A preliminary draft of proposed amendments to the Federal Rules of Appellate, Bankruptcy, and Criminal Procedure, the Federal Rules of Evidence, the Rules Governing Section 2254 Cases in the United States District Courts, and the Rules Governing Section 2255 Proceedings for the United States District Courts has been released. All written comments are due by February 15, 2018. A summary of relevant amendments implicating criminal defense issues is below:
Proposed Amendments to the Federal Rules of Appellate Procedure. Rule 3. In Subdivision (d), the amendment would change the words “mailing” and “mails” to “sending” and “sends,” and delete language requiring certain forms of service, to allow electronic service.
Proposed Amendments to the Federal Rules of Appellate Procedure. Rule 26.1. The new subdivision (b) follows amendments to Criminal Rule 12.4(a)(2). It requires disclosure of organizational victims in criminal cases because a judge might have an interest in one of the victims. But the disclosure requirement is relaxed in situations in which disclosure would be overly burdensome to the government. The amendment also changes “corporate disclosure statement” to “disclosure statement.”
Proposed Amendments to the Federal Rules of Appellate Procedure. Rules 28 and 32. The phrase “corporate disclosure statement” is changed to “disclosure statement” to reflect the revision of Rule 26.1.
Proposed Amendments to the Federal Rules of Criminal Procedure. Rule 16.1. Rule 16.1 would provide that no later than 14 days after the arraignment the attorneys for the government and the defendant must confer, and try to agree on a timetable and procedures for pretrial disclosure under Rule 16. Subsection (b) of the proposed rule would allow one or more parties to request that the court modify the timing, manner, or other aspects of the disclosure to facilitate trial preparation.
Proposed Amendments to the Federal Rules of Evidence. Rule 807. Residual Exception. The amendment requires the court to consider corroborating evidence in the trustworthiness enquiry. The amendment also changes the notice provision by: (1) requiring the proponent to disclose the substance of the statement; (2) requiring that the pretrial notice be in writing, which is satisfied by notice in electronic form; and (3) providing for a good cause exception, the same exception found in Rule 404(b).
Proposed Amendment to the Rules Governing Section 2254 Cases in the United States District Courts. Rule 5. In Subsection (e), the amendment would make clear that the petitioner has the right to file a reply to the respondent’s answer or other pleading – some decisions have held that courts retain the authority to bar a reply. The amendment would also clarify that the court must set the time to file the reply unless the time is already set by local rule.
Proposed Amendment to the Rules Governing Section 2255 Proceedings for the United States District Courts. Rule 5. In Subsection (d), the amendment would make clear that the petitioner has the right to file a reply to the respondent’s answer or other pleading – some decisions have held that courts retain the authority to bar a reply. The amendment would also clarify that the court must set the time to file the reply unless the time is already set by local rule.
Click here for the proposed amendments.