Mass. R. Crim. P. 15 & 16; Mass. Gen. Laws ch. 211 s. 3.

1. Relief Before Trial
MASS. R. CRIM. P. 15, 16; Mass. Gen. Laws ch. 211 § 3 (2012)
By Morris Singer

2. Interlocutory Appeal
MASS. R. CRIM. P. 15

3. Interlocutory Appeal
 Appeal of order on a motion to dismiss.
 Commonwealth’s right.
 Appeal to “appropriate appellate court.”
 MASS. R. CRIM. P. 15(a)(1).
 Appeal an order on a motion to suppress evidence.
 Right of either Defendant or Commonwealth.
 Application for leave to appeal.
 Appeal to a single justice of the Supreme Judicial Court.
 MASS. R. CRIM. P. 15(a)(2).

4. Applications for Leave
 Application to single justice of the Supreme Judicial
Court.
 Single justice determines whether “administration of
justice would be facilitated.”
 The single justice may hear the appeal as well, or may
report it to the court.
 No right to a hearing.

5. Contents of application
 The docket number of the trial court case.
 Findings and rulings by the trial court.
 Brief memorandum of law, including explanation of how
administration of justice would be facilitated.
 Estimate of length of trial.
 Scheduled trial date or next scheduled court event.
 When Commonwealth applies: Statement of strength of
case with or without evidence subject to suppression.

6. Rationale
 Commonwealth’s right.
 An adverse pretrial ruling on a motion to dismiss will “preclude
a public trial and . . . entirely terminate the . . . proceedings.”
Burke v. Commonwealth, 373 Mass. 157 (1997).
 An adverse pretrial ruling on a motion to suppress will result
in the irretrievable loss of the right to present legal evidence.
Commonwealth v. Boswell, 374 Mass. 263, 267 (1978).
 Defendant’s right.
 In some circumstances, interlocutory appeal conserves judicial
resources and spares all parties the ordeal of a trial.

7. Procedure
 Commonwealth’s notice of appeal.
 Filed in trial court.
 Filed within thirty days of order.
 Defendant’s application for leave to appeal.
 Filed in SJC for Suffolk County.
 Filed within seven days of order.
 Standing Order Concerning Applications to Single Justice.
 Interlocutory appeal can stop the action, but file a
motion.

8. Appeals by indigent clients
 Defendant’s cost and reasonable attorney fees covered.
 Must file a motion and affidavit of indigence.

9. “Appropriate appellate court”
 N.B.: Commonwealth’s interlocutory appeals by right.
 Superior court case goes to Supreme Judicial Court.
 District court case goes to Appeals Court.
 Juvenile court?

10. Dismissal by the Prosecution
MASS. R. CRIM. P. 16

11. Entry
 Commonwealth files a nolle prosequi.
 Any time prior to pronouncement of sentence.
 Must be in writing, signed by prosecutor, and must include
reasons.

12. Jeopardy
 NP without defendant’s consent at trial = aquittal.
 Commonwealth v. Massod, 350 Mass. 745 (1966) (holding
defendant has right to have issue of guilt adjudicated once
jeopardy attaches).
 Remember to object to the NP to make lack of consent clear.

13. Partial Nulle Prosequi
 Conviction / adjudication for lesser-included offense.
 Partial NP is “preferred practice”.
 See Commonwealth v. Myers, 356 Mass. 343 (1969).
 Same as if prosecutor files motion that defendant be tried
on LIO.
 Agreements between ADA and defense counsel of partial
NP in consideration for plea on LIO = enforceable.
 Commonwealth v. Benton, 356 Mass. 447 (1969).

14. Discretion of the prosecutor
 “Power to enter a nolle prosequi is absolute in the
prosecuting officer from the return of the indictment up
to the beginning of the trial . . . .” Commonwealth v.
Dascalakis, 246 Mass. 12, 18 (1923).
 Does not require leave of court.
 Different from Fed. R. Crim. P. 48(a).
 Dep’t of Revenue v. Sorrentino, 408 Mass. 340 (1990).

15. Collateral consequences
 Trial court did not err in considering juvenile’s prior nolle
prosequi case in imposing sentence because nothing
prohibited a judge from considering a defendant’s entire
record, including dismissals, for sentencing.
 Commonwealth v. Keon K., 70 Mass. App. Ct. 568 (2007).

16. Superintendence of Inferior Courts
Mass. Gen. Laws ch. 211 § 3 (2012)

17. Last resort
 “The supreme judicial court shall have general
superintendence of all courts of inferior jurisdiction to
correct and prevent errors and abuses therein if no
other remedy is expressly provided . . . .”
 Only in exceptional circumstances.
 Not substitute for normal appellate review.
 May not get a hearing; can be decided on the papers.

18. Standard
 Substantial claim of violation of his substantive right, AND
 Irremediable error such that defendant cannot be placed
in status quo in regular course.

19. Interlocutory and post-conviction
 Interlocutory: only in the most exceptional
circumstances.
 Post-conviction: no 211 § 3 right, when defendant could
have made post-conviction motion for new trial.

20. Evidentiary issues
 Not generally.
 Evidentiary rulings = discretion of trial court.
 Newly-discovered evidence = motion for new trial.
 But some exceptions.

21. Review of 211 § 3 denial
 Abuse of discretion or clearly erroneous.