Reporter’s notes

Rule 2 is perhaps the most significant of the rules in advancing the trend toward a high degree of procedural fairness in the administration of criminal justice. This is so because the rule not only permits but requires the rules to be construed and applied in a manner which provides for fairness in their administration to the end that a just determination in every criminal proceeding shall be achieved. The rules must be approached with sympathy for this purpose; they must be interpreted with common sense.

The rules were not intended to be administered inflexibly without regard for the circumstances of the particular case. Where a literal interpretation of a rule and its application in a specific situation would lead to unnecessary expense or delay, would unduly complicate the proceedings, or would operate unfairly or produce an unjust result, that interpretation is to yield to the principle enunciated in Rule 2(a).

This is not to imply that the rules were conceived as merely guidelines or suggested procedures to which the courts and counsel need adhere only as will further their particular interests. They have the force and effect of law.

The appellate courts have made it increasingly clear that abuse of power by the prosecution or by trial judges is not to be tolerated. See eg., S.J.C. Rule 3:22A, Disciplinary Rules Applicable to Practice as a Prosecutor or as a Defense Lawyer, PF 1-14 (Feb. 14, 1979); Commonwealth v. St. Pierre, 377 Mass. 650 (1979); Commonwealth v. Soares, 377 Mass. 461 (1979); Commonwealth v. Ellison, 376 Mass. 1 (1978); Commonwealth v. Earltop, 372 Mass. 199 (1977) (Hennessey, C.J., concurring); Commonwealth v. Redmond, 370 Mass. 591 (1976); Commonwealth v. Sneed, 376 Mass. 867 (1978). It is equally apparent that a high standard of conduct is demanded of defense counsel, See S.J.C. Rule 3:22A, supra, DF 1-15. A disregard for these rules of court or a failure to adhere to their provisions are abuses of the system which can be expected to produce problems in the administration of justice and unfairness to the Commonwealth, defendants, and the public, and which, therefore, should not be tolerated by either the trial or appellate courts.

Subdivision (a)

The language of the first paragraph is drawn virtually without change from Fed.R.Crim.P. 2. These rules are intended to minimize complicated proceedings and needless expense and delay and are to be construed so as to achieve that goal.

The principle of construction stated in subdivision (a)(1) is taken from G.L. c. 4, § 6 , cl. fourth, which relates to the construction of the General Laws.

Subdivision (a)(2) is designed to avoid any confusion in reading references to subdivisions. Included in a reference to a subdivision are all paragraphs, subparagraphs, and clauses of that subdivision.

Subdivision (b)

These definitions are to be used in construing these rules unless a contrary interpretation is clearly demanded by the context within which the term is used. See G.L. c. 4, § 7, c. 3, § 63.

(1) Appointed counsel. This definition is suggested by Superior Court Rule 53(3) (1974); it is to be distinguished from “Assigned Counsel,” infra.

(2) Assigned counsel. The terms “appointed counsel” and “assigned counsel” have been used interchangeably in the case law. See e.g., Costarelli v. Municipal Court of the City of Boston, 367 Mass. 35 , 323 N.E.2d 859 (1975). However, for the purposes of these rules, each term has been given a separate and distinct definition. In these rules, “assigned counsel” means a member of a publicly funded or charitable organization, such as the Massachusetts Defenders Committee (G.L. c. 221, § 34D. See Rule 8[b]), or a county defender. “Appointed counsel” denotes a private attorney who is designated by a judge or magistrate to represent a defendant who cannot afford counsel. Both assigned and appointed counsel may include senior law students appearing without compensation on behalf of indigent defendants as permitted by S.J.C. Rule 3:11 (1974: 366 Mass. 867, as amended, 1975: 367 Mass. 914).

(3) Capital crime. This definition is drawn from existing case law, e.g., Commonwealth v. Capalbo, 308 Mass. 376 , 32 N.E.2d 225 (1941); Commonwealth v. Ibrahim, 184 Mass. 255 , 68 N.E. 231 (1908); Green v. Commonwealth, 94 Mass.155 (12 Allen 155) (1866). Compare G.L. c. 278, § 33E (capital crime defined “for the purposes of … [appellate] review” only). General Laws c. 274, § 2 provides that, “Whoever aids in the commission of a felony, or is accessory thereto before the fact by counselling, hiring or otherwise procuring such felony to be committed, shall be punished in the manner provided for the punishment of the principal felon.” Therefore, an indictment of a defendant as an accessory before the fact of first degree murder sets out a capital crime. Grady v. Treasurer of the County of Worcester, 352 Mass. 702 , 704, 227 N.E.2d 490 (1967).

(4) Commonwealth. The definition of this term reflects the meaning of the word as commonly used in the case law and statutes.

(5) Court. This term is used in the rules to include those officials most intimately involved in the process of adjudicating cases. When so generically used, the word is not to be construed so as to expand or limit those duties traditionally or by law within the prerogative of certain officials.

(6) District attorney or attorney general. As with “Commonwealth,” supra, these terms are used both in the sense of the office and the personnel thereof in their official capacity.

(7) District Court. General Laws c. 211B, § 1 (inserted by St.1978, c. 478, § 110) established the Trial Court of the Commonwealth which consists in part of the Superior Court Department, the District Court Department, the Boston Municipal Court Department, and the Juvenile Court Departments. For ease of reference throughout these rules, the latter three Departments are included within the term “District Court.” It is in keeping with the policy of these rules to secure simplicity and uniformity in procedure to make the Juvenile Court Department subject to these rules, insofar as they are consistent with juvenile practice. See District Court Special Rule 2 (1974), which applies the rules of the District Court to juvenile proceedings insofar as they are “pertinent.”

(8) Interested person. This term specifies those persons who are entitled to notice of, for example, the filing of motions, Mass.R.Crim.P. 13, 32, or the taking of a deposition, Mass.R.Crim.P. 36.

(9) Judge. In addition to its accepted meaning, for purposes of these rules this term is to include a magistrate when used in reference to a function which that official is authorized to perform by Mass.R.Crim.P. 48.

(10) Juvenile court. See G.L. c. 211B, § 1 (inserted by St.1978, c. 478, § 110), c. 218, §§ 57-60 (St.1978, c. 478, §§ 212-16). The divisions of the Juvenile Court Department, within their respective jurisdictions, have and exercise the same powers, duties and procedures as the District Court or Municipal Court Departments and are subject to the laws relating thereto, so far as applicable. G.L. c. 218, § 59 (as amended, St.1978, c. 478, § 215).

(11) Mailing. It is intended that unless specifically provided for elsewhere in these rules, neither registered nor certified mailing is required.

(12) Prosecuting attorney. This term includes those attorneys who prosecute the majority of criminal cases in the Commonwealth.

(13) Prosecutor. This definition is broader than that of “prosecuting attorney,” and reflects the fact that many cases in the District Courts are prosecuted by a police prosecutor. Under these rules, some prosecutorial functions can be carried on only by a district attorney or attorney general. See e.g., Mass.R.Crim.P. 15(d)(1)(B). A prosecutor may include senior law students appearing on behalf of the Commonwealth pursuant to S.J.C. Rule 3:11 (1974: 866 Mass. 867, as amended, 1975: 367 Mass. 914).

(14) Related offense. For further explanation of this definition, see Mass.R.Crim.P. 9 and Reporter’s Notes.

(15) Return day. The “return day” is the date upon which a defendant under arrest first appears in court or the date upon which a defendant not under arrest is scheduled to appear pursuant to summons. It is the date upon which speedy trial rights attach (Mass.R.Crim.P. 36[b][1]) and from which other time limits are measured.

(16) Special magistrate. The office of “Special Magistrate” is defined in terms of its powers and duties. See Mass.R.Crim.P. 47. Special Magistrates are to be distinguished from “Magistrates in the Trial Court” under G.L. c. 221, §§ 62B-62C (inserted by St,1978, c. 478, § 250).

(17) Summons. This definition includes process issued pursuant to Mass.R.Crim.P. 6 and 17. The definitions contained in subdivisions (b)(17)(B) and (C) of this rule replace the older term “subpoena.”

(18) Superior Court. See G.L. c. 211B, § 1 (inserted by St. 1978, c. 478, § 110), c. 212 (as amended, St.1978, c. 478, §§ 115-25).