An interlocutory appeal in Massachusetts is an appeal taken in the middle of a criminal case, before trial and before any verdict. Massachusetts allows these appeals in narrow situations, and in most of them the court decides whether to hear the appeal at all. Courts often say no. They prefer to let the trial happen and sort out legal errors afterward, on a regular appeal.
Two paths matter in criminal cases: Rule 15 of the Massachusetts Rules of Criminal Procedure, and the Supreme Judicial Court’s general superintendence power under Chapter 211, Section 3.
Rule 15 Covers Suppression Rulings And Dismissals
Rule 15 gives the prosecution an outright right to appeal in one situation. When a judge dismisses a complaint or indictment, or grants certain other pretrial motions for relief, the Commonwealth may appeal that decision to the Appeals Court. No permission required. The prosecution files a notice of appeal in the trial court within thirty days.
Suppression rulings work differently. Either side, the defendant or the Commonwealth, may ask to appeal a ruling on a motion to suppress before trial. The word “ask” is doing real work in that sentence. The party files a notice of appeal in the trial court and an application with a single justice of the Supreme Judicial Court, both within thirty days of the order. The other side gets fourteen days to respond. The single justice usually decides on the papers, without a hearing.
The application must include the judge’s findings and rulings, an estimate of how long the trial will take, the next scheduled court date, and a memorandum explaining why allowing the appeal would help the administration of justice. When the Commonwealth applies, it also has to say whether it still has a viable case without the suppressed evidence.
Only the Commonwealth can appeal the decision on a motion to dismiss. If you lose a motion to dismiss, your only recourse is a 211/3 petition or appealing after the case is over.
The Single Justice Decides Whether The Appeal Happens At All
This is the part people miss. The rule gives both sides the right to apply. It does not give either side the right to an appeal.
The single justice grants leave only after deciding that an immediate appeal would facilitate the administration of justice. That is a practical judgment about the case, not a ruling on who is right. A justice looking at a suppression order that affects one piece of evidence, in a case already scheduled for trial, will often conclude that the case should simply go forward.
If leave is granted, the justice may hear the appeal, or send it to the full Supreme Judicial Court or to the Appeals Court.
A denial ends it. Neither the defendant nor the Commonwealth may appeal a single justice’s refusal to allow an interlocutory appeal. For a defendant, the remedy is to go to trial and, if convicted, raise the suppression ruling on direct appeal. For the Commonwealth, a denial usually ends the road, because the prosecution cannot appeal an acquittal.
Two other limits are worth knowing. Nothing arising out of a probable cause hearing can be appealed this way. And Rule 15 stops the case in its tracks: once an appeal is taken or leave is granted, the trial is stayed until the appellate court rules, which can add many months. If the Commonwealth is the one appealing, the court may reconsider bail in the meantime.
Chapter 211, Section 3 Covers Everything Else
Rule 15 reaches only dismissals and suppression rulings. For any other pretrial order, such as a discovery ruling, a disqualification order, or an order releasing privileged records, the route is a petition to a single justice under Chapter 211, Section 3. That statute gives the Supreme Judicial Court general superintendence over the lower courts to correct errors when no other remedy exists.
Courts describe this power as extraordinary and reserved for exceptional circumstances. A petitioner must show two things: a substantial claim that a substantive right was violated, and that ordinary appellate review cannot fix the problem. That second requirement defeats most petitions. If the issue can be raised after a conviction, the court will tell you to raise it after a conviction.
Double jeopardy is the classic claim that clears the bar. A defendant arguing that a second trial is unconstitutional loses the entire benefit of that right by sitting through the trial. Similar logic applies to orders handing over privileged material, because disclosure cannot be undone.
If the single justice denies the petition, the losing party has seven days to file a notice of appeal to the full court, with a short memorandum explaining why waiting for a final judgment is not good enough. The trial is not stayed while that appeal is pending unless a court orders it.
Why Massachusetts Courts Resist Interlocutory Appeals
Massachusetts courts disfavor piecemeal appeals. Every pretrial appeal halts a case, consumes appellate resources, and delays resolution for the defendant, the witnesses, and everyone else involved. The default is to resolve everything once, at the end.
A third option exists. A trial judge who considers a legal question important or doubtful enough may report it to the Appeals Court, and the trial is continued until the question is answered. That path depends entirely on the judge’s willingness to use it.
The practical takeaway is that a bad pretrial ruling is rarely the last word, but it is also rarely fixed right away. Preserve the issue, keep building the record, and treat interlocutory review as a possibility rather than a plan.
Pretrial rulings shape criminal cases more than most people expect, and deciding whether to seek an immediate appeal involves real tradeoffs in time, cost, and strategy. If you are facing criminal charges in Eastern Massachusetts, the Law Office of Matthew Peterson offers free consultations. Call or text 617-295-7500, or send us a message below.
