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Rule 36 – Case Management

May 13, 2021 | Criminal Procedure, Massachusetts

(Applicable to District Court and Superior Court)

(a) General Provisions.

(1) Order of Priorities. The trial of defendants in custody awaiting trial and defendants whose pretrial liberty is reasonably believed to present unusual risks to society shall be given preference over other criminal cases.
(2) Function of the Court.

(A) District Court. The court shall determine the sequence of the trial calendar.
(B) Superior Court. The court shall determine the sequence of the trial calendar after cases are selected for prosecution by the district attorney.
(b) Standards of a Speedy Trial. The time limitations in this subdivision shall apply to all defendants as to whom the return days is on or after the effective date of these rules. Defendants arraigned prior to the effective date of these rules shall be tried within twenty-four months after such effective date.

(1) Time Limits. A defendant, except as provided by subdivision (d)(3) of this rule, shall be brought to trial within the following time periods, as extended by subdivision (b)(2) of this rule:

(A) during the first twelve month period following the effective date of this rule, a defendant shall be tried within twenty-four months after the return day in the court in which the case is awaiting trial.
(B) during the second such twelve-month period, a defendant shall be tried within eighteen months after the return day in the court in which the case is awaiting trial.
(C) during the third and all successive such twelve-month periods, a defendant shall be tried within twelve months after the return day in the court in which the case is awaiting trial.
(D) If a retrial of the defendant is ordered, the trial shall commence within one year after the date the action occasioning the retrial becomes final, as extended by subdivision (b)(2) of this rule. The order of an appellate court requiring a retrial is final upon the issuance by the appellate court of the rescript. In the event that the clerk of the appellate court fails to issue the rescript within the time provided for in Massachusetts Rule of Appellate Procedure 23, retrial shall commence within one year after the date when the rescript should have issued.

If a defendant is not brought to trial within the time limits of this subdivision, as extended by subdivision (b)(2), he shall be entitled upon motion to a dismissal of the charges.

(2) Excluded Periods. The following periods shall be excluded in computing the time within which the trial of any offense must commence:

(A) Any period of delay resulting from other proceedings concerning the defendant, including, but not limited to:

(i) delay resulting from an examination of the defendant and hearing on his mental competency or physical incapacity;
(ii) delay resulting from a stay of the proceedings due to an examination or treatment of the defendant pursuant to section 47 of chapter 123 of the General Laws;
(iii) delay resulting from a trial with respect to other charges against the defendant, which period shall run from the commencement of such other trial until fourteen days after an acquittal or imposition of sentence;
(iv) delay resulting from interlocutory appeals;
(v) delay resulting from hearings on pretrial motions;
(vi) delay resulting from proceedings relating to transfer to or from other divisions or counties pursuant to rule 37;
(vii) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement.
(B) Any period of delay resulting from the absence or unavailability of the defendant or an essential witness. A defendant or an essential witness shall be considered absent when his whereabouts are unknown and he is attempting to avoid apprehension or prosecution or his whereabouts cannot be determined by due diligence. A defendant or an essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.
(C) Any period of delay resulting from the fact that the defendant is mentally incompetent or physically unable to stand trial.
(D) If the complaint or indictment is dismissed by the prosecution and thereafter a charge is filed against the defendant for the same or a related offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge.
(E)A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is no cause for granting a severance.
(F) Any period of delay resulting from a continuance granted by a judge on his own motion or at the request of the defendant or his counsel or at the request of the prosecutor, if the judge granted the continuance on the basis of his findings that the ends of justice served by taking such action outweighed the best interests of the public and the defendant in a speedy trial. No period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subdivision unless the judge sets forth in the record of the case, either orally or in writing, his reasons for finding that the ends of justice served by the granting of the continuance outweigh the best interests of the public and the defendant in a speedy trial.
(G) Any period of time between the day on which a defendant or his counsel and the prosecuting attorney agree in writing that the defendant will plead guilty or nolo contendere to the charges and such time as the judge accepts or rejects the plea arrangement.
(H) Any period of time between the day on which the defendant enters a plea of guilty and such time as an order of the judge permitting the withdrawal of the plea becomes final.
(3) Computation of Time Limits. In computing any time limit other than an excluded period, the day of the act or event which causes a designated period of time to begin to run shall not be included. Computation of an excluded period shall include both the first and the last day of the excludable act or event.
(c) Dismissal for Prejudicial Delay. Notwithstanding the fact that a defendant is not entitled to a dismissal under subdivision (b) of this rule, a defendant shall upon motion be entitled to a dismissal where the judge after an examination and consideration of all attendant circumstances determines that: (1) the conduct of the prosecuting attorney in bringing the defendant to trial has been unreasonably lacking in diligenceand (2) this conduct on the part of the prosecuting attorney has resulted in prejudice to the defendant.
(d) Special Procedures: Persons Serving Term of Imprisonment.

(1) General Provisions. A person serving a term of imprisonment either within or without the prosecuting jurisdiction is entitled to all safeguards afforded him under subdivisions (a), (b), and (c) of this rule in the conduct of any criminal proceeding, subject to the limitations stated herein.
(2) Persons Detained Within the Commonwealth. Any person who is detained within the Commonwealth upon the unexecuted portion of a sentence imposed pursuant to a criminal proceeding is entitled to be tried upon any untried indictment or complaint pending against him in any court in this Commonwealth within the time prescribed by subdivision (b) of this rule.
(3) Persons Detained Outside the Commonwealth. Any person who is detained outside the Commonwealth upon the unexecuted portion of a sentence imposed pursuant to a criminal proceeding, and against whom an untried indictment or complaint is pending within the Commonwealth shall, subsequent to the filing of a detainer, be notified by the prosecutor by mail of such charges and of his right to demand a speedy trial. If the defendant pursuant to such notification does demand trial, the person having custody shall so certify to the prosecutor, who shall promptly seek to obtain the presence of the defendant for trial. If the prosecutor has unreasonably delayed (A) in causing a detainer to be filed with the official having custody of the defendant, or (B) in seeking to obtain the defendant’s presence for trial, and the defendant has been prejudiced thereby, the pending charges against the defendant shall be dismissed.
(e) Effect of a Dismissal. A dismissal of any charge ordered pursuant to any provision of this rule shall apply to all related offenses.
(f) Case Status Reports.

(1) District Court. The First Justice of each division of the District Court shall be advised periodically by the clerk of the status of all cases which have been pending in that court for six months or longer. The report shall be transmitted to the Administrative Justice for the District Court Department.
(2) Superior Court. The Administrative Justice for the Superior Court Department shall be notified by the clerk for each county of the status of all cases which have been pending in that court for six months or longer within the following time periods:

(A) for the first twelve-month period following the effective date of this rule, sixty days after the last day of a sitting;
(B) for the second such twelve-month period, forty-five days after the last day of a sitting;
(C) for the third and all successive such twelve-month periods, thirty days after the last day of a sitting.

Such notice shall include the number of the case, the name of the defendant, the offense charged, the name of defense counsel, if any, and the name of the prosecutor.

Mass. R. Crim. P. 36