Rules of Criminal Procedure  Criminal Procedure Rule 37: Transfer of cases

(1) District Court

A defendant against whom a complaint is pending and who appears in District Court, whether under arrest or pursuant to a summons, and against whom a complaint is pending in a division other than that in which he appears, may state in writing that he wishes to plead guilty or nolo contendere, to waive trial in the division in which the other complaint is pending, and to consent to disposition of the case in the division in which he appears. The District Court in which the defendant appears may order that the other complaint be transferred for disposition, subject to the written approval of the prosecutor in each division.

(2) Superior Court

A defendant against whom a complaint or indictment is pending and who appears in Superior Court, whether under arrest or pursuant to a summons, and against whom a complaint or indictment is pending in a county other than that in which he appears, may state in writing that he wishes to plead guilty or nolo contendere, to waive trial in the county in which the other complaint or indictment is pending, and to consent to disposition of the case in the county in which he appears. The Superior Court in which the defendant appears may order that the other complaint or indictment be transferred for disposition, subject to the written approval of the prosecuting attorney in each county.

(3) Effect of not guilty plea

If after a proceeding has been transferred pursuant to subdivision (a) of this rule the defendant pleads not guilty, the clerk shall return the papers transmitted pursuant to subdivision (c) of this rule to the court in which the prosecution was commenced, and the proceeding shall be restored to the docket of that court.

(1) Transfer for prejudice

A judge upon his own motion or the motion of a defendant or the Commonwealth made prior to trial may order the transfer of a case to another division or county for trial if the court is satisfied that there exists in the community where the prosecution is pending so great a prejudice against the defendant that he may not there obtain a fair and impartial trial.

(2) Transfer of other cases

A judge, upon motion of a defendant made pursuant to subdivision (3) or (4) of rule 9(a), and after taking into account the convenience of the court, the parties, and their witnesses, may with the written approval of the prosecuting attorney in each division or county order the transfer and consolidation for trial of any or all charges pending against the defendant in the several divisions or counties of the Commonwealth.

Upon receipt of the defendant's statement and the written approval of the prosecutor required by this rule, the clerk of the court in which a complaint or indictment is pending shall transfer the papers in the case and any bail taken to the clerk of the court to which the case is transferred. The clerk of the transferee court shall make immediate entry of the case upon the docket of that court and shall so notify the clerk of the transferor court so that the case may be closed on the docket of that court. The prosecution shall continue in the transferee court.

(2022)

The amendment to the heading of Rule 37(a) implements the terminological change from “sentence” to “disposition” required by Commonwealth v. Beverly, 485 Mass. 1 (2020).

(1979)

This rule is drawn from Fed.R.Crim.P. 20, 21 and 22 and substantially expands Massachusetts practice relative to the transfer of pending criminal proceedings. 

Subdivision (a)

Subdivisions (a)(1) and (2), applicable respectively to the District and Superior Court Departments, are modeled after Fed.R.Crim.P. 20(a) and 22. It is intended that the request to consolidate complaints or indictments for plea and sentence is to be made at the initial appearance. The arraignment date is to be set at a time sufficiently after the initial appearance to allow the transmittal of the necessary papers (See subdivision [c], infra). The rule is not to be read to permit the consolidation of an indictment with a complaint for trial or plea in the District Court. Nor may complaints pending in District Court be consolidated with Superior Court proceedings (except where the defendant waives indictment and is bound over so that the case is properly in Superior Court. Mass.R.Crim.P. 3). Where the defendant appears in Superior Court upon a complaint or indictment and there are complaints outstanding in divisions of the District Court within that same county, the District Attorney may proceed by direct indictment (Mass.R.Crim.P. 3[e]), may make an appropriate disposition of the lower court charges pursuant to a plea arrangement (Mass.R.Crim.P. 12[b]), or may nol prosse the charges (Mass.R.Crim.P. 16) if the interests of the parties and the court so dictate. 

Subdivision (a)(3) is substantially identical to Fed.R.Crim.P. 20(c). 

Subdivision (b)

Subdivision (b)(1) parallels Fed.R.Crim.P. 21(a) and has a statutory precedent in G.L. c. 277, § 51. 

Under most circumstances a trial is held where the indictment or complaint is pending. This in fact is a constitutional right of the defendant. Article 13 of the Massachusetts Declaration of Rights provides:

In criminal prosecutions, the verification of facts in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen. 

However, the common law recognized the right of a defendant to have the case removed to another community for the purpose of achieving an impartial trial. Commonwealth v. Handren , 261 Mass. 294, 296-97 (1927); Crocker v. Justices of the Superior Court , 208 Mass. 162, 174-75 (1911). And the right to a fair and impartial trial is guaranteed by the fourteenth amendment to the United States Constitution, which right includes the right “to show that a change of venue is required” in a particular case. Groppi v. Wisconsin , 400 U.S. 505, 511 (1971). 

A defendant in a capital case has a statutory right to seek a transfer of the trial to any adjoining county. G.L. c. 277, § 51. This statutory right is, in many cases, too limited to permit removal to a venue uninfected by the prejudice and the statute is not to maintain its vitality except as precedent for the broader rule. See generally Commonwealth v. Turner , 371 Mass. 803, 807 (1977). In some cases, the transfer need not be to another county if an impartial jury panel can be found in another court within the same county. 

The motion must be made prior to trial. See Commonwealth v. Noxon, 319 Mass. 495, 550, 66 N.E.2d 814 (1946). If the jury has been impanelled, and the court is satisfied that the jurors are impartial, the defendant cannot later claim that the situs of trial was improper. 

The trial court has discretion as to whether pretrial publicity has so infected the community where proper venue lies as to require a transfer to another community. E.g.,  Commonwealth v. Turner , 371 Mass. 803, 806-807 (1977). The transfer, however, should not be ordered without a substantial showing of prejudice. As the Supreme Judicial Court said in Crocker v. Justices of the Superior Court , 208 Mass. 162 (1911): 

Such a motion ought not to be granted upon mere suggestion, nor unless the reason for it is fully established. It is a jurisdiction which should be exercised with great caution and only after a solid foundation of fact has been first established. Manifestly, it should be resorted to only in aid of justice, and it should not be permitted to be employed as an instrument of obstruction or as a means of delay. 

Id. at 180. The mere fact that a juror has been exposed to pretrial publicity concerning the case does not mean that his impartiality has been affected. This normally can be adequately tested during the voir dire. Commonwealth v. Smith , 357 Mass. 168 (1970). In addition to questioning prospective jurors as to their bias, the court should consider the extent of the publicity concerning the case and the nature of the charges. Some crimes give rise to heightened community response more readily than others. See Commonwealth v. Blackburn , 354 Mass. 200, 203-04 (1968); Commonwealth v. Smith , 353 Mass. 487, 489-90 (1968). In some cases the extent of the publicity will be so great as to mandate a transfer of the trial. It is presumed in these cases that an impartial jury cannot be obtained from the mere fact of the exposure of the crime to the public. Rideau v. Louisiana , 373 U.S. 723 (1963). 

Subdivision (b)(2), drawn from Fed.R.Crim.P. 21(b), provides for the inter-division or inter-county transfer of charges of related offenses for trial. Such transfer is contingent upon the approval of the court and of the prosecutors involved. The rule is intended to conserve judicial resources by obviating the need for separate trials of related offenses which were committed in different divisions or counties. 

Subdivision (c)

This subdivision is in conformity with both Fed.R.Crim.P. 20(a) and 21(c) and with G.L. c. 277, § 52. The language was taken in part from each source. 

Other statutes in Massachusetts are applicable to the transfer of cases in specific factual situations, and these are to maintain their vitality. General Laws c. 277, § 53 is applicable when the transfer is to a different county and the defendant is in custody. It should be noted that while this rule is concerned with the transfer of cases which are to be tried in Superior Court upon indictment, it is intended to be equally applicable to cases to be tried in District or Superior Court upon complaint. In this respect, the rule goes beyond the provisions of G.L. c. 277, §§ 51-54 which are, technically speaking, applicable only to trial upon indictment.