oral waiver in Massachusetts

1997In Gallo v. Commonwealth, 343 Mass. 397 (1961), the case upon which the defendant relies to argue that his oral waiver of a jury trial should be considered ineffectual because it was unaccompanied by a written waiver signed and filed with the court, an oral waiver by counsel of the defendant’s right to twelve jurors was held to be ineffectual because it was unaccompanied by a written waiver.

1982See Gallo v. Commonwealth, 343 Mass. 397, 402 (1961). 7 We note also that under Rule 3 of the District Court Department Supplemental Rules of Criminal Procedure (effective February 1,1981), cited by the Commonwealth, “[t]he court shall not. . . make a finding of guilty upon the defendant admitting to a finding of facts sufficient to warrant the same, unless it is satisfied that there is a factual basis for such . . . finding.” In light of the third District Court judge’s statement that he was unable to ascertain what, if anything, was presented to the second judge prior to the continuance with

2008While a written waiver (of a jury trial) is an important procedural safeguard deemed necessary by the Legislature to preserve trial by jury as a “basic and fundamental right in our judicial system,” Commonwealth v. Osborne, 445 Mass. 776, 780 (2006) (citing G.

2006It argues, however, that neither prescribes a remedy for violations of the requirement of a written waiver, and urges us to adopt the same “substantial risk of a miscarriage of justice” standard for reversal that we adopted in Commonwealth v. Collado, supra at 678 (“in noncapital cases, an unintentional violation of either G.

2003See Commonwealth v. Hilaire, supra at 815 .

2002The oral warning given during the colloquy did not satisfy the statute’s requirements, as the judge merely told the defendant that “a finding of guilty in these cases could affect [his] status.” In Commonwealth v. Soto, 431 Mass. 340, 342 (2000), we held that “[i]t is incumbent on the judge to notify a defendant that there are three specific consequences to a plea: (1) deportation; (2) exclusion of admission to the United States; and (3) denial of naturalization.

2002A defendant must be advised of all three consequences of his plea.” In that case, the defendant, who had pleaded guilty to a narcotics charge in 1990, moved to vacate his plea seven years later after the INS initiated proceedings to exclude him from the United States as an “arriving alien.” Id. at 341 .

1997See Commonwealth v. Duquette, 386 Mass. 834 , 840 n.6 (1982) (an oral waiver by a defendant of his right to a jury trial will not be valid in the face of the method for waiver prescribed by statute).

1984See Glassman v. Barron, 277 Mass. 376, 382 (1931); 6 Wig- *673 more, Evidence § 1770 (Chadbourn rev. 1976); Liacos, Handbook of Massachusetts Evidence 265 (5th ed. 1981); McCormick, Evidence § 249 (2d ed. 1972); Hughes, Evidence § 453(1) (1961).