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(Applicable to Superior Court and jury sessions in District Court)
Exceptions to rulings or orders of the court are unnecessary and for all purposes for which an exception has heretofore been necessary, it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court, but if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him.
If a party objects to a ruling or order of the court, he may state the precise legal grounds of his objection, but he shall not argue or further discuss such grounds unless the court calls upon him for such argument or discussion.
Rule 22 restates Rule 51 of the Federal Rules of Criminal Procedure and is substantially similar to Rule 46 of both the Massachusetts and Federal Rules of Civil Procedure. See Superior Court Rule 8 (1974).
For generations of Massachusetts practitioners the relationship between the saving of an exception and the right of review was so firmly established in the appellate procedure of the Commonwealth and so universally understood and applied that discussion of the validity of the requirement was foreclosed. See e.g., Commonwealth v. Underwood , 358 Mass. 506, 509 (1970); SUPERIOR COURT RULES, 1974, ANNOTATED, 281-82 (Mass.Bar ed. 1975). The proper saving of an exception was the first and fundamental step to secure a review by bill of exceptions or by appeal, Commonwealth v. Underwood, supra; Commonwealth v. Dinnall , 366 Mass. 165 (1974), and the failure to seasonably except vitiated the right to review of the issue to which exception was not taken, Commonwealth v. Boudreau , 362 Mass. 378 (1972), save for the rare instance when an appellate court would review such questions because of a “substantial risk of a miscarriage of justice.” Commonwealth v. Freeman , 352 Mass. 556, 564 (1967); Commonwealth v. Williams , 7 Mass. App. Ct. 866 (1979) (Rescript); Commonwealth v. Harris , 371 Mass. 462, 471 (1976); Commonwealth v. Fields , 371 Mass. 274, 277 (1976).
It is felt that the requirement of exceptions exalts form over substance in an unnecessarily ritualistic and time-consuming procedure. The draftsmen of Mass.R.Civ.P. 46 followed the lead of both the federal civil and criminal rules in abolishing the exception. This rule eliminates the requirement from criminal trials. That decision is premised upon the practical observation that an objection by counsel or counsel's request for specific action is sufficient to indicate to the court counsel's position on any issue and that to additionally require an exception is superfluous. See Rules of Criminal Procedure (U.L.A.) rule 755 (1974). It has been argued that the requirement of an exception should be retained to provide the trial judge with an opportunity to reconsider his ruling on an objection and to eliminate specious arguments by counsel, Commonwealth v. Foley , 358 Mass. 233 (1970).
Realistically, however, the taking of an exception apprises the judge of nothing which is apt to affect his initial ruling, nor does the requirement of an exception in any way compel counsel to take exception only to rulings on substantial matters.
The practice of requiring exceptions had led appellate courts to scrutinize records so as to determine whether holding that a defendant had waived objections by his failure to save exceptions could result in a miscarriage of justice. The scope of such review equates with that if no exceptions were required. See e.g., Commonwealth v. Williams , 7 Mass. App. Ct. 866 (1979) (Rescript). Further, rigidly requiring that exceptions be saved led to “anomalous” results. In Commonwealth v. Nelson , 3 Mass.App. Ct. 90, 101 (1975), the court reviewed the denial of a motion for a new trial to which denial no exception was taken because the appellant's co-defendant had properly saved an exception to a similarly-grounded motion.
Superior Court Rule 8 (1974) provides that in criminal cases, objections to evidence shall be decided without argument unless the presiding justice calls upon the parties to state the grounds on which the evidence is offered or objected to. Having once stated the grounds, if so requested, counsel is not to further comment thereon unless the court requires elucidation. See Fed.R.Evid. 103(a). It is the intent of this rule that if a statement of grounds is requested, the court may allow such statement to be made in open court or at the bench and out of hearing of the jury. See Fed.R.Evid. 103(c).