In Commonwealth v. Bennefield, the SJC denied the defendant’s motion for a new trial, and the SJC ruled that the defendant’s waiver of his right to a six-person jury was valid even though it was not in writing. The basic facts are as follows. “The defendant was tried before a jury in the District Court…. During the trial, one of the six jurors was excused from service for reasons unrelated to the case.” “Defense counsel then notified the judge that the defendant wished to go forward with a five-person jury.” The judge conducted a colloquy “in which [he] informed the defendant of his right to a jury of six persons.” At the conclusion of the colloquy, “the judge found that the defendant knowingly and voluntarily waived that right.” “[T]he waiver was not in writing.” “[T]he trial continued with five jurors” and the defendant was convicted. Subsequently, he filed a motion for a new trial, “arguing that his waiver was invalid because it was not in writing.” The motion was denied and the defendant appealed.

In its decision holding that the defendant’s waiver of his right to a six-person jury was valid, the SJC opined “that a written waiver is unnecessary as long as the trial judge ensures, by way of a colloquy, that the defendant’s decision to … proceed [with fewer than six jurors] is made knowingly and voluntarily.” The Court stated, “The defendant argues that his conviction should be reversed because the existing statute and rule should be read together to require both a stipulation by the parties, and a written waiver under the statute states that “‘[n]othing in this section shall prevent the court from rendering a valid judgment based upon a verdict rendered by fewer jurors than required under this section where all parties have by stipulation agreed to this procedure.’” Rule 19(b) states that “‘[i]f after jeopardy attaches there is at any time during the progress of a trial less than a full jury remaining, a defendant may waive his right to be tried by a full jury and request trial by the remaining jurors by signing a written waiver which shall be filed with the court.’”

The SJC rejected the defendant’s position on the basis of “the legislative history of the statute and principles of statutory construction.” The Court explained that “[p]rior to the adoption of the rules of criminal procedure, waiver of the right to be tried by a full jury was governed by a former statute. However, in 1979, the Legislature repealed this statute…. Three years later, the Legislature enacted a new law which now addresses waiver of a full complement of jurors and requires only that ‘all parties have by stipulation agreed to this procedure.’” “‘Where the Legislature has deleted … language, apparently purposefully, the current version of the statute cannot be interpreted to include the rejected requirement. Reading in language that the Legislature chose to remove … violates basic principles of statutory construction and impermissibly interferes with the legislative function.’ Thus, we conclude that a waiver of the right to be tried by a full complement of jurors need not be in writing, notwithstanding rule 19(b), where the rule no longer reflects the statutory language.” However, “the trial judge must engage in a colloquy with the defendant to ensure that the waiver is, in fact, knowing and voluntary…. A colloquy … is in many ways more important than a written waiver — that is, although a colloquy can be sufficient without a written waiver, a written waiver can never be sufficient without a colloquy.”

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