(concurring). I agree entirely with the court. I write separately only to register my concerns about the concurring opinion that challenges the probable cause standard set forth in Myers v. Commonwealth, 363 Mass. 843 (1973). The concurrence acknowledges, as it must, that the issue it addresses — whether the Myers standard should be changed — was not raised or briefed by either side and is not essential to the resolution of this case. Ante at 112. It nevertheless goes on to discuss the issue in considerable detail and makes the case that the standard should be changed. This obviously would represent a significant change in Massachusetts law.
I do not think this court does its best work when we make up our minds and stake out our positions on significant legal issues like this, before the issues have even been raised by the parties, brought before us, and briefed and argued for our consideration.1 As an appellate court in an adversarial system, our principal responsibility is to consider the cases on appeal as they are presented to us by the parties; the very definition of an adversary system is that the parties, through their written and oral arguments, crystallize the issues for our consideration, and we then consider, digest, analyze, and test those arguments as we decide the cases. There are sound, time-tested reasons for this approach, not the least of which is that our decisions are better informed when the rules of law we discuss and apply (and sometimes cre*114ate or modify) have been vetted through the adversarial process of trial and appeal.2 See F.M. Coffin, On Appeal: Courts, Law-yering, and Judging 258 (W.W. Norton & Co. 1994) (identifying “five fundamental features of our American appellate system that work to confine judicial discretion”).
Of course there are times when we might need to address an issue that was not raised and preserved in the trial court; or when we might discuss an issue that is not absolutely necessary to the disposition of the appeal; or when we might decide the occasional moot case, where the issues are important and would otherwise escape appellate review. But even then we should be chary about discussing and deciding issues without the benefit of hearing both sides.
That said, and even though I was one of the counsel of record for the prevailing petitioner in the Myers case, I am not averse to revisiting that decision if and when it becomes appropriate to do so. I will wait to hear the arguments from both sides, however, and from any amici who might have information to contribute, before I reach any conclusions about whether the Myers standard should be retained or changed.
I note that none of the eleven attorneys who submitted affidavits in support of the defendant’s petition pursuant to G. L. c. 211, § 3, stated that he or she was concerned with the standard set forth in Myers v. Commonwealth, 363 Mass. 843 (1973). The concern was that, in practice, no probable cause hearings were held and that continuances were granted as a matter of course. Indeed, one attorney set forth the advantages that accrued in counties where probable cause hearings were held, averring, “[T]he hearings were usually beneficial to both parties, allowing for greater and prompter discovery for the defense and . . . prosecution, allowing for testimony to be preserved, and providing an opportunity ... to weed out weak cases. . . . The defense was also better informed of the evidence, and . . . benefit[ted] by actually seeing the witnesses and evidence.” See Myers v. Commonwealth, supra at 847-848, quoting Coleman v. Alabama, 399 U.S. 1, 9 (1970) (advantages of preliminary hearing are exposing weaknesses in State’s case, using testimony to create impeachment tool for trial, discovering State’s case in order to prepare effective defense, and making effective arguments for accused).
For example, the concurrence states that a “substantial majority of jurisdictions” does not use the directed verdict standard set forth in Myers v. Commonwealth, supra at 850. Ante at 109 & n.5. I point out that the court in the Myers case based the directed verdict standard on a study by the American Bar Association and on the draft of a model code. Myers v. Commonwealth, supra at 850 n.7, citing F. Miller, Prosecution: The Decision to Charge a Suspect With Crime (“this ‘directed verdict’ definition of probable cause is the most common screening standard practised in other States which have probable cause hearings”), and Graham & Letwin, The Preliminary Hearing in Los Angles, 18 UCLA L. Rev. 636, and American Law Institute, A Model Code of Pre-Arraignment Procedure (Tent. Draft No. 5) § 330.5(3) (“[Probable] cause to hold the defendant for trial exists . . . when the evidence introduced at the preliminary hearing would support a guilty verdict”). This seeming discrepancy presumably would have been vetted fully if the directed verdict standard was before the court. In addition, according to a memorandum of law that the defendant submitted in support of his petition for extraordinary relief pursuant to G. L. c. 211, § 3, many of the jurisdictions cited by the concurrence as having rejected the directed verdict standard have statutes or rules that, unlike the Commonwealth, have a very short time frame (fourteen days) for holding a probable cause hearing, or require the prosecution to demonstrate good cause or extraordinary circumstances to justify delay or continuance. The degree to which the rejection of a directed verdict standard is related to the existence of these rules and statutes would also have been vetted if the issue was properly before this court.