively waived.

The trial record suggested that a jury trial was waived as evidenced by 1) trial notices indicating "trial without jury;" 2) a writ of habeas corpus indicating a "jury-waived" trial date; 3) defense counsel stating that the defendant was "prepared to be tried jury waived;" and 4) the trial commencing without objection by the defendant. Under the circumstances, no more is required. However, the court noted that:

" The minimal burden upon the Commonwealth in ensuring a
colloquy and written waiver is outweighed by the interests
of the defendant, whose liberty is at risk. The better
practice in commitment proceedings under c. 123A, thus,
is to require, as in criminal cases, a colloquy and written waiver."