#Colloquy defendant trial#
504, 509-511 (1979), we held that a "colloquy shall be held in any instance of a waiver of the right to trial by jury." The trial judge, unaware of this ruling, neglected to conduct such a colloquy, and the prosecutor, similarly unaware of this necessity, failed to bring this omission to the attention of the judge. Before the start of his trial, the defendant signed a waiver of jury trial form which stated: "Under the provisions of General Laws Chapter 263, Section 6, I hereby waive my right to trial by jury." The defendant was indicted on five indictments charging five counts of indecent assault and battery on a child under fourteen years of age, four counts of dissemination of matter harmful to minors, and three counts of rape with the use of force. We granted the defendant's application for further appellate review and reverse the judgments of the Superior Court. The Appeals Court ruled that in the particular circumstances of this case the omission was harmless and affirmed the convictions, 39 Mass. The trial judge failed to conduct a colloquy with the defendant before accepting a waiver of his right to trial by jury tendered by his counsel. Leahy for Massachusetts Association of Criminal Defense Lawyers & another, amici curiae, submitted a brief.įRIED, J. Mary O'Neil, Assistant District Attorney, for the Commonwealth.Įlizabeth A.
Brady, J.Īfter review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. INDICTMENTS found and returned in the Superior Court Department on October 21, 1992, and February 10, 1993, respectively. The failure of the judge in a criminal case to conduct a colloquy with the defendant regarding the voluntariness of his waiver of a trial by jury is not susceptible of the argument that the error was harmless.
In the circumstances of a criminal case in which the judge and prosecutor were unaware of the necessity for the judge to conduct a colloquy with the defendant with respect to the voluntariness of the defendant's waiver of his right to trial by jury and in which defense counsel knew about the colloquy requirement and chose not to request such a colloquy, the purpose of the colloquy requirement, to assure that the defendant himself made the ultimate decision regarding the waiver, mandated that the defendant be granted a new trial. This court concluded that a postconviction colloquy between the judge and a criminal defendant, on the issue of the voluntariness of the defendant's waiver of a jury trial, would be ineffective to remedy an omission of the colloquy at the time of the waiver. This court declined to determine the voluntariness of a criminal defendant's waiver of jury trial from a consideration of the entire record of the case in circumstances in which the judge had omitted to conduct the colloquy required on the issue of such waiver by Ciummei v. Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, & FRIED, JJ.
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