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(Applicable to District Court and Superior Court)
All criminal contempts not adjudicated pursuant to rule 43 shall be prosecuted by means of complaint, unless the prosecutor elects to proceed by indictment. Except as otherwise provided by these rules, the case shall proceed as a criminal case in the court in which the contempt is alleged to have been committed.
The District Court shall have jurisdiction to try all contempts committed therein except those prosecuted by indictment. Whenever a contemnor asserts his right to a jury trial in District Court, the trial shall be held before a jury in District Court. The contemnor's only right of appeal shall be to the Appeals Court.
The contempt charges shall be heard by a judge other than the trial judge whenever the nature of the alleged contemptuous conduct is such as is likely to affect the trial judge's impartiality.
Contempts that are not or cannot be tried summarily in accordance with Rule 43 must be tried under the provisions of Rule 44. Rule 44 carries the recent developments in the law of contempt to a logical conclusion by requiring all contempts not summarily tried to be prosecuted under the procedures established for the trial of other criminal offenses.
In any alleged contempt to be adjudicated pursuant to this rule, the defendant has the right to a jury trial. Bloom v. Illinois , 391 U.S. 194 (1968), adopted the standard established in Duncan v. Louisiana , 391 U.S. 145 (1968) for determining when the right to a jury trial accrues to a defendant and applied that standard to criminal contempt. Duncan accepted the established rule that maximum sentences of under six months denote petty offenses. It was established in Baldwin v. New York , 399 U.S. 66, 69 (1970), that authorized maximum punishment of greater than six months indicated a serious offense. Since the maximum punishment for contempt is often not regulated by statute, the determination of whether a particular contempt charge is a serious or petty offense is to be made with reference to the penalty actually imposed. See Bloom v. Illinois, supra at 211; Codispoti v. Pennsylvania , 418 U.S. 506, 512 (1974). Under Mass.R.Crim.P. 43(a)(3), that reference will be to whether the sentence exceeds three months’ imprisonment or a fine of $500.
Initiation of prosecution by complaint is an historically recognized manner of bringing charges for indirect contempt in the Commonwealth. Dolan v. Commonwealth , 304 Mass. 325, 337 (1939). See generally, the cases cited by the Court in Dolan at 337 for further similarities existing between prosecutions for indirect contempt and other criminal prosecutions.
One exception to the claim of similarity between a contempt prosecution under this rule and other criminal prosecutions should be noted: the right to indictment by grand jury, to which contemnors are not entitled at present, is not to be extended to them by interpreting this rule broadly. In ordinary criminal prosecutions, a defendant has the right to indictment for those crimes punishable by a term in the state prison. Jones v. Robbins , 74 Mass. (8 Gray) 329, 350 (1857). General Laws c. 220, § 14 , as interpreted by the Court in Hurley v. Commonwealth , 188 Mass. 443, 448 (1905), precludes contempt commitments other than to the “common jail.” Since the maximum term of imprisonment in a jail or house of correction is set at two and one-half years by G.L. c. 279, § 23, and since no grand jury indictment is required to confine a defendant for that period of time (see Mass.R.Crim.P. 3, Complaint; Indictment), it is apparent that no right to prosecution by indictment exists in contempt cases. Federal case law is in accord on this point. Green v. United States , 356 U.S. 165, 183 (1958); United States v. Eichhorst , 544 F.2d 1383, 1386 (7th Cir.1976); Mitchell v. Fiore , 470 F.2d 1149, 1153 (3rd Cir.1972); United States v. Bukowski , 435 F.2d 1094, 1101 (7th Cir.1970).