Rules of Criminal Procedure  Criminal Procedure Rule 34: Report

If, prior to trial, or, with the consent of the defendant, after conviction of the defendant, a question of law arises which the trial judge determines is so important or doubtful as to require the decision of the Appeals Court, the judge may report the case so far as necessary to present the question of law arising therein. If the case is reported prior to trial, the case shall be continued for trial to await the decision of the Appeals Court.

(2004) Under prior practice, the authority of a judge to report a question of law for the decision of the full court was wholly a creature of statute, Commonwealth v. Cronin , 245 Mass. 163 (1923), and the procedure was expressly confined to instances where a person had been convicted, G.L. c. 278, § 30 (St. 1830, c. 113, § 4), or before trial had commenced. G.L. c. 278, § 30A (St.1954, c. 528). The language of this rule is comprised of the statutory provisions of those two sections. 

Prior to 1954, a trial judge was authorized to report a question of law only after the conviction of a defendant; no provision granted the court the authority to report an interlocutory question before trial. Commonwealth v. Baldi , 250 Mass. 528 (1925). The addition of § 30A by chapter 528 of the Statutes of 1954 gave the court the power to report and have decided a question arising prior to trial, and this procedure has been used increasingly in recent years with the expanded application of fourth, fifth and sixth amendment rights. See, e.g., Commonwealth v. Baker , 343 Mass. 162 (1961) (admission to bail); Commonwealth v. Mekalian , 346 Mass. 496 (1963) (motion to suppress evidence); Commonwealth v. O’Leary , 347 Mass. 387 (1964) (assignment of counsel).

Once trial has commenced, the court may not report a question until after a conviction of the defendant. The definition of “conviction” for purposes of this rule is that provided by the Supreme Judicial Court in Commonwealth v. Baldi , 250 Mass. 528 (1925), which may include the judgment of the court following a verdict of guilty or confession of guilt, or may mean a verdict of guilty against the defendant or his confession in open court, without judgment or sentence. Id. at 536-37. 

Although a report may be made after trial if the defendant consents, it does not preclude the defendant from taking an appeal. See Commonwealth v. Giles , 350 Mass. 102 (1966), in which the judge found the defendant guilty and suspended the execution of sentence pending answer to his report from the Supreme Judicial Court. The defendant later appealed the entire case. Conversely, the procedure has also been used to afford a defendant as full a review as he could have obtained had his counsel properly filed an assignment of errors after notice of the completion of the summary of the record. In Commonwealth v. Pratt , 360 Mass. 708 (1972), the Supreme Judicial Court treated such a case as if it had been properly brought on appeal. See Commonwealth v. Dorius , 346 Mass. 323, 324 (1963). 

The decision to report rests within the discretion of the trial judge. Commonwealth v. Eagleton , 402 Mass. 199, 208 (1988). This discretion is to be guided in part by the standard set out by the Supreme Judicial Court in Commonwealth v. Cavanaugh , 366 Mass. 277 (1974). This standard, though stated in connection with interlocutory appeals, is, as the court clearly states, applicable to decisions to report: 

An interlocutory appeal, like a report, may be appropriate when the alternatives are a prolonged, expensive, involved or unduly burdensome trial or a dismissal of the indictment. 

Id. at 279. (Emphasis added). Accord Commonwealth v. Vaden , 373 Mass. 397 (1977). 

A case may be reported if in the judge’s opinion a question of law is so important or doubtful as to require a determination by a higher court, Commonwealth v. A Juvenile , 381 Mass. 727, 728 n.2 (1980). The judge must then refer facts sufficient to make intelligible the question of law reported. Commonwealth v. Yacobian , 393 Mass. 1005, 1005-06 (1984); Commonwealth v. O’Neil , 233 Mass. 535 (1919). In Commonwealth v. Ficksman , 340 Mass. 744 (1960), the Supreme Judicial Court decided that the record before it was insufficient to determine properly the question reported. The court therefore discharged the report and remanded the case to the lower court. The judge should refuse to report a case upon the defendant’s motion if he finds there is no question of law so important as to require higher court resolution, Commonwealth v. McKnight , 289 Mass. 530 (1935), or because there is no issue of law. Commonwealth v. Chase , 348 Mass. 100 (1964). 

The Supreme Judicial Court held in Commonwealth v. Henry’s Drywall Co., Inc. , 362 Mass. 552 (1972), that an interlocutory report was not appropriate under the circumstances of the case. Quoting John Gilbert, Jr. Co. v. C.M. Fauci Co. , 309 Mass. 271, 273 (1941), Justice Quirico stated that: 

Interlocutory matters should be reported only where it appears that they present serious questions likely to be material in the ultimate decision, and that subsequent proceedings in the trial court will be substantially facilitated by so doing. 

362 Mass. at 557. The report was discharged since a decision would have avoided what appeared to the court to be only a short trial which might effectively resolve the issues reported. See Commonwealth v. Henry’s Drywall Co., Inc. , 366 Mass. 539 (1974). Interlocutory reports are not to “be permitted to become additional causes of the delays ... which are already too prevalent.” Commonwealth v. Vaden , 373 Mass. 397 (1977). However, in Commonwealth v. Shields , 402 Mass. 162, 163 (1988), the S.J.C. found questions concerning the constitutionality of sobriety roadblocks were appropriately reported because the answers were likely to be dispositive, the questions were likely to recur, and an improper ruling by the trial court would have resulted in an unnecessary waste of judicial resources at trial. 

To help the appellate court decide whether an interlocutory report is appropriate, the reporting court should explain its reasons for declining to wait until after the trial is completed. Commonwealth v. Wallace , 431 Mass. 705, 705 n.1 (2000). See also Commonwealth v. Vaden , 373 Mass. 397 (1977) (“the report itself, or ... [an] accompanying stipulation or [the] record” should indicate why the issue is appropriate for interlocutory review). 

After conviction of the defendant, the trial judge has the authority to make a report whether or not the trial was heard by a jury, so long as it is determined that the defendant is guilty. See Commonwealth v. Kemp , 254 Mass. 190 (1926), as to authority to report in a jury-waived trial. 

The granting of jurisdiction to the Appeals Court concurrent with the Supreme Judicial Court conforms to existing statutory law. G. L. c. 211A, § 10 established the concurrent jurisdiction: 

Subject to such further appellate review by the supreme judicial court as may be permitted pursuant to section eleven or otherwise, the appeals court shall have concurrent appellate jurisdiction with the supreme judicial court, to the extent review is otherwise allowable, with respect to a determination made in the appellate tax board and in the superior court department, the housing court department, the land court department, the probate and family court department, the Boston municipal court department in criminal session, the Boston municipal court department appellate division, the juvenile court department, the district court department in criminal session, and the district court department appellate divisions, except in review of convictions for first degree murder. A report from any such department of the trial court of any case, in whole or in part, or any question of law arising therein shall be deemed to be within the concurrent appellate jurisdiction of the supreme judicial court and the appeals court. 

A trial judge is to report a case to the Appeals Court. Section 10 states further that appellate review, “if within the jurisdiction of the appeals court, shall be in the first instance by the appeals court ...” 

Previously a defendant in District Court, except in a jury session trial, was precluded from requesting the judge to report a question. By a 2004 amendment, however, the caption limiting application of this rule was removed. That amendment brings Rule 34 into conformity with legislation that abolished the de novo district court system and established that “review may be had directly by the appeals court, by appeal, report or otherwise in the same manner provided for trials of criminal cases in the superior court.” G.L. c. 218, secs. 26A and 27A(g) , applicable to judge and jury sessions respectively. Rule 34 now applies to all superior, juvenile, district and municipal courts. 

The Supreme Judicial Court is also given general discretionary powers of superintendence under c. 211, §§ 3 and 4A , with which it can review significant interlocutory matters. 

The supreme judicial court may ... direct any cause or matter to be transferred from a lower court to it in whole or in part for further action or directions, and in case of partial transfer may issue such orders or direction in regard to the part of such cause or matter not so transferred as justice may require.

G.L. c. 211, § 4A . Under § 3, it may do so “to correct and prevent errors and abuses ... if no other remedy is expressly provided,” and in the interests of “the furtherance of justice and ... the regular execution of the laws.” 

The broad statutory standard governing matters acceptable for review under §§ 3 and 4A has been narrowly interpreted by the Supreme Judicial Court. The Court has stated that “[o]nly in the most exceptional circumstances will we review interlocutory rulings in criminal cases under our general superintendence powers.” Gilday v. Commonwealth , 360 Mass. 170, 171 (1971). To fulfill this requirement there must be a substantial claim of violation of a substantive right and irremediable error, such that the defendant cannot be placed in status quo in the regular course of appeal. Morrissette v. Commonwealth , 380 Mass. 197, 198 (1980). See also Gilday, supra, at 171; Mass. R. Crim. P. 30, Reporter’s Notes, supra (collecting cases). Moreover, as in the case of a report, the fact that an appeal may be taken from a final judgment after the case has been tried does not prevent the court from acting within its powers of superintendence. Barber v. Commonwealth , 353 Mass. 236, 239 (1967). 

In A Juvenile v. Commonwealth , 370 Mass. 272 (1976), the plaintiff filed a petition for relief in the nature of certiorari with the Supreme Judicial Court under c. 211, § 3 . This procedure was sufficient to bring the matter to the court for review.