Massachusetts Criminal Procedure Rule 13: Pretrial Motions
(Applicable to cases initiated on or after September 7, 2004)
(1) Requirement of Writing and Signature; Waiver. A pretrial motion shall be in writing and signed by the party making the motion or the attorney for that party. Pretrial motions shall be filed within the time allowed by subdivision (d) of this rule.
(2) Grounds and Affidavit. A pretrial motion shall state the grounds on which it is based and shall include in separately numbered paragraphs all reasons, defenses, or objections then available, which shall be set forth with particularity. If there are multiple charges, a motion filed pursuant to this rule shall specify the particular charge to which it applies. Grounds not stated which reasonably could have been known at the time a motion is filed shall be deemed to have been waived, but a judge for cause shown may grant relief from such waiver. In addition, an affidavit detailing all facts relied upon in support of the motion and signed by a person with personal knowledge of the factual basis of the motion shall be attached.
(3) Service and Notice. A copy of any pretrial motion and supporting affidavits shall be served on all parties or their attorneys pursuant to Rule 32 at the time the originals are filed. Opposing affidavits shall be served not later than one day before the hearing. For cause shown the requirements of this subdivision (3) may be waived by the court.
(4) Memoranda of Law. The judge or special magistrate may require the filing of a memorandum of law, in such form and within such time as he or she may direct, as a condition precedent to a hearing on a motion or interlocutory matter. No motion to suppress evidence, other than evidence seized during a warrantless search, and no motion to dismiss may be filed unless accompanied by a memorandum of law, except when otherwise ordered by the judge or special magistrate.
(5) Renewal. Upon a showing that substantial justice requires, the judge or special magistrate may permit a pretrial motion which has been heard and denied to be renewed.
(1) Motion. Within the time provided for the filing of pretrial motions by this rule or within such other time as the judge may allow, a defendant may request or the court upon its own motion may order that the prosecution file a statement of such particulars as may be necessary to give both the defendant and the court reasonable notice of the crime charged, including time, place, manner, or means.
(2) Amendment. If at trial there exists a material variance between the evidence and bill of particulars, the judge may order the bill of particulars amended or may grant such other relief as justice requires.
(1) All defenses available to a defendant by plea, other than not guilty, shall only be raised by a motion to dismiss or by a motion to grant appropriate relief.
(2) A defense or objection which is capable of determination without trial of the general issue shall be raised before trial by motion.
(1) Discovery Motions. Any discovery motions shall be filed prior to the conclusion of the pretrial hearing, or thereafter for good cause shown. A discovery motion filed after the conclusion of the pretrial hearing shall be heard and considered only if (A) the discovery sought could not reasonably have been requested or obtained prior to the conclusion of the pretrial hearing, (B) the discovery is sought by the Commonwealth, and the Commonwealth could not reasonably provide all discovery due to the defense prior to the conclusion of the pretrial hearing, or (C) other good cause exists to warrant consideration of the motion.
(2) Non-discovery Pretrial Motions. A pretrial motion which does not seek discovery shall be filed before the assignment of a trial date pursuant to Rule 11(b) or (c) or within 21 days thereafter, unless the court permits later filing for good cause shown.
(e) Hearing on Motions. The parties shall have a right to a hearing on a pretrial motion. The opposing party shall be afforded an adequate opportunity to prepare and submit a memorandum of law prior to the hearing.
(1) Discovery Motions. All pending discovery motions shall be heard and decided prior to the defendant's election of a jury or jury-waived trial. Any discovery matters pending at the time of the pretrial hearing or the compliance hearing shall be heard at that hearing. Discovery motions filed pursuant to subdivision (d)(1) after the defendant's election shall be heard and decided expeditiously.
(2) Non-Discovery Pretrial Motions. A non-discovery motion filed prior to the pretrial hearing may be heard at the pretrial hearing, at a hearing scheduled to address the motion, or at the trial session. A non-discovery motion filed at or after the pretrial hearing shall be heard at the next scheduled court date unless otherwise ordered.
(3) Within seven days after the filing of a motion, or if the motion is transmitted to the trial session within seven days after the transmittal, the clerk or the judge shall assign a date for hearing the motion, but the judge or special magistrate for cause shown may entertain such motion at any time before trial. If the parties have agreed to a mutually convenient time for the hearing of a pretrial motion, and the moving party so notifies the clerk in writing at the time of the filing of the motion, the clerk shall mark up the motion for hearing at that time subject to the approval of the court. The clerk shall notify the parties of the time set for hearing the motion.
As amended March 8, 2004, effective September 7, 2004.
(2004) This rule establishes the form of, and manner for the presentation of, pretrial motions. Not every motion that is made in a pretrial posture is governed exclusively by this rule. For example, a continuance motion is subject to the provisions of Rule 10(a)(3) and (4), and the requirements of a motion for relief from prejudicial joinder are contained in Rule 9(d). Where, however, no other rules or statutes provide otherwise, pretrial motions should be made in conformity with the provisions of this rule.
The primary sources of this rule as originally formulated are Rule 3.190 of the Florida Rules of Criminal Procedure (1974) and the existing statutory law of the Commonwealth. The rule has an abbreviated counterpart in Rule 47 of the Federal Rules of Criminal Procedure. In 2004 the rule was revised with regard to its provisions governing filing, filing deadlines, and hearings. The formal requirements concerning motions, affidavits, supporting memoranda, service and notice were unchanged in all respects. So too were the specific provisions in 13(b) and 13(c) concerning bills of particulars and motions to dismiss respectively.
Subdivision (a). Motions in general. This subdivision is derived in large part from the Florida Rule, but essentially restates existing practice and is supported in large part by Rule 9 of the Superior Court Rules (1974). The references to pretrial motions are to include pleadings in response to a motion where such exist.
Subdivision (a)(1) requires a pretrial motion to be in writing. Although an oral motion may be considered, Commonwealth v. Geoghegan, 12 Mass. App. Ct. 575, 575-76 (1981), it need not be because it violates this requirement. Commonwealth v. Pope, 392 Mass. 493, 498 n. 8 (1984).
Subdivision (a)(2) is taken from Rules 9 and 61 of the Superior Court Rules (1974). The requirement of an affidavit in support of factual assertions is supported additionally by former G.L. c. 277, § 74. (RS  c. 136, § 31). The affidavit need not be signed by the defendant but must be signed by someone with personal knowledge of the facts therein, see Commonwealth v. Santosuosso, 23 Mass. App. Ct. 310 (1986)(affidavit by counsel), except for those affidavits accompanying a motion requesting a summons for the production of documentary evidence and objects, see Commonwealth v. Lampron, 441 Mass. 265, 270-71 (2004) (an affidavit accompanying a motion requesting a summons for production of documentary evidence or objects may be based on hearsay from a reliable source, which the affidavit must identify).
The reference in subdivision (a)(3) to opposing affidavits is to apply only if there are opposing affidavits. It is not intended to require them.
Subdivision (a)(4) is taken from Rule 9 of the Superior Court Rules (1974).
Subdivision (a)(5) provides that although a motion has been once heard and denied, it may be renewed if "substantial justice requires" that action. This is appropriate where new or additional grounds are alleged which could not reasonably have been known when the motion was originally filed. See (a)(2), supra. Moreover, at times it may be necessary to renew a motion in order to preserve it for appeal. For example, the Supreme Judicial Court has held that a suppression motion was waived when counsel failed to renew it at the time the evidence was offered at trial. Commonwealth v. Acosta, 416 Mass. 279 (1993).
Subdivision (b). Bill of Particulars. Former G.L. c. 277, § 40 (St 1887, c. 436, § 2) permitted the court to require the prosecution to file particulars in order to more fully apprise the defendant or the court of the nature of the charges. This subdivision incorporates that practice into this rule.
The distinction which was drawn in the statute between particulars ordered by a court with jurisdiction over the offense charged and those ordered by a court without jurisdiction of the offense charged has not been retained in this rule. However, the judge may in his discretion order whatever particulars he deems necessary under the circumstances, and this would permit him to order a more complete statement of particulars where it is required in the interests of justice. Indeed, particulars may be constitutionally required in some cases under article 12 of the Massachusetts Declaration of Rights, which protects a defendant from having to answer charges "until the same is fully and plainly, substantially and formally, described to him." See also Commonwealth v. Baker, 368 Mass. 58, 77 (1975) (suggesting a liberal standard for granting particulars).
If the specifications supplied in conformity with the court's order are irrelevant or prejudicial, defense counsel must file a motion to strike those deemed improper. 30 Mass. Practice Series (Smith) § 1296 (1983).
Although the rule requires motions for bills of particulars to be made before trial, it is not intended to be construed so as to limit the inherent power of the court in an appropriate situation to order a bill at any time.
Subdivision (c). Motions to Dismiss or Grant Appropriate Relief. This is a restatement of former G.L. c. 277, § 47A (St 1965, c. 617, § 1). It should be noted that G.L. c. 277, § 47A abolished at least in name all the other pleas, demurrers, challenges, and motions to quash; it effectively consolidated all of them under the general heading of a motion to dismiss or grant appropriate relief, in effect retaining the statutory and common law of the Commonwealth governing such pleas. Section 47A (as amended) now provides for relief from the waiver of defenses not timely raised, upon a showing of cause.
In a criminal case, any defense or objection based upon defects in the institution of the prosecution or in the complaint or indictment, other than a failure to show jurisdiction in the court or to charge an offense, shall only be raised prior to trial and only by a motion in conformity with the requirements of the Massachusetts Rules of Criminal Procedure. The failure to raise any such defense or objection by motion prior to trial shall constitute a waiver thereof, but a judge or special magistrate may, for cause shown, grant relief from such waiver. A defense or objection based upon a failure to show jurisdiction in the court or the failure to charge an offense may be raised by motion to dismiss prior to trial, but shall be noticed by the court at any time.
Id. See also Commonwealth v. Chou, 433 Mass. 229 (2001). "Cause" should be read to include grounds of which the moving party was not previously aware. See Mass. R. Crim. P. 46(b); Commonwealth v. Bongarzone, 390 Mass. 326, 337-38 (1983). Additionally, case law and statutory law establish that certain motions and objections must be heard even if raised for the first time at trial, such as claims that the complaint or indictment fails to state a charge, or is outside the court's jurisdiction, G.L. c. 277, § 47A and Commonwealth v. Cantres, 405 Mass. 238, 239-40 (1989); that wiretap evidence should be suppressed, Commonwealth v. Picardi, 401 Mass. 1008 (1988); that a statement was taken in violation of the Miranda rule, Commonwealth v. Adams, 389 Mass. 265, 269-70 & n. 1 (1983); or that the defendant was not criminally responsible by reason of insanity, Mass. R. Crim. P. 14(b)(2).
Subdivision (d). Filing motions. This subdivision sets out the filing deadlines for pretrial motions. It was amended in 2004 to eliminate provisions relating to filing motions in the now-abolished de novo district court system, and to remove a conflict between this rule and the statutory filing deadlines subsequently established for district courts by the single-trial legislation, G.L. c. 278 § 18.
Under subdivision (d)(1), discovery motions are to be filed prior to the conclusion of the pretrial hearing, or after for good cause shown. The subdivision also specifies two specific, non-exhaustive circumstances which shall be deemed to constitute good cause. One self-evident basis is that the discovery sought could not reasonably have been requested or obtained prior to the pretrial hearing [(d)(1)(A)]. The other, specified in (d)(1)(B), allows later filing by the Commonwealth if it "could not reasonably provide all discovery due to the defense prior to the conclusion of the pretrial hearing." This asymmetrical provision is necessary because under the rules, the Commonwealth must fulfill its discovery obligations in order to receive discovery. If the Commonwealth has been unable to provide discovery prior to the pretrial hearing for good reason, it should not be prejudiced by having its reciprocal discovery rights foreclosed. Provision 13(d)(1)(ii) is necessary to preserve the Commonwealth's discovery rights in such a situation. In any event, with the institution in 2004 of automatic and comprehensive discovery without motion under Rule 14, motions for discovery should be unnecessary in many cases.
Under subdivision (d)(2), non-discovery pretrial motions are to be filed no later than 21 days after the court's assignment of a trial date or trial assignment date, unless the court permits later filing for good cause shown. (Additionally, the defendant must also provide notice of intent to defend by reason of insanity, or by reason of license or privilege, within this time period. Rule 14(b)(2) and (3), respectively). In effect, this provides 21 days after the pretrial hearing or compliance hearing, whichever is later, since under Rule 11 it is there that the trial date or trial assignment date must be set (and, in district court, a jury election or waiver must be taken, the event that commences the 21-day deadline for motions mandated by the district court single trial legislation). The time limits provided in this rule for the filing of pretrial motions are intended to set the norm. Ample opportunity is left for the court to exercise its discretion in the interest of justice, however, by the inclusion of the "for cause shown" provision in subdivisions (d)(1) and (d)(2). See also Commonwealth v. Bongarzone, supra.
A clerk is not generally empowered to refuse to accept and docket a motion without the court's express approval, but if this occurs counsel may move to have the motion docketed. Bolton v. Commonwealth, 407 Mass. 1003, 1003-4 (1990).
Subdivision (d) also makes explicit what is already implicit in Mass. R. Crim. P. 11, namely, that the only pretrial motions which may be filed are those as to the substance of which counsel were unable to agree. Counsel should ascertain whether the opposing party or parties will agree to all potential motions before or during the pretrial conference (or, if the motion could not have been anticipated until after the pretrial conference, promptly when the need for the motion becomes apparent). By requiring that the substance of any pretrial motions a party intends to file be discussed with the adverse party, this subdivision institutes a rule of judicial economy. It is contemplated that having parties compare all the motions they intend to file before trial at the pretrial conference will make the conference more productive by eliminating many "boiler plate" motions. If a conflict between this subdivision and the general filing and service of papers provisions of Rule 32 should arise, this subdivision is controlling as to motions to which it is applicable.
Subdivision (e). This subdivision provides the parties with a right to a hearing on a pretrial motion, and governs the scheduling of the hearing. Subdivision (e)(3) provides that within seven days of filing (or if the motion is transmitted to the trial session within seven days after the transmittal), the clerk should schedule the motion for hearing. However, the clerk will be guided by other provisions in subdivision (e). First, the court must afford the opposing party an adequate opportunity to prepare and submit a memorandum prior to the hearing. Second, discovery motions must be heard and decided prior to the defendant's election of a jury or jury waived trial; if any discovery motions are pending at the time of the pretrial hearing or the compliance hearing, they should be heard at that time [(e)(1)]. See Rule 11(b)(2)(iii) and (c)(3); Dist./Mun. Ct. Rule of Criminal Procedure 4(e). Third, non-discovery motions may be scheduled to be heard at the pretrial hearing, at a hearing scheduled to address the motion, or at the trial session, although the default date for motions filed at the pretrial hearing is the next scheduled court date [(e)(2)]. The clerk must notify the parties of the date assigned. This provision allows individual courts to decide how to schedule non-discovery motions. Finally, subdivision (e)(3) provides a method for the parties to agree to a mutually convenient time for hearing when the motion is filed.
Although not enumerated in the rule, precedent establishes that some motions may be heard ex parte, especially when they do not affect an interest of the opposing party or would reveal privileged or other information to which the opposing party is not entitled. For example, motions to fund indigent expenses need not be heard in the presence of the prosecution. Commonwealth v. Dotson, 402 Mass. 185, 187 (1988); Commonwealth v. Haggerty, 400 Mass. 437, 441 (1987).