Rules of Criminal Procedure

Rules of Criminal Procedure  Criminal Procedure Rule 7: Initial appearance and arraignment

Effective Date: 06/01/2012
Updates: Amended February 27, 2012, effective June 1, 2012.

(Applicable to cases initiated on or after September 7, 2004)

Table of Contents

(a) Time of arraignment; probation interview; indigency and bail reports

(1) Upon arrest or summons

A defendant who has been arrested and is not released shall be brought for arraignment before a court if then in session; and if not, at its next session. A defendant who receives a summons or who has been arrested but is thereupon released shall be ordered to appear before the court for arraignment on a date certain.

(2) Arrest of a juvenile

Upon the arrest of a juvenile, the arresting officer shall notify the parent or guardian of the juvenile and the probation office.

(3) Probation interview

On the day of the arraignment, the probation department shall interview the defendant; the probation department shall report to the court the pertinent information reasonably necessary to determine the issues of bail and indigency.

(b) Arraignment procedure

(1) Notice; plea; and bail

The court shall:

(A) read the charges to the defendant in open court, except that the reading of the charges in open court may be waived by the defendant if he or she is represented by counsel;

(B) enter the defendant's plea to the charges;

(C) inform the defendant of all warnings and advisories required by law; and,

(D) determine the conditions of the defendant's release, if any.

(2) Appointment of counsel

If the court finds that the defendant is indigent or indigent but able to contribute and has not knowingly waived the right to counsel under the procedures established in Supreme Judicial Court Rule 3:10, the Committee for Public Counsel Services shall be assigned to provide representation for the defendant.

(3) Provision of criminal record; preservation of evidence

The court shall ensure that at or before arraignment, (i) a copy of the defendant's criminal record, if any, as compiled by the Commissioner of Probation is provided to the defense and to the prosecution, and (ii) the parties are afforded an opportunity to move for the preservation of evidence pursuant to Rule 14(a)(1)(E) .

(4) Order scheduling pretrial proceedings

At a District Court arraignment on a complaint which is outside of the District Court's final jurisdiction or on which jurisdiction is declined, the court shall schedule the case for a probable cause hearing. In all other District and Superior Court cases the court shall issue an order at arraignment requiring the prosecuting attorney and defense counsel to (1) engage in a pretrial conference on a date certain, and (2) appear at a pretrial hearing on a specified subsequent date.

(c) Appearance of counsel

(1) Filing

An appearance shall be entered by the attorney for the defendant and the prosecuting attorney on or before the arraignment. The appearance may be entered either by personally appearing before the clerk or by submitting an appearance slip, which shall include the name, Board of Bar Overseers number, address, and telephone number of the attorney. An attorney appearing on behalf of an organization shall also file with the court proof of the attorney's authorization to represent the organization.

(2) Effect; withdrawal

An appearance shall be in the name of the attorney who files the appearance and shall constitute a representation that the attorney shall represent the defendant for trial or plea or shall prosecute the case, except that, if at the arraignment such a representation cannot be made and no contrary legal restriction applies, (1) the court may permit an appearance to be entered by an attorney to represent the defendant or prosecute the case for such time as the court may order, and (2) the court shall permit an appearance in the name of the prosecuting agency, which shall constitute representations that the agency will prosecute the case, will ensure that throughout the duration of the appearance a prosecutor is assigned to the case, and upon request of the court or a party will identify the prosecutor assigned to the case. If the attorney who files an appearance for the defendant on or before the arraignment wishes to withdraw the appearance, he or she may do so within fourteen days of the arraignment, provided that the attorney who shall represent the defendant at trial files an appearance simultaneously with such withdrawal; thereafter no appearance shall be withdrawn without permission of the court. The appearance of the prosecuting officer shall be withdrawn only with permission of the court.

(3) Notice

A copy of all appearances and withdrawals of appearance shall be filed and shall be served upon the adverse party pursuant to Rule 32.

Reporter's notes

(2012). In 2012, Rule 7 was amended in several respects. These revisions are discussed below.

Subdivision (a)(1)

Defendants who are released on bail prior to the issuance of a complaint or those who receive a summons must be ordered to appear in court for their arraignment on a date certain. Courts may establish their own policy on whether that date falls on the same day of every week or within a particular time frame. The 2012 amendments eliminated the separate event of an initial appearance prior to arraignment. The widespread availability of counsel to represent defendants at arraignment made this separate event unnecessary. The 2012 amendments also eliminated the procedure that allowed a summonsed defendant who had retained counsel to be excused from appearing until the pretrial conference or trial.

Subdivision (b)(1)

By referring to "the court" as the responsible agency for conducting all of the activities surrounding the arraignment, this subdivision is meant to include judges, special magistrates, and any Superior Court clerk-magistrates authorized to conduct arraignments.

Subdivision (b)(1)(A)

This provision requires that the arraignment take place in open court. It restates accepted practice, reflected in the mandate of Foley v. Commonwealth, 429 Mass. 496, 498 (1999). The concept of an open court means that the public must be allowed access absent "'an overriding interest based on findings that closure is essential to preserve higher values arid is narrowly tailored to serve that interest."' Boston Herald v. Superior Court, 421 Mass. 502, 505 (1995), quoting Press-Enter. Co. v. Superior Court, 464 U.S. 501, 510 (1984). Arraignments may take place outside of a courtroom, in settings such as correctional facilities, see Foley,supra, or hospitals, see Boston Herald, supra, so long as the public's right of access to the proceedings is as free as in a courthouse, subject to the same considerations that might lead a judge to close a courtroom to the public.

Subdivision (b)(1)(C)

This provision is intended to alert all the participants at the arraignment of the provisions for notice that appear outside the Rules of Criminal Procedure, such as the bail warning mandated by G. L. c. 276, § 58, and the requirement of G. L. c. 111E, § 10; that defendants charged with drug offenses have a right to request an examination concerning drug dependency.

Subdivision (c)(1)

When an attorney in a criminal case appears for an organization, whether incorporated or not, he or she must present the court with proof of authority to act on behalf of the defendant. The proof of authority that this subdivision requires can come in the form of a resolution by a board of directors in the case of a corporate defendant or a similar statement from the person or group authorized to make litigation decisions on behalf of an unincorporated organization. SJC Rule 1:21 already requires corporate defendants in criminal cases to file a disclosure form revealing the identity of any parent corporation or any publicly listed company that owns 10% or more of its shares.

(2004) Rule 7 governs the initial appearance and arraignment. It is based in part upon Fed. R. Crim. P. 5, 5.1, and 10. See ALI Model Code of Pre-Arraignment Procedure § 310.1, .3, .5 (POD 1975); Rules of Criminal Procedure (ULA) rules 311 13, 321 (1974). In 2004, Rule 7 was amended in four respects. The revisions mandate: that in some circumstances counsel be permitted to enter a limited appearance; that the defendant receive a copy of his or her criminal record at arraignment; that the parties have an opportunity to move to preserve evidence at arraignment; and that pretrial conference and hearing dates, or alternatively a probable cause hearing date, be assigned at the initial appearance. These revisions are addressed in detail infra.

Subdivision (a)(1)

Subdivision (a) provides that when a defendant has been arrested, he or she is to be brought immediately to appear before a court if then in session, and if not, then at its next session.

Pursuant to G.L. c. 119, §§ 67 , notice of the arrest of a juvenile is required to be given to the parent of the juvenile and to the probation officer for the district in which the accused is arrested, unless the juvenile was arrested as a child in need of service pursuant to G.L. c. 119, §§ 39H , which contains alternative notification requirements. The purpose of this notice is to permit the prompt release of a juvenile, consistent with G.L. c. 119, §§ 66 , which discourages the detention of juvenile offenders, unless, in the opinion of the arresting officer or the probation department, cause exists to hold him or her.

Massachusetts case law requires that an arrested defendant be brought before a court for arraignment as soon after arrest as is reasonably possible. Commonwealth v. Dubois, 353 Mass. 223 (1967); Keefe v. Hart, 213 Mass. 476 (1913). Whether or not delay has been unreasonable is to be determined on a case by case basis, Commonwealth v. Banuchi, 335 Mass. 649 (1957), and in light of all the circumstances. Commonwealth v. Perito, 417 Mass. 674 , 680 (1994); Commonwealth v. Hodgkins, 401 Mass. 871 , 876-77 (1988). Generally, arraignment the next morning following arrest is not unreasonable when a defendant is arrested late in the day. United States v. Connell, 213 F. Supp. 741 (D. Mass. 1963); Commonwealth v. Daniels, 366 Mass. 601 (1975); Commonwealth v. Dubois, supra. Rule 7(a) codifies this case law by mandating that the defendant be brought before the court immediately if the court is in session, and if not, then at its next session. This requirement is primarily intended to prevent both unlawful detentions and unlawfully obtained statements. Commonwealth v. Cote, 386 Mass. 354 , 361 n. 11 (1982). However, in Commonwealth v. Rosario, 422 Mass. 48 (1996), the S.J.C. established a bright line rule that an otherwise admissible statement taken within a six hour period following arrest should not be excluded, even if the court was in session at the time.

This initial appearance before the court serves several functions. First, at this time, the defendant will be interviewed by the probation department. The results of this interview, together with an investigative report by the probation department as to prior criminal prosecutions and juvenile complaints, will be communicated to the court. See Mass. R. Crim. P. 28(d)(1)-(2) . This information will form the basis of decisions as to pretrial release. Moreover, this information will be used to determine whether a defendant is indigent or indigent but able to contribute. If the court so determines, then it will assign the Committee for Public Counsel Services to represent him according to the requirements of G.L. c. 211D and Supreme Judicial Court Rule 3:10 . If the defendant was arrested without a warrant, there must also be a judicial determination of probable cause within twenty four hours, as provided in Rule 3.1. See Jenkins v. Chief Justice of the District Court Dep't, 416 Mass. 221 (1993). Finally, at this time the court shall establish a time for arraignment or other proceeding.

The initial appearance and arraignment, although distinguishable by their respective functions, need not be separate events. The preferred practice, however, is to postpone arraignment until such time as the defendant has had a meaningful opportunity to consult with counsel. See District Court Initial Rule of Criminal Procedure 2, comment (1971).

The vital importance of the component parts of arraignment must not be lost in the tedium of repetition so as to foreclose inadvertently the rights of the uninformed defendant. Among the decisions to be made is whether to plead guilty or nolo contendere, or to admit to sufficient facts. Mass. R. Crim. P. 12. Representation by counsel is necessary to ensure that the defendant understands that by selecting among these alternatives he or she is exercising or waiving substantial rights. Counsel should also be available to advise the defendant whether to exercise "drug rights," G.L. c. 111E, §§ 10 ; whether to undergo examination for competence, G.L. c 123, §§ 15 ; whether he or she may qualify for diversion as a selected offender, G.L. c. 276A ; whether arrangements should be made for a stenographer, G.L. c. 221, §§ 91B ; whether to consider mediation in cases where it is offered; and whether the charges may be subject to dismissal. In addition, at arraignment the defendant may waive reading of the charges, subdivision (c), infra; and the case will be ordered to conference, Mass. R. Crim. P. 11. These considerations are all important to the ultimate rights of the defendant and decisions should not be casual or perfunctory. Therefore, if counsel is to be provided, there should be a prompt assignment or appointment, and time should be allowed for consultation. The initial appearance and arraignment can be held on the same day if assigned or appointed counsel is then present in court or is available without delay, and if there is an opportunity for adequate consultation.

The fact that a defendant is to be afforded time to discuss the case with counsel is not to be relied upon by the prosecution to justify undue delay in bringing the defendant before the court for arraignment.

Subdivision (a)(2)

If a defendant is issued a summons instead of being arrested, a procedure different from that under subdivision (a)(1) prevails. In such an instance a defendant who has retained counsel need not be present at the scheduled initial appearance if his or her counsel enters an appearance prior thereto. This is required in order that the prosecution and any witnesses of the parties may be notified not to attend. When counsel enters an appearance, the clerk will set the time for the next scheduled event which will require the defendant's presence-usually the pretrial conference or pretrial hearing - and counsel will notify the defendant thereof.

Subdivision (a)(2) does not require the defendant's presence on the date specified on the summons (unless that is the date established by the clerk when counsel enters his or her appearance) because the purposes for the initial appearance outlined in subdivision (a)(1) have been fulfilled. See Rules of Criminal Procedure (ULA), rule 312.

The purpose of this subdivision is to conserve judicial resources and those of the defendant by dispensing with unnecessary appearances. Further, the pretrial liberty of defendants who are likely to appear for arraignment is not compromised.

The defendant who cannot afford or who does not have retained counsel must attend at the initial appearance at the time set in the summons. Prior to that time, the defendant must have appeared at the probation department so that information relative to the issues of bail and indigency may be gathered. If a defendant intends to waive counsel, the waiver should be executed at the initial appearance.

Subdivision (b)

This subdivision governs the entry and withdrawal of appearances by counsel. It combines and revises former subdivisions (b) and (c), which had treated District Court and Superior Court appearances differently. Following the abolition of the district court de novo system, a 2004 amendment to this Rule instituted a uniform procedure for both trial courts. It also revised the rule to permit limited appearances in some circumstances - a more efficient option when fully competent counsel is present but unable to submit an appearance guaranteeing representation throughout the case. Assistant district attorneys often do not represent the Commonwealth in a case from beginning to end, and sometimes a public defender or bar advocate is on duty for bail and arraignment sessions only. The original formulation of this subdivision deflected progress in the case in by generally barring the appearance of counsel for such limited purposes.

As amended, subdivision (b) provides that the entry of an appearance by defense counsel presumes that he or she will represent the defendant at the tender of a plea or at trial, but permits the court to order an appearance for a shorter period when no contrary constitutional, legislative or judicial restriction applies. For example, District Court Dept. Supplemental Rule of Criminal Procedure 8(8) authorizes the appointment of an attorney "for arraignment only," but prohibits any other kind of limited appointment. Rule 7(b) as amended is not intended to preempt such court rules, but to provide the flexibility necessary for courts to formulate and revise such rules over time. An appearance entered by defense counsel may only be withdrawn as of right within fourteen days after arraignment and provided substitute counsel has simultaneously entered an appearance.

A second revision introduces a responsible degree of flexibility with regard to appearances by the prosecution. An appearance entered by a prosecutor constitutes a representation that he or she will prosecute a case at trial and may only be withdrawn with permission of the court. However, if such a representation cannot be made, subdivision (b)(2) allows an appearance to be entered in the name of the prosecuting agency, but this requires the office (a) to ensure that throughout the duration of the appearance a prosecutor is assigned to the case, and (b) upon request of the court or other counsel, to identify the prosecutor then assigned to the case. These requirements were added to the rule in 2004 to ameliorate a difficulty in then existing district court practice: defense counsel was too often unable to speak with a district attorney about the case between arraignment and the next scheduled date because no assistant district attorney had yet been assigned to it. This revised procedure will facilitate early discussions between the parties, and also insure that notices delivered to the offices of the Attorney General or a District Attorney will be brought to the immediate attention of the assistant handling the case.

Subdivision (c)

The major functions of the arraignment are to inform the defendant of the charge and to receive his or her plea thereto. Subdivision (c)(1) permits the defendant to waive the reading of the charges if represented by counsel. This is a restatement of District Court Initial Rule of Criminal Procedure 1 (1971); accord, Rules of the Municipal Court of the City of Boston Sitting for Criminal Business 1 (1971).

If the defendant's attendance at the initial appearance is excused, subdivision (c)(2) provides for the automatic entry of a plea of not guilty. Implicit in (c)(2) is a waiver of the reading of the charge. There is then no arraignment as defined in this Rule and the next event is usually the pretrial conference.

Subdivision (d)

This subdivision mandates two additional procedures at arraignment. First it requires that the defendant be provided with his or her criminal record at arraignment. This was customarily the case long before the promulgation of this subdivision in 2004, and in district court was already mandated by Dist./Mun. Cts. R. Crim. P. 3. (That Rule goes beyond this subdivision, however, by also requiring the prosecution to provide certain police statements to the defendant at a district court arraignment.) Second, subdivision (d) provides an opportunity at arraignment for the parties to seek an order to preserve evidence that is not subject to a Rule 14 discovery order. Rule 14 discovery reaches only items in the possession, custody or control of the prosecution, its team, or those working with it on the case. But private parties or government agencies not working on the case may have relevant evidence that could be destroyed absent court action. Such evidence should not be subject to an individual's unfettered decision to destroy it in cases where counsel for a party considers preservation important. Therefore, under Rule 14(a)(1)(E) , the parties may move for an order preserving this evidence. Subdivision (d) of Rule 7 simply guarantees the parties an opportunity to be heard on this motion at the initial appearance, since expedition may be crucial in such cases.

When a preservation order is requested at arraignment, the non party custodian of the evidence is not likely to be present to assert its interests. However, the non party may subsequently contest the order, or request the court to use its authority under subdivision 14(a)(1)(E)(ii) to "modify or vacate such an order upon a showing that preservation of particular evidence will create significant hardship, on condition that the probative value of said evidence is preserved by a specified alternative means."

Subdivision (e)

This subdivision, promulgated in 2004, requires the District Court to issue an order at the initial appearance scheduling subsequent pretrial proceedings. For this purpose the subdivision distinguishes between a "probable cause track" and a "pretrial conference/pretrial hearing" track. The latter requires the court to schedule both a pretrial conference (between the attorneys) and a pretrial hearing, each further addressed in Rule 11. As to the former, some District Court arraignments are continued for probable cause hearings rather than pretrial conferences. Under the statutory mandate that probable cause hearings be held "as soon as may be", G.L. c. 276 §§ 38 , the Court should not assign any intervening pretrial conferences or hearings when it intends to, or by statute must, bind over the case. The subdivision's recognition of a separate "probable cause track" is necessary to effectuate this statutory requirement. However, nothing in Rule 7(e) prevents the court from subsequently continuing the probable cause hearing to another date, or (in concurrent jurisdiction cases) from ordering a short continuance of the initial hearing to permit counsel to prepare arguments on whether district court jurisdiction should be declined.

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