M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: N.D.R.Crim.P. 33; New Trial
Rule 33, Fed.R.Crim.P., was amended effective December 1, 1998. The amendment clarifies when the time starts to run for moving for a new trial based on newly discovered evidence. Under the amended rule, the event commencing the time running for moving for a new trial is the "verdict or finding of guilty." Under the old rule, the event which commenced the time running for moving for a new trial was the "final judgment."
Using the "final judgment" as the starting time for the period during which a motion for a new trial could be made caused confusion. It was unclear whether the "final judgment" being referred to was the final judgment of the trial court or the appellate court. In answer, federal courts have uniformly held the language refers to the action of the court of appeals. See, e.g., United States v. Reyes, 49 F.3d 63, 66 (2nd Cir. 1995) (citing cases).
It was also unclear whether the action being referred to was the appellate court's judgment or the issuance of its mandate. See Committee Note, Fed.R.Crim.P. 33.
The federal amendment also extends the time from two years to three years for moving for a new trial based on newly discovered evidence. The time was extended to compensate for the lesser amount of time a defendant would otherwise have under the amended rule. Under the amended rule, the time period starts running sooner; because, the time starts to run from the "verdict or finding of guilty" rather than the judgment or mandate of the court of appeals.
Like the former federal rule, N.D.R.Crim.P. 33(b) provides any motion for a new trial must be made "within two years after final judgment." Should North Dakota's rule be amended to provide the time runs from the "verdict or finding of guilty" as does the federal rule instead of the "judgment"? Should North Dakota's rule be amended to allow the motion to be made within three years as does the federal rule instead of two years?