Rules of Criminal Procedure

Rules of Criminal Procedure  Criminal Procedure Rule 11: Pretrial conference and pretrial hearing

Effective Date: 09/07/2004
Updates: Amended March 8, 2004, effective September 7, 2004.

(Applicable to cases initiated on or after September 7, 2004)

Table of Contents

(a) The pretrial conference

At arraignment, except on a complaint regarding which the court will not exercise final jurisdiction, the court shall order the prosecuting attorney and defense counsel to attend a pretrial conference on a date certain to consider such matters as will promote a fair and expeditious disposition of the case. The defendant shall be available for attendance at the pretrial conference. The court may require the conference to be held at court under the supervision of a judge or clerk-magistrate.

(1) Conference agenda

Among those issues to be discussed at the pretrial conference are:

(A) Discovery and all other matters which, absent agreement of the parties, must be raised by pretrial motion. All motions which cannot be agreed upon shall be filed pursuant to Rule 13(d).

(B) Whether the case can be disposed of without a trial.

(C) If the case is to be tried, (i) the setting of a proposed trial date which shall be subject to the approval of the court and which when fixed by the court shall not be changed without express permission of the court; (ii) the probable length of trial; (iii) the availability of necessary witnesses; and (iv) whether issues of fact can be resolved by stipulation.

(2) Conference report

(A) Filing. A conference report, subscribed by the prosecuting attorney and counsel for the defendant, and when necessary to waive constitutional rights or when the report contains stipulations as to material facts, by the defendant, shall be filed with the clerk of the court pursuant to subdivision (b)(2)(i). The conference report shall contain a statement of those matters upon which the parties have reached agreement, including any stipulations of fact, and a statement of those matters upon which the parties could not agree which are to be the subject of pretrial motions. Agreements reduced to writing in the conference report shall be binding on the parties and shall control the subsequent course of the proceeding.

(B) Failure to file. If a party fails to participate in a pretrial conference or to cooperate in the filing of a conference report, the adverse party shall notify the clerk of such failure. If a conference report is not filed and a party does not appear at the pretrial hearing, no request of that party for a continuance of the trial date as scheduled shall be granted and no pretrial motion of that party shall be permitted to be filed, except by leave of court for cause shown. If the parties fail to file a conference report or do not appear at the pretrial hearing, the case shall be presumed to be ready for trial and shall be scheduled for trial at the earliest possible time. The parties shall be subject to such other sanctions as the judge may impose.

(b) The pretrial hearing

At arraignment, except on a complaint regarding which the court will not exercise final jurisdiction, the court shall order the prosecuting attorney and defense counsel to appear before the court on a date certain for a pretrial hearing. The defendant shall be available for attendance at the hearing. The pretrial hearing may include the following events:

(1) Tender of plea

The defendant may tender a plea, admission or other requested disposition, with or without the agreement of the prosecutor.

(2) Pretrial matters 

Unless the Court declines jurisdiction over the case or disposes of the case at the pretrial hearing, the pretrial hearing shall include the following events:

(i) Filing of pretrial conference report. The prosecuting attorney and defense counsel shall file the pretrial conference report with the clerk of court.

(ii) Discovery and pretrial motions. The court shall hear all discovery motions pending at the time of the pretrial hearing. Other pending pretrial motions may be heard at the pretrial hearing, continued to a specified date for a hearing, or transmitted for hearing and resolution by the trial session.

(iii) Compliance and trial assignment. The court shall determine whether the pretrial conference report is complete, all discovery matters have been resolved, and compliance with all discovery orders has been accomplished. If so, the court shall obtain the defendant's decision on waiver of the right to a jury trial, and assign a trial date or trial assignment date. If completion of either the pretrial conference report or discovery is still pending, the court shall schedule and order the parties to appear for a compliance hearing pursuant to Rule 11(c) unless the aggrieved party waives the right to a compliance hearing.

(iv) The court may issue such additional orders as will promote the fair, speedy and orderly disposition of the case.

(c) Compliance hearing

A compliance hearing ordered pursuant to Rule 11(b)(2)(iii) shall be limited to the following court actions:

(1) determining whether the pretrial conference report and discovery are complete and, if necessary, hearing and deciding discovery motions and ordering appropriate sanctions for non-compliance;

(2) receiving and acting on a tender of plea or admission; and

(3) if the pretrial conference report and discovery are complete, obtaining the defendant's decision on waiver of the right to a jury trial, and scheduling the trial date or trial assignment date.

Reporter's notes

(Revised, 2004). Rule 11 is designed to promote the speedy and orderly disposition of cases at a time certain which is most convenient to all parties, and to that end it calls upon defendants' counsel to aid the court in the disposition of all preliminary motions and other matters relative to pending cases. See Commonwealth v. Durning, 406 Mass. 485, 495 (1990). Although the title of the rule would appear to limit its application to those cases which are destined to be tried, it is intended that in some cases the conference will result in the resolution of issues so as to make trial unnecessary. At the least the pretrial conference should assist the parties in channeling their attention and resources to matters genuinely in issue and aid the court in focusing the elaborate mechanism of a full trial upon the material issues in dispute.

The 2004 Amendments. In 2004, the Rule was substantially rewritten to mandate a uniform pretrial process in all criminal courts. Under the rule, at arraignment (except on a complaint regarding which the court will not exercise final jurisdiction, in which case a probable cause hearing will be scheduled as required by Rule 7), the court will schedule the case for both a pretrial conference and a pretrial hearing, to be held on separate dates. Following the pretrial conference, the parties will prepare a pretrial conference report, memorializing their agreements and disagreements. This report controls the scope of subsequent motions practice. Rule 11 also mandates a pretrial hearing on a subsequent date, at which a plea may be taken or pretrial matters may be raised and/or resolved. Rule 11 as revised reflects this three step process, setting out the functions of the pretrial conference, the report, and the pretrial hearing. Additionally, if discovery remains incomplete at the time of the pretrial hearing, a compliance hearing will be scheduled to insure that discovery is complete before the case proceeds.

Subdivision (a)

The Pretrial Conference and Conference Report

Rule 11 originally required pretrial conferences in both Superior and District Court jury sessions, leaving the District Court primary session with the option of scheduling a conference or not. By a 2004 amendment, pretrial conferences are now mandatory in all cases, regardless of whether the case is docketed in a superior, juvenile, district, or municipal court. Under Rules 7 and 11, at arraignment the court will schedule the case for both a pretrial conference and a pretrial hearing. Regarding the pretrial conference, the rule allows but does not require the court to order that this conference take place before a judge or magistrate. The Boston Municipal Court practice of holding a conference before a magistrate has proven quite efficient, but because some district courts may not have adequate personnel and courtrooms for this purpose the subdivision leaves this issue to be determined by each court.

Subdivisions (a)(1)(A)-(C) outline suggested issues which may be discussed and resolved prior to the trial. The catalog is not to be considered exhaustive.

Subdivision (a)(1)(A), in conjunction with Mass. R. Crim. P. 13, seeks to reduce the number of "boiler plate" pretrial motions which are routinely filed. See Commonwealth v. Hall, 369 Mass. 715 , 723 (1976). If the substance of a motion is agreed upon, that fact and the agreement are set out in the conference report [(a)( 2)(A)], infra; only pretrial motions which are not agreed upon are permitted to be filed. Mass. R. Crim P. 13(d) .

While it is unlikely that a plea arrangement will immediately result from the conference, the defendant, following disclosure of the Commonwealth's case, may decide that a plea is the best alternative. Therefore, the subject is properly discussed at that time [(a)(1)(B)]. If an arrangement is in fact concluded, it should be stated in the conference report. See Mass. R. Crim. P. 12(b)(2) , which requires counsel to notify the court of the existence of any agreement contingent upon the defendant's plea.

Among the matters to be discussed under subdivision (a)(1)(C)(i) is the setting of the trial date. It must be emphasized that one consequence of a failure to comply with this rule is that the case will be presumed to be ready for trial and a trial date will be set for the earliest available time, [a] [2] [B], infra. Agreements as to subdivision (C)(ii) will assist the court in the management of its docket, see  Mass. R. Crim. P. 36(a)(2) , and understandings as to the availability of necessary witnesses will reduce the need for continuances to secure their attendance, Mass. R. Crim. P. 10. If stipulations of fact are agreed upon after discussion under (C)(iv) they are to be recorded in the conference report, [a] [2] [A], infra.

The defendant may also request information concerning the Commonwealth's intended use of prior acts or convictions for proof of knowledge, intent, or modus operandi, and use of prior convictions to impeach the testimony of the defendant. This information, while not specifically mentioned in Rule 11, is a proper subject of discussion at the pretrial conference. It is contemplated that compliance with this subdivision will obviate the necessity for resorting to the more time-consuming procedures of Mass. R. Crim. P. 14 and 23, expedite the taking of testimony at the trial, and allow counsel to better prepare for trial.

Pursuant to Mass. R. Crim. P. 9(a)(3), either party may move for consolidation of pending charges. This matter, if resolved at conference, will avoid the time delay required for the court to conduct a hearing and act upon a motion for joinder. This is true also as to motions to transfer other pending charges for plea, sentence or trial. Mass. R. Crim. P. 37(b)(1)-(2) .

It should be noted that a motion to take a deposition, not contemplated within subdivision (a)(1) of this rule, if considered at conference and agreed upon, need not be filed with the court, since the parties are permitted to depose witnesses by agreement pursuant to Mass. R. Crim. P. 35(i) .

The parties may also wish to stipulate as to the application and effect of the excludable time provisions of  Mass. R. Crim. P. 36(b) , e.g., whether time should be excluded from the speedy trial limits due to the absence of an essential witness and, if so, how much. Mass. R. Crim. P. 36(b)(2)(B) .

The 2004 revision eliminated a provision then numbered (a)(1)(C), which required the defendant to reveal "the nature of the defense" at the pretrial conference, and whether he or she intends to defend by alibi, insanity or privilege. Such discovery to the prosecution is now mandatory discovery under Rule 14, at a more realistic and constitutionally appropriate phase of the pretrial proceedings. The pretrial conference is generally held too early to expect the defendant to know and convey the defense, especially since full discovery may not yet have been provided by the prosecution. Indeed, because under the Fifth and Fourteenth Amendments to the United States Constitution the defense can only be compelled to disclose information it has decided to use at trial, Williams v. Florida, 399 U.S. 78(1970), prosecutorial discovery should not be required before the defendant is in a position to make an informed decision.

Subdivision (a)(2)(A) outlines the contents of the pretrial conference report and establishes the requirement that it be signed by the defendant when it contains agreements which amount to waivers of constitutional right or stipulations to material facts. The defendant's signature should not be pro forma, but should be subscribed only after his counsel has explained the consequences of this act to him. To expedite this procedure, subdivisions (a) and (b) mandate that the defendant "shall be available for attendance" at both the pretrial conference and the pretrial hearing. This requirement assures also that the defendant's assent to other agreements may readily be obtained.

The pretrial conference report must set out all agreements of the parties. Such agreements have the force of a court order, and are enforceable by the same sanctions. Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224 , 228 (1992); Commonwealth v. Durning, supra at 495; Commonwealth v. Gallarelli, 399 Mass. 17 , 20 (1987); Commonwealth v. Chapee, 397 Mass. 508 , 517 (1986), habeas denied sub nom. Chappee v. Vose, 843 F.2d 25 (1st Cir. 1988); Commonwealth v. Delaney, 11 Mass. App. Ct. 398 (1981). Only pretrial motions whose subject matter could not be agreed on at the conference may be filed. The conference report is filed with the clerk, whose responsibility it is to monitor filing and advancement of cases for trial.

Subdivision (a)(2)(B) sets out the sanctions to be imposed upon a failure to file a report and to appear to explain that failure. If counsel refuse to cooperate in the conference procedure, the court may also invoke its authority under subdivision (a)(1) to require a conference be held at court under the supervision of a judge or clerk-magistrate.

Subdivision (b)

The pretrial hearing

This subdivision originally concerned conference procedures in the District Court jury-waived sessions. By a 2004 amendment, Rule 11(a)'s pretrial conference requirements were made uniform for all sessions, and subdivision (b) is instead devoted to the pretrial hearing. New subdivision 11(b) allows a District Court judge to decline jurisdiction and schedule a probable cause hearing expeditiously (and in such case the judge may entertain discovery motions prior to the probable cause hearing, Commonwealth v. Silva, 10 Mass. App. Ct. 784 , 791 (1980)). Otherwise a pretrial hearing is to be held in order to accomplish the pretrial matters enumerated in the subdivision. Subparagraph (b)(1) authorizes the court to receive a plea, admission, or other requested disposition. If there is no plea or disposition, subparagraph (b)(2)(i) requires the parties to file the pretrial conference report; (b)(2)(ii) requires the pretrial hearing judge to hear all pending discovery motions, and permits him or her to hear other pretrial motions as well; and (b)(2)(iii) requires the court to schedule the next court date. If the pretrial report or discovery is not complete, the court will schedule a compliance hearing unless waived by the aggrieved party (see subdivision (c)). If they are complete, the court will ask the defendant to elect or waive a jury trial, and then assign "the trial date or trial assignment date." Ideally, the rule would have simply required the assignment of a trial date, rather than offering the option of scheduling a "trial assignment date," which allows for yet another intermediate hearing date; but practical constraints require this option, as many courts are presently unable to guarantee a particular trial date as early as the pretrial hearing. Although the jury decision should be fully considered and resolved at this time, nothing in the rule prevents a defendant who elects a jury trial from waiving the right at a later date.

Subdivision (c)

Compliance Hearing

This subdivision makes a compliance hearing mandatory if a party failed to complete a pretrial conference report or provide discovery, unless the aggrieved party waives such a hearing. Such a hearing was optional before this subdivision was promulgated in 2004, leading to routine inefficiencies this subdivision is designed to eliminate. In courts that did not have compliance hearings, the aggrieved party had confronted an unfair choice between the sometimes burdensome task of obtaining an expedited hearing simply to obtain overdue discovery, or waiting until the trial date to receive discovery (which itself presented the prospect of either a continuance or an immediate trial with unprepared counsel). Moreover, municipal and district courts without compliance hearings had to defer jury waivers until the trial date pursuant to G.L. c. 218 § 28 , which prohibits a waiver decision until discovery has been delivered. It promoted delays and inconvenience to witnesses for the court to remain ignorant up to the trial date as to whether a jury session would be required.

Therefore, this subdivision requires a compliance hearing when required discovery has not been forthcoming, and limits the hearing to certain enumerated matters mostly derived from Dist./Mun. Cts. R. Crim. P. 5. The court must determine whether the pretrial report and discovery are complete; must hear and decide pending discovery motions; and may order sanctions for non-compliance. If discovery is completed, it may receive a plea or admission; obtain the defendant's decision on whether to elect or waive a jury trial; and schedule the trial date or trial assignment date.

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Updates: Amended March 8, 2004, effective September 7, 2004.

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