Brief for Appellee — Ludwig v. Massachusetts

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: In the E wicraet none P.. CLE

Supreme Court of the United States.

OcroBer Term, 1975.

: No. 75-377.

RICHARD I. LUDWIG,

APPELLANT,

CO" {MONWEALTH OF MASSACHUSETTS,

APPELLEE.

ON APPEAL FROM THE SUPREME JUDICIAL COURT

OF MASSACHUSETTS.

Brief for the Appellee Commonwealth of Massachusetts.

Paancis X. BELLOTTI,

Attorney General,

JouHN J. Irwin, Jr.,

Assistant Attorney General,

Chief, Criminal Bureau,

Barpara A. H. Smirn,

Assistant Attorney General,

One Ashburton Place,

Boston, Massachusetts 02108.

BATEMAN & SLADE, INC., BOSTON, MASSACHUSETTS.

Table of Contents.

I. Opinion below

Il. Jurisdictional statement

III. Constitutional and statutory citations

IV. Questions presented

V. Statement of the case

VI. Summary of argument

VII. Argument

The Massachusetts criminal jury procedure ade-

quately complies with the Fourteenth Amend-

ment requirement that an accused be afforded

the right to trial by jury in state criminal pro-

ceedings

A. The Massachusetts procedure provides jury

trial in a “basic and fundamental” mode

1. The colonial-constitutional experience

2. Contemporary state practice

B. The Massachusetts jury procedure effects

this Court’s enunciation of the purpose and

function of jury trial in America

C. The Massachusetts criminal jury procedure

complies with the Fourteenth Amendment's

ban against “double jeopardy”

VIII. Conclusion

IX. Appendix A

na ut. & WO Yo ~—

RES

il TABLE OF AUTHORITIES CITED.

Table of Authorities Cited.

CASES.

Apodaca v. Oregon, 406 U.S. 404 (1972) 6, 8n,

21, 27, 28

Baldwin v. New York, 399 U.S. 66 (1970) 21, 28n

Benton v. Marvland, 395 U.S. 784 (1969) 31

Breed v. Jones, 421 U.S. 519 (1975) 30

Brown v. Epps. 91 Va. 726 (1895) 20n

Cableton v. State, 243 Ark. 351 (1967) 22n

Callan v. Wilson, 127 U.S. 540 (1888) 5, 8, 20n,

23n, 28n, 29n

Colten v. Kentucky, 407 U.S. 104 (1972) 6, 7, 21,

30n, 32, 33

Commonwealth v. Bass, 113 Va. 760 (1912) 23n

Commonwealth v. Ludwig, Mass. (1975), Mass.

Adv. Sh. (1975) 1994, 330 N.E. 2d 467 1, 3n

Commonwealth v. Twombly, Boston Municipal Court

1830, Thatcher's Criminal Case 225 (1845) l4n

Dombrowski v. Pfister, 380 U.S. 479 (1965) 29n

Duncan v. Louisiana, 391 U.S. 145 (1968) 5, 6, 7, 8,

9, 10, 11 et seq.

Ellis v. Dyson, 421 U.S. 426 (1975) 3

Emerick v. Harris, 1 Binney, 416 (1808) 19n

Gideon v. Wainwright, 372 U.S. 335 (1963) lln

Goddard v. State, 12 Conn. 448 (1838) 18

TABLE OF AUTHORITIES CITED. ili

Griffin v. California, 380 U.S. 609 (1965) lln

Herbert v. Louisiana, 272 U.S. 312 (1926) 10n

Johnson v. Louisiana, 406 U.S. 356 (1972) 8n

Johnson's Case, 1 Me. 230 (1821) 18

Jones v. Robbins, 8 Gray, 329 (1857) 3n, 9n, 13

Klopfer v. North Carolina, 386 U.S. 213 (1967) lin

Lemieux v. Robbins, 414 F. 2d 353 (1st Cir. 1969) 28n,

29n, 30

Leonard v. State, 43 Ala. App. 454 (1966) 22n

Lincoln v. Smith, 27 Vt. 328 (1855) 18

Lord v. Veazie, 49 U.S. (8 How.) 251 (1850) 3

Lovell v. Griffin, 303 U.S. 444 (1938) 2

Mann v. Commonwealth, 359 Mass. 661 (1971) 30

Manns v. Commonwealth, 213 Va. 233 (1972) 28n

Manns v. Koontz, 451 F. 2d 1344 (4th Cir. 1971) 29n

Mapp v. Ohio, 367 U.S. 643 (1961) ln

North Carolina v. Pearce, 395 U.S. 711 (1969) 6, 21,

28n, 31, 32

North Carolina v. Rice, 404 U.S. 244 (1971) 2

In re Oliver, 333 U.S. 257 (1948) lln

Opinion of the Justices, 41 N.H. 550 (1860) 16

Palko v. Connecticut, 302 U.S. 319 (1937) 10

Pointer v. Texas, 380 U.S. 400 (1965) lln

Richardson v. Ramirez, 418 U.S. 24 (1974) 2

Robinson v. California, 370 U.S. 660 (1962) lln

Singer v. United States, 380 U.S. 24 (1965) 26

State v.

TABLE OF AUTHORITIES CITED.

Despres, 107 N.H. 297 (1966)

Gerry, 68 N.H. 495 (1896)

Griffin, 66 N.H. 326 (1890)

Halliday, 109 R.1. 93 (1971)

Jackson, 69 N.H. 511 (1898)

Nichols, 27 R.I. 69 (1905)

Parker, 213 Kan. 229 (1973)

Peterson, 41 Vt. 504 (1869)

Powell, 86 N.C. 640 (1882)

Ray, 63 N.H. 406 (1885)

Ring, 106 N.H. 509 (1965)

Sklar, 317 A. 2d 160 (Me. 1974)

Sparrow, 276 N.C. 499 (1970)

Tavlor v. Louisiana, 419 U.S. 522 (1975)

Ward v. Village of Monroeville, 409 U.S. 57 (1972)

Washington v. Texas, 388 U.S. 14 (1967)

Whitmarsh v. Commonwealth, Mass.

Mass.

Adv. Sh. (1974) 1403

Williams v. Florida, 399 U.S. 78 (1970)

Wilmarth v. King, 74 N.H. 512 (1908)

Younger v. Harris, 401 U.S. 37 (1971)

15, 16, 17,

23n, 24n

lln

(1974),

3n, 8n, 13

6, 21, 26,

27, 28

16, 17

29n

TABLE OF AUTHORITIES CITED. v

CONSTITUTIONAL PROVISIONS.

United States Constitution

Article III 2, 3, 8

§ 2 20n

Fifth Amendment 2, 4, 6,

7, 10, 31

Sixth Amendment 2, 8, 10, 20n

Fourteenth Amendment 2, 3, 4, 5,

6, 7, 10 et seq.

Alabama Constitution, Article I, §§ 6, 11 (1901) 22n

Massachusetts Constitution, Article XII 3

New Hampshire Constitution, Bill of Rights, Article XV 16

STATUTES.

28 U.S.C.

§ 1257 3

§ 1257(2) 2

§ 2283 29n

Alabama:

Ala. Code Ann. tit. 13

§ 321 22n

§ 326 22n

v1 TABLE OF AUTHORITIES CITED.

Anizona:

Ariz. Rev. Stat.

§ 22-30]

§§ 22-371 — 22-374

Arkansas:

Ark. Stat.

§ 44-509

Delaware:

Laws of the Government of New Castle, Kent and

Suffolk upon Delaware 1700-1749 (Franklin and

Hall. eds. 1752) 20n,

Laws of the Government of New Castle, Kent and

Suffolk upon Delaware 1753-1762 (Adams, ed. 1763)

Kansas:

Kan. Stat. Ann.

Acts of 1975. c. 179

Massachusetts:

Mass. G.L. c. 90, § 24(2)(a)

Mass. G.L. c. 218

: 26

27 (1958)

27A

i GF

Mass. G.L.

§ 18

§ 18A

Mass. G.L.

Mass. Stat.

Rev. Mass.

Mass. Stat.

Mass. Gen.

Mass. Pub.

Mass. Stat.

Mass. Rev.

Mass. Stat.

TABLE OF AUTHORITIES CITED.

265. § 13A

266, §§ 30, 60

267, § 7

. 278

ef e

c. 279, § 23

(1783) c. 51, § 3

(1831) c. 70, § 1

Stat. (1836) c. 85, § 28

Stat. (1836) c. 87, § 36

Stat. (1836) c. 138, § 1

(1845) c. 166, § 2

(1849) c. 31

Stat. (1860) c. 116, § 32

Stat. (1860) c. 173, §§ 1, 4

Stat. (1882) c. 154, § 39

Stat. (1882) c. 155, §§ 58, 61

(1893) c. 396, § 47

(1894) c. 431

(1897) c. 490. § 3

Laws (1902) c. 219, § 22

(1905) c. 319

(1913) c. 652

(1929) c. 216, § 4

Acts and Resolves of 1721-22, c. 2

vii

Vill TABLE OF AUTHORITIES CITED.

Acts and Resolves of 1724-25. ¢. 4

Acts and Resolves of 1736-37, c. 18

Acts and Resolves of 1741-42, c. 15

Acts and Resolves of 1742-43, c.

Acts and Resolves of 1749-50,

Acts and Resolves of 1750-51,

Acts and Resolves of 1775-76,

Acts and Resolves of 1776-77,

Acts and Resolves of 1779-80,

Laws and Resoives of 1783, c. 51

Laws and Resolves of 1794, c. 26

New Hampshire:

N.H. Rev. Stat.

§ 502:18

§ 502A:11, 12

N.H. Laws, 63, 64, 65 (1780)

N.H. Laws, c. 45, §§ 3, 4 (1828)

North Carolina:

N.C. Gen. Stat.

§ 7A-196

§ 7A-271

§ 7A-272

Pennsylvania:

Pa. Code tit. 19, Pa. R. Crim. P. 67(e)

Pa. Code tit. 234, Rules 51, 67, 6001, 6006, 6010

Act of August 21, 1719, 3 Statutes at Large 229

229920 24

f 2 2 eee

TABLE OF AUTHORITIES CITED.

Act of February 24, 1721, 3 Statutes at Large 246

Act of August 15, 1730, 4 Statutes at Large 194

Act of February 21, 1736, 4 Statutes at Large 291

Act of October 4, 1788, 13 Statutes at Large 160

Act of April 22, 1794, 15 Statutes at Large 110

Rhode Island:

Acts and Laws, 1663-1767 (1767)

Virginia:

Va. Code Ann. §§ 16.1-123, -124, -125, -132, -136

Act of March 20, 1629, 1 Hening’s Statutes at Large 132

Act of March 1, 1631, 1 Hening’s, Statutes at Large 168

Act of June, 1642, 1 Hening’s Statutes at Large 273

Act of November 20, 1645, 1 Hening’s Statutes at Large

303

Act of March 13, 1658, 1 Hening’s Statutes at Large 435

Acts of March 23, 1661, 2 Hening’s Statutes at Large

41, 61, 72

Vermont:

Act Regulating Juries and Jurors, 22 Feb. 1779, XII

Laws of Vermont 1777-1780 (Soule, ed. 1964)

Act Regulating Fees, 3 Nov. 1780, XII Laws of Ver-

mont 1777-1780 (Soule, ed. 1964)

Act of June 21, 1782, XIII Laws of Vermont 1781-1784

(Williams, ed. 1965)

19n

23n

19n

24n

x TABLE OF AUTHORITIES CITED.

MISCELLANEOUS.

The Book of the General Laws and Libertyes Con-

cerning the Inhabitants of Massachusetts, Published

in Cambridge According to an Order of the General

Court (1660) 12, 14n

Colonial Records of Connecticut 1689-1706 18

Frankfurter and Corcoran, Petty Federal Offenses and

the Constitution Guarantee of Trial by Jury, 39

Harv. L. Rev. 917 (1926) 13

Seventeenth Annual Report to the Justices of the

Supreme Judicial Court (1973) 24n

In the

Supreme Court of the United States.

Octroser Term, 1975.

No. 75-377.

RICHARD I. LUDWIG,

APPELLANT,

COMMONWEALTH OF MASSACHUSETTS,

APPELLEE.

ON APPEAL FROM THE SUPREME JUDICIAL COURT

OF MASSACHUSETTS.

Brief for the Appellee Commonwealth of Massachusetts.

I. Opinion Below.

The opinion of the Supreme Judicial Court is reported at

Mass. Adv. Sh. (1975) 1994, 330 N.E. 2d 467 (1975).

II. Jurisdictional Statement.

The jurisdiction of this Court has been invoked pursuant to

28 U.S.C. § 1257(2). The appellant challenges the constitu-

tionality of Massachusetts’ two-tier or trial de novo criminal

procedure, specifically arguing that the system has deprived

him of his Fifth, Sixth and Fourteenth Amendment rights to a

jury trial. This court noted probable jurisdiction on Novem-

ber 11, 1975. Subsequent to the filing of appellee's motion to

dismiss for want of a substantial federal question, counsel for

appellee became aware of the fact that appellant, Ludwig,

had waived his right to jury trial in the Norfolk County

six-man jury session (App. 1). Appellee concedes that this fact

was not argued in the court below nor was it previously

brought to the attention of this Court. However, since this

fact may affect the existence or nonexistence of a controversy

and thus the jurisdiction of this Court, the Commonwealth

suggests that it is its duty to bring it to the Court's attention.

Although the Supreme Judicial Court has heard this case on

the merits, this Court is not boum/! by the state court’s deter-

mination of jurisdiction. Richardson v. Ramirez, 418 U.S. 24

(1974). For this Court is bound by the Article III case or

controversy requirement of the federal Constitution, while the

state courts are not. North Carolina v. Rice, 404 U.S. 244,

246 (1971). Therefore, whether a question was adequately

presented and decided in the state court is itself a federal

question to be determined by this Court. Lovell v. Griffin,

303 U.S. 444, 450 (1938).

Appellee suggests that appellant’s waiver of jury trial pre-

sents this case to the Court in a most unusual posture. Appel-

lant argues that he has been denied his right to jury trial, yet,

when jury trial was made available to him, he waived it.

Appellee suggests that this waiver of jury trial leaves the

appellant without standing to raise the jury trial issue and

indicates that the appellant has no personal interest in receiv-

ing a jury trial, thus raising a serious question as to whether

this case comes before this Court as a result of the appellant's

interest in the case or as a result of the attorney's interest in

obtaining an advisory opinion of this Court as to the constitu-

tionality of the two-tier system.’

While this case does not involve an element of collusion as

was present in Lord v. Veazie, 49 U.S. (8 How.) 251, 255

(1850), appellee suggests that the controversy over the trial de

novo system is more “feigned” than actual insofar as the

appellant is concerned. Appellee suggests that this Court’s

admonition in Ellis v. Dyson, 421 U.S. 426, 434 (1975), is

appropriate. In Ellis the Court indicated that, in order to

demonstrate a case or controversy, an actual controversy be-

tween the parties must exist — counsel's interest alone in an

advisory opinion is not sufficient to satisfy the Article III

requirement.

Therefore, appellee suggests that this Court reexamine its

grant of jurisdiction in this case.

III. Constitutional and Statutory Citations.

The constitutional provisions and statutes involved in this

case are the following:

Fourteenth Amendment of the United States Consti-

tution, Section I;

Article XII, Constitution of Massachusetts;

Title 28, United States Code, Section 1257;

‘See Commonwealth v. Ludwig, Mass. (1975) (Mass. Adv. Sh.

[1975] 1974); Whitmarsh v. Commonwealth, Mass. fn. 4 (1974)

(Mass. Adv. Sh. [1974] 1403, 1408-1409 fn. 4) for a listing of such cases.

Massachusetts General Laws, Chapter 218, Section 27A;

Massachusetts General Laws, Chapter 278, Section 18;

and,

Massachusetts General Laws, Chapter 278, Section 18A.

Each is set forth in Appendix A, infra.

IV. Questions Presented.

1. Whether the Massachusetts two-tier criminal jury

procedure complies with the Fourteenth Amendment require-

ment that a state afford to an accused the right to a trial by

jury.

2. Whether the Massachusetts two-tier criminal jury pro-

cedure violates the defendant's right not to be twice put in

jeopardy as guaranteed by the Fifth Amendment of the United

States Constitution.

V. Statement of the Case.

Appellant Richard I. Ludwig was complained of in the

District Court of Northern Norfolk in the County of Norfolk

on February 1. 1974, for violation of Mass. G.L. c. 90, §

24(2)(a), commonly referred to as “driving to endanger.”

(App. 3a.) On that date the appellant (defendant) pleaded

not guilty and the case was continued until February 25, 1974.

(App. la.) After a further continuance appellant filed a

motion for jury trial (App. la) which was denied and the

appellant was found guilty and fined $20 on March 11, 1974.

(App. la.) On that date the appellant “appealed” to the Dis-

trict Court of Northern Norfolk six-man jury. (App. la.) The

appellant filed a motion to dismiss in the District Court of

Northern Norfolk six-man jury alleging that his District Court

conviction was void for being in contravention of the Constitu-

tion of the United States. (App. 5a-6a.) The motion was

denied on April 5, 1974. (App. la.) The appellant then

waived his right to jury trial and was found guilty; payment

of a $20 fine was stayed. (App. la.) The appellant then

appealed to the Supreme Judicial Court of the Commonwealth

by way of a bill of exceptions. (App. 9a-l10a.) The excep-

tions were overruled on June 12, 1975. (App. lla.)

On September 10, 1975, appellant filed an appeal to the

United States Supreme Court from the order of the Supreme

Judicial Court. This Court noted probable jurisdiction on

November 11, 1975.

VI. Summary of Argument.

1. The right of jury trial in criminal cases is a fundamental

right, guaranteed to defendants in state courts by virtue of the

Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145

(1968). However, Duncan did not make the rule of Callan v.

Wilson, 127 U.S. 540 (1888), applicable to the states; that is,

first-instance-every-instance jury trial is not mandatory in all

state criminal proceedings. Duncan enunciated a right, with-

out definitively establishing the mode in which the right is to

be afforded state defendants, and the Massachusetts mode of

criminal jury trial procedure complies with the Duncan re-

quirement because it is a basic and fundamental mode; that is,

a mode which has its roots clearly within the Anglo-Ameri-

can regime of ordered liberty in a constitutional-historical

sense. The Massachusetts mode is clearly basic and funda-

mental because it antedated, and remained viable during, the

colonial-constitutional period. Additionally, several states,

including New Hampshire, Vermont, Connecticut, Rhode

Island and Maine (as a District) employed a similar trial de

novo procedure during the same period as a means of furnish-

ing jury trial to defendants within their jurisdictions. Finally,

the Massachusetts procedure is comparable to contemporary

developing jury procedures in several states, and this Court has

considered contemporary state practice as a principle of Four-

teenth Amendment application.

2. This Court in the cases of Duncan v. Louisiana, supra,

Williams v. Florida, 399 U.S. 78 (1970), and Apodaca v.

Oregon, 406 U.S. 404 (1972), analyzed certain traditional

aspects of the jury-trial right with respect to the function and

purpose of a jury in American jurisprudence. Appellee sug-

gests that the primary purpose of the jury is to prevent govern-

mental oppression by the interposition of the commonsense

judgment of laypersons between an accused and his accuser,

and by effecting community participation in the process of

adjudication of guilt or innocence of an accused. Appellee

further suggests that an accused in Massachusetts has an ab-

solute right to a jury, regardless of the “petty nature” of his

offense, and that the de novo procedure, though possibly

inconvenient to some, is beneficial to the large majority of

defendants and contraindicates a suggestion of governmental

oppression. The Massachusetts jury procedure fulfills the

purpose and function of criminal jury trial in America.

3. The appellant's alternative contention with respect to

the Double Jeopardy Clause is controlled by this Court's de-

cisions in North Carolina v. Pearce, 395 U.S. 711 (1969), and

Colten v. Kentucky, 407 U.S. 104 (1972). In Massachusetts,

as was the case in Kentucky, a defendant in a criminal trial

“appeals” to the second level of the two-tier system to receive a

trial “in the criminal courts of general jurisdiction where the

full range of constitutional guarantees is available.” Colten v.

Kentucky, 407 U.S. at 114. In Massachusetts, as was the case

in Kentucky, the right to the second tier is absolute, and, at

the defendant's behest, the lower court proceedings are “ wiped

out” entirely. On the basis of this Court’s previous decisions,

Massachusetts suggests that its de novo trial procedure does

not violate the Double Jeopardy Clause.

VII. Argument.

THE MASSACHUSETTS CRIMINAL JURY PROCEDURE ADEQUATELY

COMPLIES WITH THE FOURTEENTH AMENDMENT REQUIREMENT

THAT AN ACCUSED BE AFFORDED THE RIGHT TO TRIAL BY JURY

IN STATE CRIMINAL PROCEEDINGS.

A. The Massachusetts Procedure Provides Jury Trial in a

“Basic and Fundamental” Mode.

In Duncan v. Louisiana, 391 U.S. 145 (1968), this Court, in

examining a state’s procedure which dispensed entirely with a

jury trial in serious criminal cases,* stated the following:

. . . Because we believe that trial by jury in criminal cases

is fundamental to the American scheme of justice, we

hold that the Fourteenth Amendment guarantees a right

of jury trial in all criminal cases which — were they to be

tried in a federal court — would come within the Sixth

Amendment's guarantee. (Footnote omitted.) 391 U.S.

at 149.

* “None of these cases [Maxwell v. Dow, 176 U.S. 581 (1900); Palko v.

Connecticut, 302 U.S. 319 (1937); and Snyder v. Massachusetts, 291 U.S.

97 (1934)], however, dealt with a State which had purported to dispense

entirely with a jury trial in serious criminal cases.” 39] U.S. at 154-55.

(Italics added. )

The Commonwealth of Massachusetts suggests, at the outset,

that Duncan did not establish a requirement that state jury

procedures conform to all previous decisions of this Court in-

terpreting the right to jury trial guaranteed to defendants in

criminal cases in federal courts by Article III of the United

States Constitution and by the Sixth Amendment.’ This argu-

ment is written upon that understanding and assumption, with

the proviso that, if this Court is to hold that Duncan requires

the states to conform to the cases that determine federal jury-

trial right, then the doctrine of Callan v. Wilson, 127 U.S.

540 (1888), should be reassessed.‘ In brief, appellee argues

that Duncan secured a right, without defining precisely the

mode in which it shall be enjoyed.*

' The appellee recognizes that its position is not free from contrary inter-

pretation and suggests that the Massachusetts Supreme Judicial Court has

reviewed the alternatives and that the same are contained in succinct and

fair summary in the case of Whitmarsh v. Commonwealth, supra, at 1412-

16. We concur with the views of Mr. Justice Powell as expressed in his

concurring opinion in Johnson v. Louisiana, and Apodaca v. Oregon, 406

U.S. 356, 369-77 (1972), wherein he stated:

But it is the Fourteenth Amendment, rather than the Sixth, that

imposes upon the States the requirement that they provide jury trials

to thase accused of serious crimes. This Court has said, in cases de-

cided when the intendment of that Amendment was not as clouded by

the passage of time, that due process does not require that the States

apply the federal jury-trial right with all its gloss. Id. at 371.

*. . . It seems very unlikely to us that our decision today will require

widespread changes in state criminal processes. First, our decisions

interpreting the Sixth Amendment are always subject to reconsideration,

a fact amply demonstrated by the instant decision... . 391 U.S. at

158-59, n. 30.

* In Jones v. Robbins, 8 Gray, 329 (1857), in which the principle question

involved was whether a person could be sentenced to state prison without a

grand jurv indictment. the Supreme Judicial Court said:

Appellee suggests that the conclusion of Duncan seems to

derive from an examination and application of criteria which

had previously served as the basis for this Court's determina-

The last clause, which seems to have been added for greater caution,

prohibiting the legislature from making any law which shall subject any

person to a “capital” or “infamous punishment,” excepting for the

government of the army and navy, without trial by jury, is somewhat

more explicit than the preceding clause, “judgment by his peers,” and

may be equivalent to the clause in the sixth article of amendment of the

Constitution of the United States, declaring that, “in all criminal prose-

cutions, the accused shall enjoy the right to a speedy and public trial,

by an impartial jury.” We believe it has been so practically under-

stood; and where, by the terms of any law, a justice of the peace or

police court has been authorized to hear and pass sentence, it has al-

ways been accompanied by a right of appeal. And we believe it has

been generally understood and practised here and in Maine, and per-

haps in other states having a similar provision, that as the object of the

clause is to secure a benefit to the accused, which he may avail himself

of or waive, at his own election; and as the purpose of the provision is

to secure the right, without directing the mode in which it shall be

enjoyed; it is not violated by an act of legislation, which authorizes a

single magistrate to try and pass sentence, provided the act contains a

provision that the party shall have an unqualified and unfettered right

of appeal, and a trial by jury in the appellate court, subject only to

the common liability to give bail, or to be committed to jail, to ensure

his appearance and to abide the judgment of the court appealed to.

this is a necessary inconvenience, as is also the delay of the trial till

the sitting of such court they are the same and no greater than they

would be in case the magistrate, instead of passing sentence, should,

on examination, bind the accused over, or, as the necessary alternative,

commit him to jail. Such seems to have been the construction of a

similar provision in other states. Emerick v. Harris, 1 Binn. 416.

Murphy v. People, 2 Cow. 815. Jackson v. Wood, 2 Conn. 819.

Beers v. Beers, 4 Conn. 535. Sullivan v. Adams, 3 Gray 477. It

appears to us, therefore, that such a provision is not void, as a violation

of that clause, which, in criminal cases, secures to the accused a right

of trial by jury. Id. at 341-42.

tion that various rights extended by the Fifth and Sixth

Amendments with respect to federal criminal proceedings were

also to be protected against state action by the Fourteenth

Amendment. 391 U.S. at 147-49. Specifically, the Court

revisited earlier “Fourteenth Amendment” decisions, and said:

. . . {The question] has been phrased in a variety of ways

in the opinions of this Court. The question has been

asked whether a right is among those “ ‘fundamental

principles of liberty and justice which lie at the base of

all our civil and political institutions,” Powell v. Ala-

bama, 287 U.S. 45, 67 (1932);° whether it is “basic in

our system of jurisprudence,” In re Oliver, 333 U.S. 257,

273 (1948); and whether it is “a fundamental right, essen-

tial to a fair trial,” Gideon v. Wainwright, 372 U.S. 335,

343-344 (1963); Malloy v. Hogan, 378 U.S. 1, 6 (1964);

Pointer v. Texas, 380 U.S. 400, 403 (1965)... .

391 U.S. at 148-49.

The Court noted that recent cases had varied from the

“essence of a scheme of ordered liberty” test (Palko v. Con-

necticut, 302 U.S. 319, 325 (1937)), and

. . . proceeded upon the valid assumption that state crim-

inal processes are not imaginary and theoretical schemes

but actual systems bearing virtually every characteristic

of the common-law system that has been developing

contemporaneously in England and in this country. The

question thus is whether given this kind of system a

particular procedure is fundamental — whether, that is,

* Quoting from Herbert v. Louisiana. 272 U.S. 312, 316 (1926).

a procedure is necessary to an Anglo-American regime

of ordered liberty. . . .’

391 U.S. at 149-50 n. 14, and further,

. . . Of each of these determinations [*] that a con-

stitutional provision originally written to bind the Federal

Government should bind the States as well it might be

said that the limitation in question is not necessarily

fundamental to fairness in every criminal system that

might be imagined but is fundamental in the context

of the criminal processes maintained by the American

States. Ibid.

Appellee suggests that the Court then, in Duncan, based

upon this initial definition of “fundamental,” further refined

the “Fourteenth Amendment” application criteria in terms of

(1) historical analysis of jury trial in criminal cases and (2)

contemporary practices among the states.’ Appellee now

’ The Court referenced to the following cases: Mapp v. Ohio, 367 U.S.

643 (1961); Griffin v. California, 380 U.S. 609 (1965); Robinson v. Cali-

fornia, 370 U.S. 660 (1962); Gideon v. Wainwright, 372 U.S. 335 (1963);

Klopfer v. North Carolina, 386 U.S. 213 (1967); In re Oliver, 333 U.S. 257

(1948); Pointer v. Texas, 380 U.S. 400 (1965); and Washington v. Texas,

388 U.S. 14 (1967).

* Cases in footnote 7, supra.

* The Court reviewed the history of trial by jury in criminal cases by

reference to historical treatises and legislative history of the debates and

amendments surrounding various federal provisions, and indicated, as well,

that the constitutions adopted by the original states were examined. 391

U.S. at 151-53. The Court also referenced contemporary state law with

respect to the right to jury trial in serious criminal cases. 391 U.S. at 154.

argues and suggests to this Court that the criteria of Four-

teenth Amendment application may be equally relevant for

Fourteenth Amendment justification, and that the Massachu-

setts jury procedure is, itself, a basic and fundamental pro-

cedure which has its roots clearly within the Anglo-American

regime of ordered liberty in a constitutional-historical sense, as

well as in the light of contemporary developing jury pro-

cedures of several American States. In brief, if the Four-

teenth Amendment requires that a limitation be imposed, or a

procedure be secured, upon these criteria, Massachusetts

suggests that its existing procedure can be justified as adequate

by the same criteria, providing a basic and fundamental right

in a basic and fundamental mode.

1. The Colonial-Constitutional Experience.

The Massachusetts practice of affording criminal defendants

a jury trial after preliminary adjudication by a judge (or

magistrate) acting alone was first codified in 1647 when the

General Court enacted a provision affording all persons the

“libertye” of an:

Appeal from the sentence of one magistrate . . . and if

the point of appeal be in matter of law then to be deter-

mined by the bench; if in matter of fact by the bench and

jury.

Tut Book or THE GENERAL Laws AND LiBeRTYES CONCERNING

THE INHABITANTS OF MASSACHUSETTS, PUBLISHED IN CAMBRIDGE

ACCORDING TO AN ORDER OF THE GENERAL Court 2 (1660). Our

research of legislation enacted since 1647 discloses that this

provision has never been repealed and that the trial de novo

procedure, with some modification, has continued in use from

that date to the present.'® See Whitmarsh v. Common-

wealth, Mass. Adv. Sh. (1974) at 1411; Jones v. Robbins, 8

Gray, 329, 341 (1857). The right of “appeal” was clearly not

an unfettered one in colonial practice and has been the subject

of critical commentary. Frankfurter and Corcoran, Petty

Federal Offenses and the Constitutional Guarantee of Trial by

Jury, 39 Harv. L. Rev. 917, 938-44 (1926)."'

The exact parameters of the procedure in early practice as

regards magistrates’ subject-matter jurisdiction and limitations

upon the punishments that might be imposed are elusive and,

in some respects, difficult to establish categorically in modern

terms due to the fragmented approach of early legislators in

codifying the criminal law and incommensurabilities arising

§ 28, c. 87, § 36, c. 138, § 1 (1836), Rev. Mass. Stat.; c. 166, § 2 (1845),

Mass. Stat.; c. 31 (1849), Mass. Stat.; c. 116, § 32, and c. 173, §§ 1, 4

(1860), Mass. Gen. Stat.; c. 154, § 39, and c. 155, §§ 58, 61 (1882), Mass.

Pub. Stat.; c. 396, § 47 (1893), Mass. Stat.; c. 431 (1894), Mass. Stat.; c.

490, § 3 (1897), Mass. Stat.; c. 219, § 22 (1902), Mass. Rev. Laws; c. 319

(1905), Mass. Stat.; c. 652 (1913), Mass. Stat.; and c. 216, § 4 (1929), Mass.

Stat.

'' However, we suggest that the authors’ research does not seem to include

the historical fact that many of the impediments to an actual exercise of

the jury-trial right had been eliminated during the colonial period and prior

to the framing of the Massachusetts and Federal Constitutions. See, e.g., c.

4, Acts and Resolves of 1724-25 (permitting amendment to the appeal so as

to preclude dismissal on technical grounds); c. 15, Acts and Resolves of 1741-

42 (eliminating requirement that a writing containing the reasons of appeal

be filed or produced). The latter provision reduced costs based upon the

number of pages filed. See c. 23, Acts and Resolves of 1775-1776. Also,

appellee has calculated that forty of the fifty-nine shillings were for jurors

fees and that these fees need not have been advances, nor would have been

assessable against the defendant, in the event of an acquittal. In general,

see preambles to these ameliorative acts for reflection of a legislative concern

that the appeal right be unfettered.

from social, economic, and technological change. However,

after a review of the legislation of the colonial and constitu-

tional periods, it appears fair to state that, at least with

respect to the core offenses against the public order and peace,

against property, and against persons, the matters entrusted to

the trial de novo procedure then, and those entrusted to the

procedure now, are quite comparable. For example, during

the colonial and constitutional experience, justices of the

peace, sitting outside the General Sessions of the Peace, were

authorized to proceed to a preliminary adjudication in cases

where the offense was: participation in a riotous or tumultuous

assembly where a building was torn down;'* a liquor law

violation;'* an assault and battery not of a “high and aggra-

vated nature”;'* receiving stolen government property;'* or a

petty larceny or offense of similar degree.'*

‘* Chapter 17, Acts and Resolves of 1750-51 (maximum punishment:

whipping, one year imprisonment in the county house of corrections at hard

labor, and another public whipping every three months during the term of

imprisonment); c. 26, Laws and Resolves of 1794 (re-enactment with some

modification). See Commonwealth v. Twombly, Boston Municipal Court

1830, reported in Thatcher's Criminal Cases 225 (1845) (Thatcher, J., re-

viewing common-law and legislative history of the offense.)

‘* Chapter 6, Acts and Resolves of 1742-43 (maximum fine, twenty pounds

sterling).

‘* Chapter 51, Laws and Resolves of 1783.

'S Chapter 36, Acts and Resolves -of 1776-77 (maximum fine: three times

value of property stolen).

‘* THe Book oF THE Generar Laws AND LIBERTYES OF THE INHABITANTS OF

MASSACHUSETTS, supra, at 7 (maximum punishment in 1660: whipping and

fine of up to forty shillings; but, by the end of the constitutional period, the

maximum fine had been increased to twelve hundred eighty shillings.

Chapter 37, Acts and Resolves of 1779-80).

Today, the district and municipal courts of Massachusetts.

the successor courts to the General Sessions of the Peace.

continue to have jurisdiction over these offenses which still are

among those that mark the jurisdictional limits of the authority

of these courts. See Mass. G.L. c. 218, § 26; c. 267, § 7:

c. 265, § 13A; c. 266, §§ 30, 60.

The New Hampshire two-tier jury procedure has been

traced by that state’s Supreme Court to a 1646 law of the

Massachusetts Colony, State v. Jackson, 69 N.H. 511 (1898),

although it is clear that the New Hampshire practice enjoys a

history separate and apart from the Massachusetts law:

. . . In 1679, immediately after Charles II discontinued

the jurisdiction of Massachusetts in the New Hampshire

territory, the general assembly of the Province of New

Hampshire enacted, “That Any one of the Council [that

is, the council provided for by the King’s Commission

to President Cutt] may hear & determine such smaller

Thefts & pilferings, as exceed not the damage or fine of

fforty shillings; or penalty of Stocking or Whipping, not

exceeding Ten stripes; or only legal admonition, as he shal

see cause; Saving liberty of Appeal to the Delinquent.”

1 Laws, ed. of Batchellor, editor and compiler of Early

Province and State Papers, p. 17, s. 7. By another en-

actment this jurisdiction was extended to all criminal cases

Our research has disclosed that long-term imprisonment was rarely im-

posed in colonial Massachusetts. The one exception appears to be the three-

year term authorized for mailing a threatening letter to extort. Chapter 7,

Acts and Resolves 1749-50. Otherwise, excepting for the imposition of

heavier fines, the penalty of next severity (outside of the jurisdiction of a

justice of the peace) appears to have been the death penalty. See, e.g.. c.

2, Acts and Resolves of 1721-22 (death penalty for second offense of trading

with the Indians); and c. 18, Acts and Resolves 1736-37 (death penalty for

third offense of theft).

in which the punishment did not exceed that above men-

tioned. Ib., p. 22. s. 24.

69 N.H. at 514.

Several decisions of the New Hampshire court seem to best

describe the office of the justice of the peace in New Hamp-

shire, the criminal jurisdiction of the justices at the time of the

formation of the New Hampshire Constitution in 1784, and

the modification of the jurisdiction of the justices during the

period following the revolution. See Opinion of the Justices,

41 N.H. 550 (1860); State v. Ray, 63 N.H. 406 (1885); State

v. Griffin. 66 N.H. 326 (1890); State v. Gerry, 68 N.H. 495

(1896); State v. Jackson, supra; Wilmarth v. King, 74 N.H.

512 (1908); State v. Ring, 106 N.H. 509 (1965); State v.

Despres, 107 N.H. 297 (1966). And, although the cases have

concerned, in large measure, the scope of jurisdictional au-

thority which may be delegated to the municipal or district

court in view of Article XV of the Bill of Rights of the New

Hampshire Conscitution,'’ it seems fair to say that the New

Hampshire court has never questioned the historical precedent

of two-tier criminal adjudication, “ provided the right to a trial

hy jury, such as the constitution intends, is secured to every

one in the last resort . . . ,” Opinion of the Justices, 41 N.H. at

552, and “[flinal judgment cannot be enforced for the com-

mission of any police offence, however trivial, until the appel-

| N]o subject shall be arrested, imprisoned, despoiled, or deprived of his

property, immunities, or privileges, put out of the protection of the

law. exiled, or deprived of his life, liberty, or estate, but by the judg-

ment of his peers or the law of the land.

N.H. Const., Biil of Rights, art. 15.

lant has been convicted by a jury of his peers.” State v. Ray.

63 N.H. at 407.

In and prior to 1784, a New Hampshire justice of the peace

had general authority to try and determine those criminal

offenses that were punishable by a fine not exceeding forty

shillings, by whipping or by sitting in the stocks. Wilmarth v.

King, 74 N.H. at 513. However, specific statutes authorizing

the punishment of six months’ imprisonment by a justice of the

peace are to be found, even antedating the constitution. New

Hampshire Laws, 63, 64, 65 (1780). See Wilmarth v. King,

supra. See also New Hampshire Laws, c. 45, §§ 3, 4 (1828).

Finally, the appellee suggests that the nature of the following

offenses within the jurisdiction of the justices of the peace

should be noted (these examples all being laws of 1771 cited in

State v. Jackson, 69 N.H. at 516-17): drunkenness; stealing

(where the damage did not exceed forty shillings); “affrayers,

rioters, disturbers or breakers of the peace . . .”; striking or

smiting another; and “assaulting a woman in the fields, streets

or lanes... .”"*

Decisions of the Supreme Court of Vermont, and some

available portions of early Vermont legislation, establish that

two-tier criminal jury procedures were a part of the constitu-

tional experience in Vermont.

The first constitution of Vermont was adopted in 1777.

The act of the legislature of 1786 empowered justices of

the peace to try certain pleas and actions of a criminal

nature, and limited their jurisdiction. It also provided

that every person . . . aggrieved by the sentence of a

' justice in a criminal action, might, on giving security,

remove the cause by certiorari to the supreme court

‘* The fines and penalties for these offenses are contained in the opinion of

the court at 69 N.H. 516-17.

(where there was then a trial by jury.) there to be tried

on the merits. The act of 1789 allowed an appeal from

the judgment and sentence of a justice to the county court

in all criminal causes.

State v. Peterson, 41 Vt. 504, 520-21 (1869). The “county

court” was a jury court. See, “An Act Regulating Juries and

Jurors, 22 Feb. 1779,” reprinted in XII Laws of Vermont

1777 1780, at 117 (Soule, ed. 1964). See also Lincoln v.

Smith, 27 Vt. 328 (1855); Act of June 21, 1782, reprinted in

XIII Laws of Vermont 1781-1784, at 102-03 (Williams, ed.

1965).

Our research discloses that the states of Connecticut and

Rhode Island and the District of Maine similarly employed a

trial de novo procedure for furnishing, during the colonial

period, jury trial to criminal defendants who were tried first

before a magistrate or justice of the peace without a jury. In

Connecticut that procedure seems to date from at least 1702.

See Goddard vy. State, 12 Conn. 448, 454 (1838); Colonial

Records of Connecticut 1689-1706, at 545. In Rhode Island

our earliest reference is 1718. Acts and Laws of Rhode Island,

1663-1767, at 36, 44 (1767).'* And, in the District of Maine,

1783. See State v. Sklar, 317 A. 2d 160, 170 (Me. 1974);

Johnson's Case, 1 Me. 230 (1821). There is also evidence that

* Again. the appellee requests that the Court note the nature of the

offenses for which the trial de novo procedure was provided in jurisdictions

where the defendant was given a general right to a trial by jury subsequent

to a preliminary adjudication by a magistrate or magistrates. For further

example, in the colonial practice of Rhode Island, a preliminary summary

adjudication was provided for in cases of a theft not exceeding ten pounds

sterling (for which the defendant might be punished by “whipping, fining,

and banishing” just as if the conviction had been by a jury verdict at the

General Sessions of the Peace), assault and battery, and firing a gun or

throwing fireworks into a crowd. Acts and Laws of Rhode Island 1663-

1767. at 41, 64, 120 (1767).

a trial de novo procedure for previding a jury trial was

employed in some form in Pennsylvania, Virginia and Dela-

ware during the colonial and constitutional periods.’

* Our research of Pennsylvania legislation of the colonial and constitu-

tional periods does not disclose a uniform jury practice in the case of all

criminal offenses. There was, however, provision for a general right to

appeal to the Quarter Sessions for a jury trial in quasi-civil proceedings. Act

of February 21, 1736, reprinted at 4 Statutes at Large of Pennsylvania 291

(limiting the jurisdiction of justices of the peace at five pounds sterling,

with a right of appeal to a jury in cases involving over forty shillings).

In addition, a trial de novo procedure for furnishing a jury trial was, with

fair consistency, provided for criminal offenses of intermediate seriousness.

See, e.g., Act of August 21, 1719, reprinted at 3 Statutes at Large of Penn-

sylvania 229, 233-34; Act of February 24, 1721, reprinted at 3 Statutes at

Large of Pennsylvania 246 (petty larceny punishable by twenty shilling fine,

whipping and imprisonment); Act of August 15, 1730, reprinted at 4

Statutes at Large of Pennsylvania 194 (blocking a river); Act of October 4,

1788, reprinted at 13 Statutes at Large of Pennsylvania 160 (commercial

fishing law violations punishable by a five-pound fine or two months’ im-

prisonment); Act of April 22, 1794, reprinted at 15 Statutes at Large of

Pennsylvania 110, 115-16 (keeping a gambling establishment punishable by a

fine of twenty-six dollars).

The use of the trial de novo procedure for furnishing a jury trial where it

is constitutionally required in quasi-civil actions has been considered and

affirmed by the Pennsylvania Supreme Court. Emerick v. Harris, 1 Binney,

416 (1808).

The cornerstone of Virginia's criminal justice system was the monthly

court which was formed in 1623 with the appointment of eight designated

commissioners, of whom three were to be a quorum. Act of March 20,

1629, reprinted at 1 Hening’s Statutes at Large 132 (1823); Act of March 1,

1631, reprinted at 1 Hening’s Statutes at Large 168-69 (increasing jurisdic-

tion to causes involving up to five pounds sterling excepting those involving

life or limb). In 1642 the monthly courts became county courts and a single

commissioner was given cognizance of causes involving twenty shillings or

two hundred pounds of tobacco or less. Act of June, 1642, reprinted at |

Hening’s Statutes at Large 273. Also, in 1642, all persons were given what

appears to have been an unqualified right to a jury trial. [bid.

In 1645 the Virginia “county courts” were given jurisdiction of all cases

and ordered to make jury trials available. Act of November 20, 1645, re-

printed at | Hening’s Statutes at Large 303. It is not clear how the last

In partial summary, although there may have been no strict

consensus among the colonies as to the mode in which the

right to jury trial was to be afforded, the trial de novo mode

tor offenses of intermediate seriousness was a very substantial

three acts were reconciled in practice. Possibly, a trial de novo procedure

had already been implimented. In any event, a trial de novo procedure for

furnishing a jury trial was formally implemented in 1658. Act of March 13,

1658, reprinted at | Hening’s Statutes at Large 435. Appellee notes that the

subject matter jurisdiction of one and two commissioners at a preliminary

adjudication was increased to three hundred fifty and one thousand pounds

of tobacco respectively with the implementation of these procedures. We

must further note that the Virginia legislation during this period did not

distinguish between criminal and civil actions procedurally, all penal laws

being enforced through qui tam proceedings involving informers as well as

victims.

This practice was to be short-lived, however. In 1661 a new colonial

government, averring a reverence for the common law of England, adopted

that law. repealed all previous laws, provided that the commissioners were

from then on to be called “justices of the peace” and have the same powers

as English justices, and reduced their jurisdiction in summary proceedings to

causes involving twenty shillings or two hundred pounds of tobacco, or less,

in which causes their judgment was to be “final.” Acts of March 23, 1661,

reprinted at 2 Hening’s Statutes at Large 41, 61-62, 72. It does not appear

that Virginia again established a trial de novo procedure until the post-

constitutional period.

The post-constitutional procedure was held valid under the Sixth Amend-

ment and the Virginia Constitution on the ground that the right to a jury

trial is afforded if an unfettered right of appeal is provided. Brown v.

Epps, 91 Va. 726 (1895) (distinguishing Callan v. Wilson, supra. on the

ground that Article III, Section 2, of the United States Constitution requires

that all federal trials “shall be by jury” which literally leaves no room for

any adjudication in the absence of a jury).

Information on early Delaware practice is quite sparse. Much of the

early penal legislation is somewhat cryptic. It is clear that the Delaware

justices of the peace had jurisdiction over some offenses of intermediate

seriousness, and although a right to appeal for a trial by jury in the quarter

sessions is not expressly given for all offenses, the right is expressly afforded

in the more comprehensive legislative enactments and in language that

suggests the right may have been generally available. Laws of the Govern-

ment of New Castle, Kent and Suffolk upon Delaware 1700-1749, at 139,

part of the colonial experience and was, appellee suggests.

clearly within the understanding of the framers of our Federal

Constitution. Indeed, we suggest that the de novo mode was

within the experience and understanding of those whose _pre-

cepts as regards tiie jury-trial right were the more developed.

in the “de novo states” it appears that jury trial was provided

for all offenses, petty and serious.

2. Contemporary State Practice.

The contemporary practices of the states with respect to jury

trial have been the subject of examination by this Court in

several recent cases, notably: Duncan v. Louisiana, supra;

North Carolina v. Pearce, supra; Baldwin v. New York, 399

U.S. 66 (1970); Williams v. Florida, supra; Apodaca vy. Ore-

gon, supra; and Colten v. Kentucky, supra. And our exami-

nation of the parties’ briefs in these cases indicates that the

Court has received considerable analysis, on a state-by-state

basis, of the criminal jury procedures of most of the states.

See, e.g., Duncan v. Louisiana, supra; Brief for Appellant,

pp. 3a-8a; Brief for Appellee, pp. 101-113.

The appellee has examined contemporary state practice and

suggests that a de novo procedure, comparable to the Massa-

159, 184, 194, 218 (Franklin and Hall, eds. 1752); Laws of the Government

of New Castle, Kent and Suffolk upon Delaware 1753-1762, at 146, 316,

321, 323 (Adams, ed. 1763) (with October 1763 Session to October 1774

Session Supplements).

Records of legislative enactments, or case law, or both, concerning the

colonial and constitutional periods were available to aprellee for New York,

Maryland, New Jersey and Georgia. A search of this material did not dis-

close the use of a trial de novo procedure for providing a jury trial or a

provision for a general right to a jury trial in these states. Complete records

of the colonial practice of South Carolina and North Carolina were not

available. However, it is known that North Carolina provided a trial de

novo procedure for offenses of intermediate seriousness as early as 1868. See

State v. Powell, 86 N.C. 640, 642 (1882).

chusetts procedure, is currently being utilized by several states

including, at least Arizona,*' Arkansas,** Alabama,*’ Kansas,**

North Carolina,** New Hampshire,** Pennsylvania*’ and

'' Ariz. Rev. Stat. §§ 22-371 through 22-374 establish the de novo apeal to

the superior court from the final judgment of a justice or police court;

however, the “appeal” is not always de novo, i.e., if a transcript of the

proceedings in the lower court has been maintained, the “appeal” may be

upon that record based upon the superior court's evaluation of the suffi-

ciency and condition of that record. The jurisdiction of the justice of the

peace courts is contained in Ariz. Rev. Stat. § 22-301.

Ark. Stat. §§ 44-115, -116, -501 and -509 establish the de novo pro-

cedure of appeal to the circuit court. See Cableton v. State, 243 Ark. 351,

359 (1967). However, the initial jurisdiction of the lower “tier” appears to

be restricted to violations of municipal by-laws and ordinances. See Ark.

Stat. §§ 44-115, -116.

*' See Ala. Const. art. I, §§ 6, 11 (1901). The jurisdiction of the first tier

(the “county court”) is defined in Ala. Code Ann. tit. 13, § 321; see Leonard

v. State, 43 Ala. App. 454 (1966), and Ala. Code Ann. tit. 13, § 326. The

latter citation appears to define the de novo right. Appellee also notes that

second degree manslaughter appears to be a misdemeanor in Alabama and

subject to adjudication, in the first instance, at the lower court level without

a jury.

** The de nove procedure appears in Kan. Stat. Ann. §§ 22-3609, -3610,

reenacted, c. 179, Acts of 1975. See State v. Parker, 213, Kan. 229, 230,

233, 235 (1973).

“N.C. Gen. Stat. §§ 7A-196, -271, -272.

* The trial de novo procedure and enabling legislation is explained in

State v. Despres, 107 N.H. 297 (1966). See N.H. Rev. Stat. §§ 502:18,

502A:11, 502A:12. The jurisdiction of the district or municipal first tier is

limited to crimes for which the maximum penalty is fine not exceeding one

thousand dollars or imprisonment not exceeding one year or both. Ibid.

* Pa. Code tit. 234, Rules 5!, 67, 6001, 6006, 6010. Pa. R. Crim. P.

67(e), tit. 19. The municipal court has jurisdiction of all criminal offenses

where the punishment that might be imposed is five years or less. After the

Virginia.** Appellee acknowledges that the ostensible jurisdic-

tion of the Massachusetts “first tier” seems to represent (with

the possible exception of Alabama) the extreme with respect to

powers of fines and incarceration. However. the concept of

de novo adjudication, in a procedure comparable to the Mas-

sachusetts system in respects other than potential sentencing,

seems to be recognized as a legitimate form of jury procedure

.by a substantial number of states.**

imposition of sentence the municipal court judge shall notify the defendant

of his right to appeal for a trial de novo by jury. If the defendant does

appeal, the district attorney must proceed to a grand jury and, upon return

of an indictment, proceedings continue as in other cases involving indictable

offenses.

"Va. Code Ann. §§ 16.1-123, -124, -125, -132, -136. See Common-

wealth v. Bass, 113 Va. 760 (1912). In Virginia, any person convicted in a

court not of record, of an offense rut felonious, has a right to a de novo jury

trial in a circuit court (even if the conviction resulted from guilty plea,

rather than trial). «

* Appellee has suggested, and, hopefully established, that the subject |

matter or “core offenses” cognizabie by colonial justices of the peace are sub-

stantially comparable to the subject matter jurisdiction of the present Massa-

chusetts District Courts and the Boston Municipal Court. It does appear.

however, that the ostensible authority of the modern justice has been sub-

stantially expanded in terms of money fine amount and potential time of

incarceration. This is, of course, an important consideration, especially in

view of the recognized distinction between “petty” and “serious” offenses

and the doctrine of Callan v. Wilson, supra. Appellee argues, however,

that the practical expansion of “lower tier” jurisdictiori is justified by social,

technological and procedural advance, as well as by need, but, further, that

the actual expansion is far less than the apparent expansion.

The expansion of magistrates’ jurisdiction was examined by the New

Hampshire Supreme Court in State v. Jackson, supra. That court noted

that, with some exceptions, in 1777 the largest fine which a New Hampshire

justice was authorized to impose was forty shillings, and that the longest

definite term of imprisonment was three months, “. . . authority being given

B. The Massachusetts Jury Procedure Effects this Court's

Enunciation of the Purpose and Function of Jury Trial

in America.

In addition to an examination of historical and contem-

porary practices among the states, the Court, in recent cases

touching upon the nature of the jury right, has studied the

purpose and function of the jury in contemporary society. In

Duncan v. Louisiana, supra, the Court noted:

in certain cases to imprison in the house of correction for an indefinite term;

“ 69 N.H. at 518. That court, in 1898, undertook to interpret the 1777

ventencing power in terms of subsequent authority of the justices in 1791.

1799, 1805, 1815. 1822, ete. The interpretation and examination took this

form:

In 1781, the Spanish milled dollar reckoned as six shillings, and other

silver and gold in proportion, were made legal tender on all contracts

made after that time, and for all debts contracted prior to the last day

of January, 1777. Laws, ed. 1789, pp. 185, 187. The constitution

provides that, in all cases where sums of money are mentioned in it,

“the value thereof shall be computed in silver at six shillings and eight

pence per ounce.” Laws, ed. 1789, p. 30. Const., art. 96. It seems

from the act of February 12, 1785, that the value of gold at that time

was five pounds six shillings eight pence per ounce, or, when compared

with silver, as sixteen to one. Laws, ed. 1780, p. 338; ed. 1789,

p. 187. The money of account was changed from the English system

to the decimal or United States system in 1792 (Act of Congress of

April 2, 1792, c. 16, s. 20; Laws, ed. 1797, p. 267); and the first

United States silver dollar was coined in 1794. This dollar contained

371% grains of pure silver, — about the same quantity as the Spanish

milled dollar. According to the rule of the constitution, forty shillings

equaled six ounces of silver, — a quantity sufficient to make seven

and three fourth United States Silver dollars.

69 N.H. at 518-19.

Appellee includes this New Hampshire analysis primarily to establish that

a dollar-for-dollar comparison is difficult, if not totally impractical. Never-

theless, appellee asks that this Court. if such comparison be made, take note

. Perhaps because the right to jury trial was not di-

rectly at stake, the Court’s remarks about the jury in

Palko and Snyder [Palko v. Connecticut, 302 U.S. 319

(1937); and Snyder v. Massachusetts, 291 U.S. 97 (1934)]

took no note of past or current developments regarding

jury trials, [and] did not consider its perpen | and func-

tions... . 391 U.S. at 155.

of the fact that the Chief Judge of the Vermont County Court was paid at

the rate of ten shillings per day in 1780, and that an attorney in that court

received for his labor four shillings per day. “An Act for Regulating Fees

Novr. 3RD 1780” reprinted in XII Laws of Vermont 1777-1780, at 206.

(Soule, ed. 1964).

And, should this Court compare the extreme of the present authority of a

Massachusetts District Court Judge to imprison, the appellees ask that the

following statement of the Rhode Island Supreme Court be noted:

Suffice it to say that at the time of the adoption of the State constitution

[1843] imprisonment in the State prison was the gravest punishment

known to the law of the State for crimes less than capital crimes, and

that it had succeeded to the former punishments of whipping, branding,

and standing in the pillory.

State v. Nichols, 27 R.1. 69, 82 (1905).

Moreover, although the District Court has jurisdiction over all felonies

punishable by imprisonment in the State prison for up to five years, in fact

the District Court may sentence only to the local jail or House of Correction

in which the maximum term of imprisonment is two and one-half years.

Mass. G.L. c. 218, § 27 (1958); c. 279, § 23.

In summary, appellee argues that the propriety of the present Massachu-

setts system should not be diluted because of ostensible, rather than actual,

enlargements of jurisdiction as originally entrusted to justices of the peace.

Appellee asks the Court to recognize that the Massachusetts procedure is not

an imaginary scheme, but a functioning and developing process with a three-

hundred-year history, presently accomodating in excess of one million crim-

inal matters each year. Seventeenth Annual Report to the Justices of the

Supreme Judicial Court (1973) at 52.

The Court then stated the purpose (and its components) of the

guarantee of jury trial in the Federal and State Constitutions:

“A right to jury trial is granted to criminal defendants in order

to prevent oppression by the Government.” (Citing Singer v.

United States, 380 U.S. 24, 31 (1965).) 391 U.S. at 155. The

Court continued with categories of potential governmental

oppression based upon history and experience:

1. unfounded criminal charges brought to eliminate

enemies;

judges too responsive to the voice of higher authority;

protection against arbitrary action;

the corrupt and overzealous prosecutor;

the complaint, biased, or eccentric judge;

the exercise of plenary powers over the life and liberty

of the citizen by one judge or a group of judges;

unchecked power; and,

8. arbitrary law enforcement,

SPF?

concluding, inter alia, that: “Even where defendants are satis-

fied with bench trials, the right to a jury trial very likely

serves its intended purpose of making judicial or prosecutorial

unfairness less likely.” 391 U.S. at 158. See also Taylor v.

Louisiana, 419 U.S. 522 (1975).

In Williams v. Florida, 399 U.S. 78 (1970), the Court con-

sidered the question whether the constitutional guarantee of a

trial by “jury” necessarily required trial by exactly twelve

persons, rather than some lesser number -— in Williams, six.

399 U.S. at 86. In deciding the issue the Court stated:

.. . The relevant inquiry, as we see it, must be the func-

tion that the particular feature performs and its relation

to the purposes of the jury trial. 399 U.S. at 99-100.

The Court then reviewed the statement of jury purpose con-

tained in Duncan, concluding:

. . Given this purpose [to prevent oppression by the

government], the essential feature of a jury obviously lies

in the interposition between the accused and his accuser

of the commonsense judgment of a group of laymen, and

in the community participation and shared responsibility

that results from that group’s determination of guilt or

innocence. 399 U.S. at 100.

The Court determined that there was little reason to think that

these goals are in any meaningful sense less likely to be

achieved when the jury numbers six, than when it numbers

twelve. Ibid.

In Apodaca v. Oregon, 406 U.S. 404 (1972), this Court

considered the question whether conviction of crime by a less-

than-unanimous jury violated the right to trial by jury in

criminal cases. 406 U.S. at 406. The Court examined rele-

vant constitutional history, noting that conflicting inferences

could be drawn therefrom, and stated:

. that in determining what is meant by a jury we

must turn to other than purely historical considerations.

406 U.S. at 410.

The Court’s inquiry then explicitly focused upon the func-

tion served by the jury in contemporary society, and the enun-

ciated jury “purpose” of Duncan and Williams was examined.

The Court concluded that “[a] requirement of unanimity . . .

does not materially contribute to the exercise of this common-

sense judgment.” Ibid. (Emphasis added.)

In view of the “purpose and function” analyses of Duncan,

Williams, and Apodaca, appellee suggests that it is appropri-

ate in the instant case to examine the Massachusetts jury

procedure to determine whether or not the “essential feature”

of the jury is effected. The issue is governmental oppression

and whether or not the Massachusetts system, in a meaning-

ful sense, prevents such oppression by the interposition of the

commonsense judgment of a body of laypersons between the

accused and his accuser.*°

’° An examination of the trial de novo cases decided in the state courts has

provided little assistance. In Manns v. Commonwealth, 213 Va. 233

(1972), the Virginia court made no examination of history, nor analysis of

jury purpose, in its consideration of this question. The court seemed merely

to reject the argument that Callan v. Wilson became applicable to the states

via Duncan v. Louisiana, citing to footnote 30 and the dissent of Mr. Justice

Fortas. Also, in State v. Halliday, 109 R.I. 93 (1971), no examination of

history or jury purpose is apparent; rather, the Rhode Island court con-

cluded on the basis of Duncan, and Baldwin v. New York, 399 U.S. 66

(1970), that the “ mandate of Callan is applicable to the states.” 109 R.I. at

103.

Cases decided in federal courts bear only indirectly upon potential govern-

mental oppression and even less directly upon the question of jury purpose.

in Lemieux v. Robbins, 414 F. 2d 353 (1st Cir. 1969) (cited with approval

by the court in State v. Sparrow, 276 N.C. 499 (1970)), the Circuit Court

examined the trial de novo procedure in the state of Maine on the basis of a

challenge deriving from this Court's determination of North Carolina v.

Pearce, 395 U.S. 711 (1969). In its opinion, the Circuit Court made the

following statement with respect to the practical nature of the de novo

procedure:

.. . [A] defendant gives up nothing by going to trial in the district

court. Nor, unlike the situation in Pearce, need he demonstrate error,

constitutional or other, in a first trial to secure a second trial, which

very proof of error gives the state the opportunity to increase the pun-

ishment. Such is indeed a one way street. Here we deal with a two

way street. Defendant has the benefit of two full opportunities for ac-

quittal. If he fails to gain acquittal in the district court, his mere exer-

cise of his right to “appeal” not only gives him a new trial but vacates

the judgment and removes the entire case to the Superior Court. The

An examination of the Massachusetts jury system discloses

that an accused has an absolute right to a body of laymen

whose judgment will stand between himself and his accuser

after a preliminary adjudication at which he need do

nothing.*' In fact, the defendant obtains the distinct advan-

tage of being able to discover the prosecution’s case without

having to disclose his own, while in no way jeopardizing his

state is willing to accept this in the long-run interest of reducing the

load on the Superior Court. The defendant need not accept it at all.

[ Footnote omitted.] If he does accept it, both he and the state start at

parity; should he elect to take advantage of a second and fresh oppor-

tunity, it does not seem unfair to us that, absent affirmative proof of

vindictiveness, they should start again at parity. 414 F. 2d at 355.

Although the statement is not explicitly addressed to the issue of govern-

mental oppression, the appellee suggests that the Circuit Court's observation

implicitly contraindicates government oppression in the de novo process.

In Manns v. Koontz, 451 F. 2d 1344 (4th Cir. 1971), the Circuit Court

affirmed a federal district court's refusal to grant relief on the basis of a

claim that the Virginia de novo procedure was violative of Duncan. The

basis of dismissal seems to have clearly been 28 U.S.C. § 2283 and Younger

v. Harris, 401 U.S. 37 (1971). However, the Court did consider the element

of irreparable injury and the prosecutorial-oppressive criteria of Dombrowski

v. Pfister, 380 U.S. 479 (1965), in reaching its decision. Appellee suggests

that the Court's action at least implicitly contraindicates governmental

oppression in the Virginia procedure.

*! In Callan v. Wilson, 127 U.S. 540 (1888), this Court rejected a hypo-

thetical system based upon the “. . . power to provide for several trials by a

court, without a jury, on several successive convictions, before allowing a

trial by jury.” 127 U.S. at 555. It is clear that several successive convic-

tions are neither theoretically possible nor actually permissible in the Com-

monwealth of Massachusetts. The “appeal” and jury trial may be elected

immediately by a convicted district court defendant and, as such, should be

distinguished from the possibility of prolonged litigation which was suggested

by this Court in Callan.

right to trial by jury. Although he cannot as of right waive a

trial at the district court level, cf. Lemieux v. Robbins, supra,

at 355, n. 4, he can certainly avoid a trial by merely listening

to the Commonwealth's evidence without offering his own

and, if found guilty, appeal. Or he may simply admit to a

finding and then appeal for a de novo trial. Therefore, con-

trary to the situation in Breed v. Jones, 421 U.S. 519 (1975),

it is the defendant's choice as to the amount of his partici-

pation in the first proceeding and as to whether he wishes to

opt for a second proceeding. On appeal, the District or Muni-

cipal Court proceeding becomes a nullity: the appeal “wipes

out the lower court action entirely.” The defendant then has

a second opportunity for acquittal, if he so chooses. Mann v.

Commonwealth, 359 Mass. 661 (1971), at 666.

Admittedly. the de novo procedure effects a minimal degree

of restriction and, arguably, inconvenience.** We see, how-

ever, the question as one of oppression, and not of incon-

venience: can it be said that the de novo procedure materially

dilutes the function of a jury when the defendant may listen to

the government's case, without disclosing his own, and have,

immediately thereafter and of absolute right, the further com-

munity participation in the process of adjudication of guilt or

innocence and the interposition of commonsense judgment of a

group of laymen — and, at the same time have the possibility

of immediate acquittalP We suggest that the answer should

be in the negative. The function of the jury is preserved.

Appellant asserts that this Court has rejected appellee's

theory that the de novo system offers a defendant the “full

** The Commonwealth justifies the inconvenience by pointing out that the

District Courts are designed, in the interest of both the defendant and the

Commonwealth, to provide speedier and less costly adjudications than are

possible on the second level of the Massachusetts two-tier system. The de

novo system alleviates the burden in the Superior Court, where the full

range of constitutional guarantees is available to all on appeal. Cf. Colten

v. Kentucky, 407 U.S. 104, 114 (1972).

panoply of constitutional rights” as guaranteed by due process.

Appellant’s Brief, p. 55. However, appellant's reliance on

Ward v. Village of Monroeville, 409 U.S. 57 (1972), is in-

apposite. In Ward, the defendant faced trial for traffic vio-

lations in the first instance before the mayor of the town. The

fines imposed for such violations constituted a major portion of

the village income. This situation was one “*. . . in which an

official perforce occupies two practically and seriously in-

consistent positions, one partisan and the other judicial, { and]

necessarily involves a lack of due process of law in the trial of

defendants charged with crimes before him.’” 409 U.S. at 60.

Within this framework, the court held that the eventual offer

of an impartial adjudication was not constitutionally accept-

able. However, in the instant case there is no allegation that

an initial adjudication before a District Court judge is not

made by an impartial and disinterested tribunal.

C. The Massachusetts Criminal Jury Procedure Complies

with the Fourteenth Amendment's Ban Against “Double

Jeopardy.”

The Fifth Amendment guarantee against double jeopardy is

enforceable against the states through the Fourteenth Amend-

ment. Benton v. Maryland, 395 U.S. 784 (1969). This is,

appellee acknowledges, a fundamental guarantee. Id. at 795.

However, as the Court noted in North Carolina v. Pearce, 395

U.S. 711, 719-20 (1969):

At least since 1896, when United States v. Ball, 163

U.S. 662, was decided, it has been settled that this con-

stitutional guarantee imposes no limitations whatever

upon the power to retry a defendant who has succeeded

in getting his first conviction set aside. “The principle

that this provision does not preclude the Government's

retrving a defendant whose conviction is set aside because

of an error in the proceedings leading to conviction is a

well-established part of our constitutional jurisprudence.”

United States v. Tateo, 377 U.S. 463, 465. (Footnote

omitted. )

And further:

Althougn the rationale for this “well-established part

of our constitutional jurisprudence” has been variously

verbalized, it rests ultimately upon the premise that the

original conviction has, at the defendant’s behest, been

wholly nullified and the slate wiped clean. Id. at 720-

21.

This rationale was applied to a two-tier system of criminal

justice in Colten v. Kentucky, 407 U.S. 104 (1972). There

the appellant had been convicted of a misdemeanor in the

Kentucky two-tier system. On appeal to this Court, the ap-

pellant challenged, inter alia, the constitutionality of the

enhanced penalty he received after conviction at his “second-

tier’ trial. As to the appellant’s double jeopardy argument,

this Court stated:

this Court said:

Colten’s alternative contention is that the Double Jeo-

pardy Clause prohibits the imposition of an enhanced

penalty upon reconviction. The Pearce Court rejected

the same contention in the context of that case, 395 U.S.

at 719-720. Colten urges that his claim is stronger be-

cause the Kentucky system forces a defendant to expose

himself to jeopardy as a price for securing a trial that

comports with the Constitution. That was, of course,

the situation in Pearce, where reversal of the first con-

viction was for constitutional error. The contention also

ignores that a defendant can bypass the inferior court

simply by pleading guilty and erasing immediately there-

after any consequence that would otherwise follow from

tendering the plea. 407 U.S. at 119-20.

Appellee suggests that, in determining that the imposition of

a more severe penalty upon reconviction in Kentucky's two-

tier system was constitutionally permissible, this Court held,

a fortiori, that retrial and reconviction in the Kentucky two-

tier system were constitutionally permissible.

In Massachusetts, as was the case in Kentucky, the defend-

ant in a criminal trial “appeals” to the second ‘evel of the

two-

two-tier systern to receive a trial “in the criminal courts of

general jurisdiction where the full range of constitutional

guarantees is available.” Colten v. Kentucky, 407 U.S. at

114. In Massachusetts, as was the case in Kentucky, the right

to the second-tier is absolute and, at the defendant's behest,

the lower court proceedings are “wipe[d] out . . . entirely.”

Mann v. Commonwealth, 359 Mass. at 666. See Colten v.

Kentucky, 407 U.S. at 113 n. 7.

Thus, appellee suggests, the Massachusetts de novo trial

procedure does not violate the double jeopardy ban of the

Fourteenth Amendment.

Conclusion.

For the reasons stated above, the appellee suggests that this

Court should conclude that the appellant's claim is without

merit in that, under Massachusetts procedure. he was afforded

a jury trial in compliance with and within the requirements of

the Fourteenth Amendment.

Respectfully submitted, *

FRANCIS X. BELLOTTI,

Attorney General,

JOHN J. IRWIN, jR.,

Assistant Attorney General,

Chief, Criminal Bureau,

BARBARA A. H. SMITH,

Assistant Attorney General.

* Counsel acknowledges that substantial portions of this brief have been

excerpted from the Commonwealth's brief in a related matter, Costarelli v.

Massachusetts, which was prepared by former Assistant Attorney General

David A. Mills.

IX. Appendix A.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.

Fourteenth Amendment of the United States Constitution,

Section 1.

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

Article XII, Constitution of Massachusetts.

No subject shall be held to answer for any crimes or offense,

until the same is fully and plainly, substantially and formally,

described to him; or be compelled to accuse, or furnish evi-

dence against himself. And every subject shall have a right to

produce all proofs, that may be favorable to him; to meet the

witnesses against him face to face, and to be fully heard in his

defence by himself, or his counsel, at his election. And no

subject shall be arrested, imprisoned, despoiled, or deprived of

his property, immunities, or privileges, put out of the protec-

tion of the law, exiled, or deprived of his life, liberty, or

estate, but by the judgment of his peers, or the law of the

land.

And the legislature shall not make any law, that shall sub-

ject any person to a capital or infamous punishment, excepting

for the government of the army and navy, without trial by

jury.

Title 28, United States Code, Section 1257.

Final judgments or decrees rendered by the highest court of

a State ‘n which a decision could be had, may be reviewed by

the Supreme Court as follows:

(1) By appeal, where is drawn in question the validity of a

treaty or statute of the United States and the decision is against

its validity.

(2) By appeal, where is drawn in question the validity of a

statute of any state on the ground of its being repugnant to the

Constitution, treaties or laws of the United States, and the

decision is in favor of its validity.

(3) By writ of certiorari, where the validity of a treaty or

statute of the United States is drawn in question or where the

validity of a State statute is drawn in question on the ground

of its being repugnant to the Constitution, treaties or laws of

the United States, or where any title, right, privilege or

immunity is specially set up or claimed under the Constitution,

treaties or statutes of, or commission held or authority exer-

cised under, the United States.

For the purposes of this section, the term “highest court of a

State” includes the District of Columbia Court of Appeals.

Massachusetts General Laws, Chapter 218, Section 27A:

{ Trial by jury of six in certain courts. ]

Any defendant in a district court of Berkshire county found

guilty of an offense or crime over which the district courts

have original jurisdiction under the provisions of section

twenty-six may appeal and claim a jury of six in the district

court of Central Berkshire.

Any defendant in a district court of Bristol county found

guilty of an offense or crime over which the district courts

have original jurisdiction under the provisions of section

twenty-six may appeal and claim a jury of six in the second or

third district court of Bristol.

Any defendant in a district court of Essex county found

guilty of an offense or crime over which the district courts

have original jurisdiction under the provisions of section

twenty-six may appeal and claim a jury of six in the first dis-

trict court of Essex or the central district court of northern

Essex.

Any defendant in a district court of Hampden county found

guilty of an offense or crime over which the district courts

have original jurisdiction under the provisions of section

twenty-six may appeal and claim a jury of six in the district

court of Springfield.

Any defendant in the first district court of northern Middle-

sex, the fourth district court of eastern Middlesex or the district

court of Lowell found guilty of an offense or crime over which

the district courts have original jurisdiction under the provi-

sions of section twenty-six may appeal and claim a jury of six

in the district court of Lowell.

Any defendant in the district court of Marlborough, the dis-

trict court of Natick, first district court of southern Middlesex,

the district court of central Middlesex or the second district

court of eastern Middlesex found gu‘lty of an offense or crime

over which the district courts have original jurisdiction under

the provisions of section twenty-six may appeal and claim a

jury of six in the first district court of southern Middlesex.

Any defendant in the first district court of eastern Middle-

sex, the third district court of eastern Middlesex, the district

court of Somerville, or the district court of Newton, found

guilty of an offense or crime over which the district courts

have original jurisdiction under the provisions of section

twenty-six may appeal and claim a jury of six in the third

district court of eastern Middlesex.

Any defendant in a district court of Norfolk County found

guilty of an offense of crime over which the district courts

have original jurisdiction under the provisions of section

twenty-six may appeal and claim a jury of six in the district

court of northern Norfolk or the district court of East Norfolk.

Any defendant in a district court of Plymouth county found

guilty of an offense or crime over which the district courts

have original jurisdiction under the provisions of section

twenty-six may appeal and claim a jury of six in the district

court of Brockton.

Any defendant in a district court of Worcester county found

guilty of an offense or crime over which the district courts

have original jurisdiction under the provisions of section

twenty-six may appeal and claim a jury of six in the cenvral

district court of Worcester.

Such claim of appeal shall be in writing and shall constitute

a waiver of any claim of appeal to a trial by jury in the su-

perior court or other disposition in said superior court.

Any defendant found guilty in any of said district courts, of

an offense or crime over which the district courts have original

jurisdiction under the provisions of section twenty-six who has

appealed to the superior court may, in the discretion of a jus-

tice of the superior court, at any time before trial on such an

appeal, claim a jury of six in the district court designated in

paragraphs one through ten of this section. Such claim shall

be in writing and shall constitute a waiver of any right to a

trial by jury in the superior court or other disposition in said

superior court. When a claim for a trial by jury of six has

been made under the provisions of this paragraph, the clerk of

the superior court shall forthwith forward to the clerk of the

said district court all the papers in the case which have been

filed in the superior court.

The justice presiding at such session over a jury of six shall

have and exercise all the powers and duties which a justice of

the superior court has and may exercise in the trial and dis-

position of such cases.

No justice so sitting shall act in a case in which he has either

sat or held ai: inquest in the district court or otherwise has

taker part in any proceeding therein.

Trials by such juries of six in a district court shall be held in

the courthouse of said court or a courthouse of the superior

court within the same county, and shall proceed in accordance

with the provisions of law applicable to trials by jury in the

superior court, except that the number of peremptory chal-

lenges shall be limited to two to each defendant. The com-

monwealth shall be entitled to as many challenges as equal the

whole number to which all of the defendants in the case are

entitled. Jurors shall be drawn from the pool of jurors avail-

able for the jury sessions in either civil or criminal sessions in

the superior court. The district attorney for the district in

which the alleged offense or offenses occurred shall appear for

the commonwealth in all cases. The chief justice of the dis-

trict courts shall arrange for the jury sessions of the said dis-

trict courts and shall assign justices and special justices thereto,

to the end that speedy trials may be provided for such appeals.

In the event of a trial by a jury of six in a district court,

review may be had directly by the supreme judicial court by

a bill of exceptions, appeal, report or otherwise, in the same

manner provided for trials by jury in the superior court. The

defendant may elect to waive a jury of six in the manner pro-

vided by section six of chapter two hundred and sixty-three,

but such waiver shall not revive any right to a trial by jury or

other disposition in the superior court which had been waived

under the provisions of the eleventh or twelfth paragraphs, of

this section. .

The justice presiding at such session over a jury of six shall,

upon the request of the defendant, appoint a stenographer,

who shall be sworn, and who shall take stenographic notes

of all the testimony given at the trial, and shall provide the

parties thereto with a transcript of his notes or any part there-

of taken at the trial or hearing for which he shall be paid by

the party requesting it at the rate fixed by the chief justice of

the district courts; provided, however, that such rate shall not

exceed the rate provided by section eighty-eight of chapter two

hundred and twenty-one. Said chief justice may make regu-

lations not inconsistent with law relative to the assignments,

duties and service of stenographers appointed for any district

court, and any other matter relative to such stenographers.

The compensation and expenses of said stenographer shall be

paid by the county.

Massachusetts General Laws, Chapter 278, Section 18.

[ Appeals in criminal cases to superior courts; recognizance. |

Whoever is convicted of a crime before a district court may

appeal the finding of guilty or the sentence imposed thereon to

the superior court or may appeal to and claim a jury of six in

a district court in accordance with section twenty-seven A of

chapter two hundred and eighteen and at the time of convic-

tion shall be notified of his right to take such appeal. The

case shall be entered into the superior court on the return day

next after the appeal is taken, and the appellant shall be re-

leased on personal recognizance or committed, in accordance

with the procedures set forth in section fifty-eight of chapter

two hundred and seventy-six, until he recognizes to the com-

monwealth, in such sum and with such surety or sureties as

the court requires, with condition to appear at the superior

court on said return day and at any subsequent time to which

the case may be continued, if not previously surrendered and

discharged, and so from time to time until the final sentence,

order or decree, and not depart without leave, and in the

meantime to keep the peace and be of good behavior. If the

appellant is not released on personal recognizance and _ is

committed for failure to recognize, the superior court shall

thereupon have jurisdiction of the case for the purpose of re-

vising the amount of bail required as aforesaid. The appel-

lant shall not be required to advance any fees upon claiming

his appeal or in prosecuting the same. Notwithstanding any

other provision of law, a defendant, after a finding of guilty in

a district court, may appeal therefrom and shall thereafter be

entitled to a trial de novo in the superior court or may appeal

to and claim a jury of six in a district court in accordance with

said section twenty-seven A.

Massachusetts General Laws, Chapter 278, Section 18A:

[Trial of misdemeanors in Suffolk County or in municipal

court of Boston. ]

Any defendant, in any district court of Suffolk county or in

the municipal court of the city of Boston, found guilty of a

violation of a by-law, order, ordinance, rule or regulation

made by a city or town or public officer or of any other mis-

demeanor, except libel, may appeal and claim a jury of

twelve in the municipal court of the city of Boston. By claim-

ing such appeal, the said claimant shall be deemed to have

waived any claim of appeal to a trial by a jury in the superior

court or other disposition in said superior court.

Any defendant, found guilty in any district court of Suffolk

county or in the municipal court of the city of Boston, of a

violation of any of the offenses enumerated in the first para-

graph of this section who has appealed to the superior court,

may, at any time before trial on such appeal, claim a trial by

a jury of twelve in the municipal court of the city of Boston

and by so doing shall be deemed to have waived any right to a

trial by a jury in the superior court or other disposition in said

superior court. When a claim for a trial by a jury of twelve

in the municipal court of the city of Boston has been made un-

der the provisions of this paragraph, the clerk of the superior

court shall forthwith forward to the clerk of said municipal

court of the city of Boston all papers in the case which have

been filed in the superior court.

The justice presiding at such session over a jury of twelve in

said municipal court of the city of Boston shall have and exer-

cise all the powers and duties which a justice of the superior

court has, and may exercise in the trial and disposition of such

cases.

No justice so sitting shal! act in a case in which he has either

sat or held an inquest in the district court or otherwise has an

interest.

Trials by such juries of twelve shall proceed in accordance

with the provisions of law and rules of court applicable to

trials by jury in the superior court. The commonwealth shall

be entitled to as many challenges as equal the whole number

to which all of the defendants in the case are entitled. Jurors

shall be drawn from the pool of jurors available for the jury

sessions in the superior court for Suffolk county. The district

attorney for the Suffolk district shall appear for the

commonwealth in all cases. The chief justice of the municipal

court of the city of Boston shall arrange for jury sessions in the

said municipal court and shall assign justices and special jus-

tices thereto, to the end that speedy trials may be provided

for such appeals. In the event of a trial by a jury of twelve

in the said municipal court, review may be had directly by the

supreme judicial court, by a bill of exceptions, appeal, report

or otherwise in the same manner provided for trials by jury in

the superior court. Any person taking an appeal under this

section shall be subject to the municipal court of the city of

Boston in matters of recognizance. In such matters, the said

municipal court shall have all of the powers and duties of, and

shall proceed in the same manner as the superior court.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.