[Disclaimer]
(a) Issuance of Process.
(1) Summons. A defendant not under arrest or otherwise in custody shall, except as provided in subdivision (a)(2) of this rule, be notified of the criminal proceedings against him and of the date of the return day by means of a summons. A copy of the complaint or indictment shall accompany the summons. If the accused is a juvenile, a summons and copy of the complaint or indictment shall also be served upon the parent or legal guardian of the juvenile or upon the person with whom the juvenile resides. Such notice shall also advise the defendant to report in person to the probation department before the return day.
(2) Warrant. The District Court may authorize the issuance of a warrant in any case except where the accused is a juvenile less than twelve years of age. Upon the return of an indictment against a defendant, the Superior Court may authorize the issuance of a warrant. The decision to issue a warrant may be based upon the representation of a prosecutor made to the court that the defendant may not appear unless arrested. If a defendant fails to appear in response to a summons or for any reason is not amenable to service, the prosecutor may request that a warrant issue or may resummon the defendant.
(b) Form.
(1) Warrant. An arrest warrant issued pursuant to this rule shall be signed by the official issuing it and shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. The warrant shall recite the substance of the offense charged in the complaint or indictment. It shall command that the defendant be arrested and brought before the court.
(2) Summons. A summons shall be in the same form as a warrant except that it shall summon the defendant to appear before the court at a stated time and place.
(c) Service or Execution; Return.
(1) By Whom. A summons may be served in the manner provided by subdivision (c)(3) of this rule by any person authorized by the General Laws to serve criminal process. A warrant shall be directed to and executed by an officer authorized by the General Laws to serve criminal process.
(2) Territorial Limits. A summons may be served or a warrant executed at any place within the Commonwealth.
(3) Manner. A summons shall be served upon a defendant by delivering a copy to him personally, or by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by mailing it to the defendant's last known address. A warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in his possession at the time of the arrest, but upon request he shall show the warrant to the defendant as soon as possible. If the officer does not have the warrant in his possession at the time of the arrest, he shall then inform the defendant that a warrant has issued and of the offense charged, but if the officer does not then know of the offense charged, he shall inform the defendant thereof within a reasonable time after arrest.
(4) Return. On or before the return day, the person to whom a summons was delivered for service shall make return thereof to the issuing court. The clerk shall maintain a list of those summonses returned unserved which shall include a statement of the efforts made by the person to whom the summonses were delivered for service to serve them. If a summons is mailed pursuant to subdivision (c)(3) of this rule and returned, the clerk shall record that fact upon the list. The officer executing a warrant shall make return thereof to the issuing court. At the request of the prosecutor any unexecuted warrant shall be returned to the issuing court and may be cancelled by that court upon its own motion or upon the motion of the prosecutor. At the request of the prosecutor made at any time while a complaint or an indictment is pending, a summons returned unserved or a warrant returned unexecuted and not cancelled may be delivered to an authorized person for service or execution.
(d) Default.
(1) Costs. A judge may order that expenses incurred as a result of the entry of a default against a defendant are to be assessed as costs against the defendant.
(2) Preservation of Testimony. If counsel for a defendant is present upon the entry of a default against the defendant and if the judge finds that to require the attendance at a later time of a witness then present in court would constitute a hardship upon the witness because of age, infirmity, illness, profession or other sufficient reason, the judge may order that the testimony of the witness be taken and preserved for subsequent use at trial or any other proceeding. The witness shall be examined in open court by the party on whose behalf he is present and the adverse party shall have the right of cross-examination. The expense of taking and preserving the testimony may be assessed as costs against the defendant.
