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(Applicable to Superior Court)
The justices of the Superior Court may appoint special magistrates to preside over criminal proceedings in the Superior Court. Such special magistrates shall have the powers to preside at arraignments, to set bail, to assign counsel, to supervise pretrial conferences, to mark up pretrial motions for hearing, to make findings and report those findings and other issues to the presiding justice or Administrative Justice, and to perform such other duties as may be authorized by order of the Superior Court. The doings of special magistrates shall be endorsed upon the record of the case. Special magistrates shall be compensated in the same manner as is provided by the General Laws for the compensation of masters in civil cases.
Under prior law, magistrates served primarily as bail commissioners. G.L. c. 262, §§ 23-24 . Sections 62B and 62C of chapter 221 of the General Laws, inserted by St.1978, c. 478, § 250, established the office of Magistrate in all Departments of the Trial Court and gave to that official certain quasi-judicial powers. This rule is not intended to expand the powers which such statutory Trial Court Magistrates may exercise, but to create the new and separate position of Special Magistrate in the Superior Court Department.
Special Magistrates in criminal cases shall have the authority to assign counsel (Mass.R.Crim.P. 8), set bail, and preside at arraignment (Mass.R.Crim.P. 7), and their duties shall include the supervision of pretrial conferences (Mass.R.Crim.P. 11) and the marking up of pretrial motions for hearing (Mass.R.Crim.P. 13). The rule is broad enough to permit assignment of some fact finding functions to Special Magistrates, although the exact dimension of those functions is left to definition by appropriate order of the Administrative Justice of the Superior Court Department. In this respect the Special Magistrate will differ little from masters as appointed by the Supreme Judicial Court under longstanding practice, especially in habeas corpus proceedings.
It is intended that Special Magistrates under this rule, because of the nature of their quasi-judicial responsibilities, be at the least attorneys admitted to practice before the bar and preferably that they be retired judges. Special Magistrates are to be compensated as are masters in civil practice. G.L. c. 221, § 55 (as amended, St.1978, c. 478, § 247); Mass.R.Civ.P. 53(a), Superior Court Rule 49(3) (1974).
While similar to federal magistrates, the office of Special Magistrate under this rule does not carry with it such broad powers. The federal officer can conduct trials for minor offenses and sentence those who are found guilty. 18 U.S.C. §§ 3401-02 . Before a federal magistrate can conduct a trial, however, the defendant must consent in writing and specifically waive both a trial before a District Court judge and the right to trial by jury, subject to enumerated qualifications. Under this rule the defendant is to have no objection to proceeding before a Special Magistrate since the functions to be performed by the office of Special Magistrate are administrative rather than adjudicatory.