Rules of Criminal Procedure  Criminal Procedure Rule 19: Trial by jury or by the court

Where the defendant has the right to be tried by a jury, the defendant may waive the right to be tried by a jury, provided that the judge determines after a colloquy that such waiver is knowing and voluntary, and the defendant signs a written waiver, which shall be filed with the court. If there is more than one defendant, each must waive the right to trial by jury, unless the judge exercises discretion to sever the cases. The judge may refuse to approve such a waiver for any good and sufficient reason provided that such refusal is given in open court and on the record.

If after jeopardy attaches there is at any time during the progress of a trial less than a full jury remaining, a defendant may waive the right to be tried by a full jury, provided that the judge determines after a colloquy that such waiver is knowing and voluntary. The defendant shall sign a written waiver, which shall be filed with the court. If there is more than one defendant, each must waive the right to be tried by a full jury unless the judge exercises discretion to sever the cases.

(2020)

Subdivision (a)

This amendment to Mass. R. Crim. P. 19(a) makes minor stylistic edits to provide consistency with amendments to Mass. R. Crim. P. 19(b) that were made to implement Commonwealth v. Bennefield, 482 Mass. 250 (2019).

When a defendant pleads not guilty and seeks trial by the judge instead of by a jury, there are two requirements for the valid waiver of the right to a jury trial. First, the judge must conduct an oral colloquy with the defendant to ensure that the waiver is entered knowingly and voluntarily. Ciummei v. Commonwealth, 378 Mass. 504, 509-10 (1979) (recommending colloquy address features of the jury’s role, such as that the jury consists of community members, that defendant may participate in jurors’ selection, that the jury’s verdict must be unanimous, and that the jury decides guilt or innocence but that the judge alone will do this if the jury is waived). Second, a written waiver must be signed by the defendant and filed with the court. See G.L. c. 263, § 6, G.L. c. 218, § 26A, G.L. c. 119, § 55A. While the requirement for a colloquy was imposed by the Supreme Judicial Court under its superintendence function, and the requirement for a written waiver is statutory, “[a] waiver obtained without observing both requirements is ineffective.” Commonwealth v. Osborne, 445 Mass. 776, 781 (2006).

In addition to these requirements, the judge must approve the waiver, and may refuse to do so for any good and sufficient reason. See Commonwealth v. Collins, 11 Mass. App. Ct. 126, 141 (1981) (“judge’s conclusion that certain pretrial matters which came to his attention, including statements of defense counsel, would unfairly prejudice, at least in appearance, the rights of the defendant is a ‘good and sufficient reason’”). A judge who has decided pretrial matters that involved passing on the defendant’s credibility, for example, might conclude that the court’s impartiality as a factfinder could reasonably be questioned. Commonwealth v. Adkinson, 442 Mass. 410, 412-416 (2004) (trial judge properly reminded defendant during colloquy waiving jury that he had denied codefendant’s motion to suppress her confession implicating defendant, and that he would use his best efforts to disregard this preliminary ruling and consider anew voluntariness of the confession at a jury-waived trial).

When a defendant pleads guilty and waives a trial by jury, by contrast, there is no requirement for a written waiver of the right to a jury trial. Commonwealth v. Hubbard, 457 Mass. 24, 26 (2010) (“There is no requirement that, when accepting a defendant’s tender of a guilty plea, a defendant’s waiver of the right to a trial with or without a jury be in writing.”). There remains, however, a requirement for a colloquy on the record in connection with the defendant’s tender of a guilty plea as an element of due process. Commonwealth v. Evelyn, 470 Mass. 765, 769 (2015) (“[T]he judge must engage the defendant in a colloquy before accepting the plea because due process requires that a guilty plea should not be accepted, and if accepted must be later set aside, unless the contemporaneous record contains an affirmative showing that the defendant’s plea was intelligently and voluntarily made.”) (Internal quotations omitted). See also, Boykin v. Alabama, 395 U.S. 238, 243 (1969); Mass. R. Crim. P. 12(c)(3) and 12(d)(3).

Subdivision (b)

This amendment to Mass. R. Crim. P. 19(b) implements Commonwealth v. Bennefield, 482 Mass. 250 (2019), by specifying the procedure through which a defendant may waive the right to a full jury after jeopardy has attached. The Court held in Bennefield that a colloquy on the record is essential to establish a valid waiver. Id. at 257. It referenced with approval the principles applicable to the colloquy required for a valid waiver of the right to a jury trial. See Ciummei v. Commonwealth, 378 Mass. 504, 509-510 (1979). As in the earlier rule, the defendant must also file with the court a signed, written waiver of the right to a full jury. This waiver will be valid, however, only with the accompanying colloquy. Bennefield, id. Furthermore, the absence of a written waiver would not, by itself, be a ground for vacating a conviction. Id.

(1979)

The right to trial by jury, which is guaranteed by art. 3, § 2, cl. 3 of the United States Constitution and the sixth amendment, is applicable to the states through the fourteenth amendment. Duncan v. Louisiana , 391 U.S. 145 (1968). The Massachusetts Constitution, part 1, art. 12, also guarantees defendants the right to trial by jury. Further, G.L. c. 278, § 2 , applicable to the Superior Court, provides that “[i]ssues of fact ... shall ... be tried by a jury ... unless the person indicted or complained against elects to be tried by the court....” General Laws c. 218, § 26A , inserted by St.1978, c. 478, § 188, provides that trials in the District Court and the Boston Municipal Court “shall be by a jury of six, unless the defendant files a written waiver and consents to be tried by the court....” Under prior law a juvenile defendant had no right to a trial by jury during the adjudicative phase of a delinquency proceeding. McKeiver v. Pennsylvania , 403 U.S. 528 (1971); Commonwealth v. Page , 339 Mass. 313, 316 (1959). However, by G.L. c. 119, § 55A , inserted by St.1978, c. 478, § 56, delinquency proceedings shall be by jury unless waived. If a juvenile appeals from an adjudication of delinquency in a jury waived session, his appeal to the jury session will be tried and determined in like manner as an appeal by an adult criminal defendant. G.L. c. 119, § 56 (as amended, St.1978, c. 478, § 57). See Sylvester v. Commonwealth , 253 Mass. 244 (1925). 

Subdivision (a)

This subdivision is drawn from Fed.R.Crim.P. 23(a) and G.L. c. 119, § 55A ; c. 218, § 26A ; c. 263, § 6. The requirement that the waiver be in writing is not universal. See ABA Standards Relating to Trial by Jury, § 1.2(b) (Approved Draft, 1968); Rules of Criminal Procedure (U.L.A.) rule 511 (1974). In Boykin v. Alabama , 395 U.S. 238 (1969), the Court held that a waiver of a jury trial cannot be presumed from a silent record. While Boykin would be satisfied by an oral waiver when the proceedings are recorded, the requirement in Massachusetts is that the waiver be written and filed with the clerk. Commonwealth v. Hesser , 1 Mass.App.Ct. 850 (1973) (Rescript); Gallo v. Commonwealth , 343 Mass. 397, 402 (1961); G.L. c. 263, § 6 . The federal rule imposes this stricter requirement “to ensure a greater probability of a defendant understanding what he is doing....” Pool v. United States , 344 F.2d 943, 945 (9th Cir.1966). Likewise, the Massachusetts rule seeks to “avoid unnecessary controversy and to provide a procedural safeguard....” Gallo v. Commonwealth, supra. 

“A waiver is ... an intentional relinquishment or abandonment of a known right....” Johnson v. Zerbst , 304 U.S. 458, 464 (1938). Waiver of a constitutional right must be “intelligent and competent.” Id. at 465. The waiver of the right to a jury trial must be “express and intelligent.” Patton v. United States , 281 U.S. 276, 312 (1930). Subdivision (a) incorporates that portion of the federal rule which provides that a waiver of trial by jury must be approved by the court. Although a defendant is free to waive his jury trial, Patton, supra, there is no constitutional impediment to conditioning that waiver upon the consent of the trial judge. Singer v. United States , 380 U.S. 24, 36 (1965) (construing Fed.R.Crim.P. 23[a] ). See ABA Standards Relating to Trial by Jury § 1.2(a), comment at 32-34 (Approved Draft, 1968). The defendant in a capital case may not waive a jury trial in any event. G.L. c. 263, § 6 (as amended); Commonwealth v. O'Brien , 371 Mass. 605 (1976). Accord Commonwealth v. Marshall , 373 Mass. 65 (1977) . 

The decision whether to waive trial by jury is properly that of the defendant after full consultation with counsel. ABA Standards Relating to the Defense Function § 5.2 (Approved Draft, 1971). 

If there are multiple defendants and one desires to waive the right to trial by jury, then all must waive. United States v. Farries , 459 F.2d 1057, 1061 (3d Cir.), cert. denied, 409 U.S. 888 (1972), 410 U.S. 912 (1973). In a rare case, severance may be the best course if not all defendants choose waiver. In Farries, however, the enormous expense and serious security problems involved in a trial where the defendants and many witnesses were inmates of various federal penitentiaries was held to outweigh the interests of a defendant in severance. 

Subdivision (b)

This subdivision is in accord with current Massachusetts practice as stated in G.L. c. 234, § 26A. The provision authorizing the court to disallow a waiver of the right to be tried by a full jury is not inconsistent with prior law even though a similar provision does not appear in G.L. c. 234, § 26A. See Commonwealth v. Roby , 29 Mass. 496, 502 (1832). Compare United States v. Jorn ,  400 U.S. 470 (1971).