FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
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Rules Table of Contents
TITLE IX General Provisions (Fed. Rules Crim. Proc. 43-60)
Rule
43 Defendant’s Presence
Rule 44
Right to and Appointment of Counsel
Rule 45
Computing and Extending Time
Rule 46
Release from Custody; Supervising Detention
Rule 47
Motions and Supporting Affidavits
Rule 48
Dismissal
Rule 49
Service And Filing Papers
Rule 49.1
Privacy Protection For Filings Made With The Court
Rule 50
Prompt Disposition
Rule 51
Preserving Claimed Error
Rule 52
Harmless Error And Plain Error
Rule 53
Courtroom Photographing and Broadcasting Prohibited
Rule 54
[Transferred]
Rule 55
Records
Rule 56
When Court Is Open
Rule 57
District Court Rules
Rule 58
Petty Offenses and Other Misdemeanors
Rule 59
Matters Before a Magistrate Judge
Rule 60
Title
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 43 Defendant’s Presence
(a) When Required. Unless this rule, Rule 5, or Rule 10 provides otherwise, the defendant must be present at:
(1) the initial appearance, the initial arraignment, and the plea;
(2) every trial stage, including jury impanelment and the return of the verdict; and
(3) sentencing.
(b) When Not Required. A defendant need not be present under any of the following circumstances:
(1) Organizational Defendant. The defendant is an organization represented by counsel who is present.
(2) Misdemeanor Offense. The offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant’s written consent, the court permits arraignment, plea, trial, and sentencing to occur in the defendant’s absence.
(3) Conference or Hearing on a Legal Question. The proceeding involves only a conference or hearing on a question of law.
(4) Sentence Correction. The proceeding involves the correction or reduction of sentence under Rule 35 or 18 USC 3582(c).
(c) Waiving Continued Presence.
(1) In General. A defendant who was initially present at trial, or who had pleaded guilty or nolo contendere, waives the right to be present under the following circumstances:
(A) when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial;
(B) in a noncapital case, when the defendant is voluntarily absent during sentencing; or
(C) when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom.
(2) Waiver's Effect. If the defendant waives the right to be present, the trial may proceed to completion, including the verdict’s return and sentencing, during the defendant’s absence.
History:
(Dec. 26, 1944, eff. March 21, 1946, as amended April 22, 1974, eff. Dec. 1,
1975; Act July 31, 1975, P.L. 94-64, §§ 2, 3(35), 89 Stat. 370, 376, eff. Dec.
1, 1975; eff. Aug. 1, 1987; Dec. 1, 1995; as amended Dec. 1, 1998; Dec. 1,
2002.)
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ 2.6 [Presence Of Defendant Re: Instructions].
See FORECITE National™ 284.1.5 [Readback: Should Be Conducted In Open Court And In The Presence OfCounsel And Defendant].
See FORECITE National™ 284.1.6 [Can Presence Of Defendant And Counsel At Readback Be Waived By Capital Defendant?].
See FORECITE National™ 285.1.5 [Supplemental Instructions: Presence Of Counsel And Defendant].
See FORECITE National™ 287.5.4 [Jury Poll: Presence Of Counsel And Defendant].
See FORECITE National™ 300.15 [Constitutional Claims: Presence Of Defendant At Trial].
COMMITTEE NOTE - 2002 REVISIONS
The language of Rule 43 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
REPORTER’S NOTES - 2002 REVISIONS
In publishing the "style" changes to the Federal Rules of Criminal Procedure, the Committee decided to publish separately any rule that includes what it considered at least one major substantive change. The purpose for this separate publication is to highlight for the bench and the bar any proposed amendments that the Committee believes will result in significant changes in current practice. Rule 43 was one of those rules. Another version of Rule 43, which recognizes that the proposed Rules 5 and 10 would authorize video teleconferencing of certain proceedings, is included in the "substantive" package. [On April 29, 2002, the Supreme Court approved the version of the rule contained in the "substantive" package.]
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 44 Right to and Appointment of Counsel
(a) Right to Appointed Counsel. A defendant who is unable to obtain counsel is entitled to have counsel appointed to represent the defendant at every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right.
(b) Appointment Procedure. Federal law and local court rules govern the procedure for implementing the right to counsel.
(c) Inquiry Into Joint Representation.
(1) Joint Representation. Joint representation occurs when:
(A) two or more defendants have been charged jointly under Rule 8(b) or have been joined for trial under Rule 13; and
(B) the defendants are represented by the same counsel, or counsel who are associated in law practice.
(2) Court's Responsibilities in Cases of Joint Representation. The court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendant’s right to counsel.
History:
(Dec. 26, 1944, eff. March 21, 1946, as amended Feb. 28, 1966, eff. July 1,
1966; April 24, 1972, eff. Oct. 1, 1972; April 30, 1979; eff. Dec. 1, 1980, as
provided by Act July 31, 1979, P.L. 96-42, § 1(1), 93 Stat. 362; Aug. 1, 1987;
Dec. 1, 1993; as amended Dec. 1, 2002.)
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ 300.27.1.2 [Effective Assistance Of Counsel: Right To Communication With Counsel At Trial].
See also FORECITE National™ 300.27.1.3 [Constitutional Claims: Right To Presence Of Counsel At Trial].
See also FORECITE National™ Constitutional Macro 309.11.3 [Right To Effective Representation Or Counsel].
COMMITTEE NOTE - 2002 REVISIONS
The language of Rule 44 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
Revised Rule 44 now refers to the "appointment" of counsel, rather than the assignment of counsel; the Committee believed the former term was more appropriate. See 18 USC 3006A. In Rule 44(c), the term "retained or assigned" has been deleted as being unnecessary, without changing the court’s responsibility to conduct an inquiry where joint representation occurs.
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 45 Computing and Extending Time
(a) Computing Time. The following rules apply in computing any period of time specified in these rules, any local rule, or any court order:
(1) Day of the Event Excluded. Exclude the day of the act, event, or default that begins the period.
(2) Exclusion from Brief Periods. Exclude intermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days.
(3) Last Day. Include the last day of the period unless it is a Saturday, Sunday, legal holiday, or day on which weather or other conditions make the clerk’s office inaccessible. When the last day is excluded, the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day when the clerk’s office is inaccessible.
(4) "Legal Holiday" Defined. As used in this rule, ‘‘legal holiday’’ means:
(A) the day set aside by statute for observing:
(i) New Year’s Day;
(ii) Martin Luther King, Jr.’s Birthday;
(iii) Washington’s Birthday;
(iv) Memorial Day;
(v) Independence Day;
(vi) Labor Day;
(vii) Columbus Day;
(viii) Veterans’ Day;
(ix) Thanksgiving Day;
(x) Christmas Day; and
(B) any other day declared a holiday by the President, the Congress, or the state where the district court is held.
(b) Extending Time.
(1) In General. When an act must or may be done within a specified period, the court on its own may extend the time, or for good cause may do so on a party’s motion made:
(A) before the originally prescribed or previously extended time expires; or
(B) after the time expires if the party failed to act because of excusable neglect.
(2) Exception. The court may not extend the time to take any action under Rule 35, except as stated in that rule.
(c) Additional Time After Certain Kinds of Service. Whenever a party must or may act within a specified period after service and service is made in the manner provided under Federal Rule of Civil Procedure 5(b)(2)(B), (C), or (D), 3 days are added after the period would otherwise expire under subdivision (a).
History:
(Dec. 26, 1944, eff. March 21, 1946, as amended Feb. 28, 1966, eff. July 1,
1966; Dec. 4, 1967, eff. July 1, 1968; March 1, 1971, eff. July 1, 1971; eff.
Aug. 1, 1982; Aug. 1, 1985; Aug. 1, 1987; as amended Dec. 1, 2002; Dec. 1, 2005;
Dec. 1, 2007.)
COMMITTEE NOTE - 2002 REVISIONS
The language of Rule 45 has been amended
as part of the general restyling of the Criminal Rules to make them more easily
understood and to make style and terminology consistent throughout the rules.
These changes are intended to be stylistic only.
Rule 45(d), which governs the timing of written motions and affidavits, has been moved to Rule 47.
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 46 Release from Custody; Supervising Detention
(a) Before Trial. The provisions of 18 USC 3142 and 3144 govern pretrial release.
(b) During Trial. A person released before trial continues on release during trial under the same terms and conditions. But the court may order different terms and conditions or terminate the release if necessary to ensure that the person will be present during trial or that the person’s conduct will not obstruct the orderly and expeditious progress of the trial.
(c) Pending Sentencing or Appeal. The provisions of 18 USC 3143 govern release pending sentencing or appeal. The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant.
(d) Pending Hearing on a Violation of Probation or Supervised Release. Rule 32.1(a)(6) governs release pending a hearing on a violation of probation or supervised release.
(e) Surety. The court must not approve a bond unless any surety appears to be qualified. Every surety, except a legally approved corporate surety, must demonstrate by affidavit that its assets are adequate. The court may require the affidavit to describe the following:
(1) the property that the surety proposes to use as security;
(2) any encumbrance on that property;
(3) the number and amount of any other undischarged bonds and bail undertakings the surety has issued; and
(4) any other liability of the surety.
(f) Bail Forfeiture.
(1) Declaration. The court must declare the bail forfeited if a condition of the bond is breached.
(2) Setting Aside. The court may set aside in whole or in part a bail forfeiture upon any condition the court may impose if:
(A) the surety later surrenders into custody the person released on the surety’s appearance bond; or
(B) it appears that justice does not require bail forfeiture.
(3) Enforcement.
(A) Default Judgment and Execution. If it does not set aside a bail forfeiture, the court must, upon the government’s motion, enter a default judgment.
(B) Jurisdiction and Service. By entering into a bond, each surety submits to the district court’s jurisdiction and irrevocably appoints the district clerk as its agent to receive service of any filings affecting its liability.
(C) Motion to Enforce. The court may, upon the government’s motion, enforce the surety’s liability without an independent action. The government must serve any motion, and notice as the court prescribes, on the district clerk. If so served, the clerk must promptly mail a copy to the surety at its last known address.
(4) Remission. After entering a judgment under Rule 46(f)(3), the court may remit in whole or in part the judgment under the same conditions specified in Rule 46(f)(2).
(g) Exoneration. The court must exonerate the surety and release any bail when a bond condition has been satisfied or when
the court has set aside or remitted the forfeiture. The court must exonerate a surety who deposits cash in the amount of the bond
or timely surrenders the defendant into custody.
(h) Supervising Detention Pending Trial.
(1) In General. To eliminate unnecessary detention, the court must supervise the detention within the district of any defendants awaiting trial and of any persons held as material witnesses.
(2) Reports. An attorney for the government must report biweekly to the court, listing each material witness held in custody for more than 10 days pending indictment, arraignment, or trial. For each material witness listed in the report, an attorney for the government must state why the witness should not be released with or without a deposition being taken under Rule 15(a).
(i) Forfeiture of Property. The court may dispose of a charged offense by ordering the forfeiture of 18 USC 3142(c)(1)(B)(xi) property under 18 USC 3146(d), if a fine in the amount of the property’s value would be an appropriate sentence for the charged offense.
(j) Producing a Statement.
(1) In General. Rule 26.2(a)–(d) and (f) applies at a detention hearing under 18 USC 3142, unless the court for good cause rules otherwise.
(2) Sanctions for Not Producing a Statement. If a party disobeys a Rule 26.2 order to produce a witness’s statement, the court must not consider that witness’s testimony at the detention hearing.
History:
(Dec. 26, 1944, eff. March 1, 1946, as amended April 9, 1956, eff. 90 days after
April 9, 1956; Feb. 28, 1966, eff. July 1, 1966; April 24, 1972, eff. Oct. 1,
1972; Oct. 12, 1984, P.L. 98-473, Title II, Ch I, § 209(d), 98 Stat. 1987;
amended eff. Aug. 1, 1987; Dec. 1, 1991; Dec. 1, 1993; Sept. 13, 1994; P.L.
103-322, Title XXXIII, § 330003(h), 108 Stat. 2141; as amended Dec. 1, 2002.)
COMMITTEE NOTE - 2002 REVISIONS
The language of Rule 46 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below.
Although the general rule is that an appeal to a circuit court deprives the district court of jurisdiction, Rule 46(c) recognizes the apparent exception to that rule — that the district court retains jurisdiction to decide whether the defendant should be detained, even if a notice of appeal has been filed. See, e.g., United States v. Meyers, 95 F.3d 1475 (10th Cir. 1996), cert. denied, 522 U.S. 1006 (1997) (initial decision of whether to release defendant pending appeal is to be made by district court); United States v. Affleck, 765 F.2d 944 (10th Cir. 1985); Jago v. United States District Court, 570 F.2d 618 (6th Cir. 1978) (release of defendant pending appeal must first be sought in district court). See also Federal Rule of Appellate Procedure 9(b) and the accompanying Committee Note.
Revised Rule 46(h) deletes the requirement that the attorney for the government file bi-weekly reports with the court concerning the status of any defendants in pretrial detention. The Committee believed that the requirement was no longer necessary in light of the Speedy Trial Act provisions. 18 USC 3161, et seq. On the other hand, the requirement that the attorney for the government file reports regarding detained material witnesses has been retained in the rule.
Rule 46(i) addresses the ability of a court to order forfeiture of property where a defendant has failed to appear as required by the court. The language in the current rule, Rule 46(h), was originally included by Congress. The new language has been restyled with no change in substance or practice intended. Under this provision, the court may only forfeit property as permitted under 18 USC 3146(d) and 3142(c)(1)(B)(xi). The term "appropriate sentence" means a sentence that is consistent with the Sentencing Guidelines.
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 47 Motions and Supporting Affidavits
(a) In General. A party applying to the court for an order must do so by motion.
(b) Form and Content of a Motion. A motion—except when made during a trial or hearing—must be in writing, unless the court permits the party to make the motion by other means. A motion must state the grounds on which it is based and the relief or order sought. A motion may be supported by affidavit.
(c) Timing of a Motion. A party must serve a written motion—other than one that the court may hear ex parte—and any hearing notice at least 5 days before the hearing date, unless a rule or court order sets a different period. For good cause, the court may set a different period upon ex parte application.
(d) Affidavit Supporting a Motion. The moving party must serve any supporting affidavit with the motion. A responding party must serve any opposing affidavit at least one day before the hearing, unless the court permits later service.
History:
(Dec. 26, 1944, eff. March 21, 1946; as amended Apr. 29, 2002, eff. Dec. 1, 2002.)
COMMITTEE NOTE - 2002 REVISIONS
The language of Rule 47 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below.
In Rule 47(b), the word "orally" has been deleted. The Committee believed, first, that the term should not act as a limitation on those who are not able to speak orally and, second, a court may wish to entertain motions through electronic or other reliable means. Deletion of the term also comports with a similar change in Rule 26, regarding the taking of testimony during trial. In place of that word, the Committee substituted the broader phrase "by other means."
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 48 Dismissal
(a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.
(b) By the Court. The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in:
(1) presenting a charge to a grand jury;
(2) filing an information against a defendant; or
(3) bringing a defendant to trial.
History:
(Dec. 26, 1944, eff. March 21, 1946; as amended Apr. 29, 2002, eff. Dec. 1, 2002.)
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ 16.17.1 [Partial Dismissal Of Charges Against Defendant: Cautionary Instructions].
See FORECITE National™ 287.4.4 [Partial Verdict: Dismissal Of Greater Offense In Response To Deadlock].
COMMITTEE NOTE - 2002 REVISIONS
The language of Rule 48 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
The Committee considered the relationship between Rule 48(b) and the Speedy Trial Act. See 18 USC 3161, et seq. Rule 48(b), of course, operates independently from the Act. See, e.g., United States v. Goodson, 204 F.3d 508 (4th Cir. 2000) (noting purpose of Rule 48(b)); United States v. Carlone, 666 F.2d 1112, 1116 (7th Cir. 1981) (suggesting that Rule 48(b) could provide an alternate basis in an extreme case to dismiss an indictment, without reference to Speedy Trial Act); United States v. Balochi, 527 F.2d 562, 563-64 (4th Cir. 1976) (per curiam) (Rule 48(b) is broader in compass). In re-promulgating Rule 48(b), the Committee intends no change in the relationship between that rule and the Speedy Trial Act.
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 49 Service and Filing Papers
(a) When Required. A party must serve on every other party any written motion (other than one to be heard ex parte), written notice, designation of the record on appeal, or similar paper.
(b) How Made. Service must be made in the manner provided for a civil action. When these rules or a court order requires or permits service on a party represented by an attorney, service must be made on the attorney instead of the party, unless the court orders otherwise.
(c) Notice of a Court Order. When the court issues an order on any post-arraignment motion, the clerk must provide notice in a manner provided for in a civil action. Except as Federal Rule of Appellate Procedure 4(b) provides otherwise, the clerk’s failure to give notice does not affect the time to appeal, or relieve—or authorize the court to relieve—a party’s failure to appeal within the allowed time.
(d) Filing. A party must file with the court a copy of any paper the party is required to serve. A paper must be filed in a manner provided for in a civil action.
History:
(Dec. 26, 1944, eff. March 21, 1946, as amended Feb. 28, 1966, eff. July 1,
1966; Dec. 4, 1967, eff. July 1, 1968; August 1, 1985; Aug. 1, 1987; Dec. 1,
1993; April 27, 1995, eff. Dec. 1, 1995; Apr.
29, 2002, eff. Dec. 1, 2002.)
COMMITTEE NOTE - 2002 REVISIONS
The language of Rule 49 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules.
Rule 49(c) has been amended to reflect proposed changes in the Federal Rules of Civil Procedure that permit (but do not require) a court to provide notice of its orders and judgments through electronic means. See Federal Rules of Civil Procedure 5(b) and 77(d). As amended, Rule 49(c) now parallels a similar extant provision in Rule 49(b), regarding service of papers.
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 49.1 Privacy Protection For Filings Made With The Court
(a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual's social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, a financial-account number, or the home address of an individual, a party or nonparty making the filing may include only:
(1) the last four digits of the social-security number and taxpayer-identification number;
(2) the year of the individual's birth;(3) the minor's initials;
(4) the last four digits of the financial-account number; and
(5) the city and state of the home address.
(b) Exemptions from the Redaction Requirement. The redaction requirement does not apply to the following:
(1) a financial-account number or real property address that identifies the property allegedly subject to forfeiture in a forfeiture proceeding;
(2) the record of an administrative or agency proceeding;
(3) the official record of a state-court proceeding;
(4) the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed;
(5) a filing covered by Rule 49.1(d);
(6) a pro se filing in an action brought under 28 U.S.C. §§ 2241, 2254, or 2255;
(7) a court filing that is related to a criminal matter or investigation and that is prepared before the filing of a criminal charge or is not filed as part of any docketed criminal case;
(8) an arrest or search warrant; and
(9) a charging document and an affidavit filed in support of any charging document.
(c) Immigration Cases. A filing in an action brought under 28 U.S.C. § 2241 that relates to the petitioner's immigration rights is governed by Federal Rule of Civil Procedure 5.2.
(d) Filings Made Under Seal. The court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record.
(e) Protective Orders. For good cause, the court may by order in a case:
(1) require redaction of additional information; or
(2) limit or prohibit a nonparty's remote electronic access to a document filed with the court.
(f) Option for Additional Unredacted Filing Under Seal. A person making a redacted filing may also file an unredacted copy under seal. The court must retain the unredacted copy as part of the record.
(g) Option for Filing a Reference List. A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The list must be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information.
(h) Waiver of Protection of Identifiers. A person waives the protection of Rule 49.1(a) as to the person's own information by filing it without redaction and not under seal.
History:
(As added Dec. 1, 2007.)
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 50 Prompt Disposition
Scheduling preference must be given to criminal proceedings as far as practicable.
History:
(Dec. 26, 1944, eff. March 21, 1946, as amended April 24, 1972, eff. Oct. 1,
1972; March 18, 1974, eff. July 1, 1974; April 26, 1976, eff. Aug. 1, 1976; July
8, 1976, P.L. 94-349, § 1, 90 Stat. 822; Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.)
COMMITTEE NOTE - 2002 REVISIONS
The language of Rule 50 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below.
The first sentence in current Rule 50(a), which says that a court may place criminal proceedings on a calendar, has been deleted. The Committee believed that the sentence simply stated a truism and was no longer necessary.
Current Rule 50(b), which simply mirrors 18 USC 3165, has been deleted in its entirety. The rule was added in 1971 to meet congressional concerns in pending legislation about deadlines in criminal cases. Provisions governing deadlines were later enacted by Congress and protections were provided in the Speedy Trial Act. The Committee concluded that in light of those enactments, Rule 50(b) was no longer necessary.
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 51 Preserving Claimed Error
(a) Exceptions Unnecessary. Exceptions to rulings or orders of the court are unnecessary.
(b) Preserving a Claim of Error. A party may preserve a claim of error by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection. If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party. A ruling or order that admits or excludes evidence is governed by Federal Rule of Evidence 103.
History:
(Dec. 26, 1944, eff. March 21, 1946; as amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.)
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ 2.11.2 [Requiring Objection To Instruction In Front Of Jury As Reversible Error].
See also FORECITE National™ 4.1.2 [Specific Ground For Objection Must Be Stated].
See also FORECITE National™ 4.2.1.3 [Renewal Of Objection And Requested Instructions Prior To Retirement Of Jury].
See also FORECITE National™ 16.13.6 [Attorney Objections Do Not Indicate A Desire To Keep Anything From The Jury].
See also FORECITE National™ 17.1.9 [Courtroom Security: Lack of Objection May Waive Issue For Appeal].
See also FORECITE National™ 19.6.4 [Objection By Codefendant May Be Sufficient To Preserve Issue For Appeal].
See also FORECITE National™ 24.3.3.2 [Testimony In Response To Question To Which Objection Was Sustained Is Not Evidence].
See also FORECITE National™ 36.2.3.9 [Objection To Missing Witness/Missing Evidence Instruction Based On Time Limits Or Other Restrictions Placed On The Defense].
See also FORECITE National™ 265.3.4 [Whether Court Has Duty To Instruct On Lesser Included Offense Over Defense Objection].
See also FORECITE National™ 265.3.5 [Whether Court Has Duty To Instruct On Lesser Included Offense Over Objection Of Both Prosecution And Defense].
See also FORECITE National™ 265.3.7 [Lesser Included Offense: Objection As Invited Error].
See also FORECITE National™ 267.2 [Instruction On Uncharged Nonincluded Lesser Offense Over Objection Violates Due Process].
See also FORECITE National™ 285.5.1 [Appellate Review Of Supplemental Instructions: Requirement Of Request And/Or Objection Below].
See also FORECITE National™ 295.3 [Cognizability Of Instructional Error On Appeal: Raising Issues That Have Not Been Preserved Below].
COMMITTEE NOTE - 2002 REVISIONS
The language of Rule 51 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
The Rule includes a new sentence that explicitly states that any rulings regarding evidence are governed by Federal Rule of Evidence 103. The sentence was added because of concerns about the Supersession Clause, 28 USC 2072(b), of the Rules Enabling Act, and the possibility that an argument might have been made that Congressional approval of this rule would supersede that Rule of Evidence.
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 52 Harmless Error and Plain Error
(a) Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.
(b) Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.
History:
(Dec. 26, 1944, eff. March 21, 1946; as amended Apr. 29, 2002, eff. Dec. 1, 2002.)
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ 83.3.2.4 [Buyer-Seller Relationship: Failure To Give Instruction As Plain Error].
See also FORECITE National™ 257.3.8.1 [Invalid Entrapment Instruction As Plain Error].
See also FORECITE National™ 273.1.4 [Jury Unanimity: Harmless Error Analysis Where Jury Findings Were Functional Equivalent To Unanimity].
See also FORECITE National™ 295.3.1.1 [Cognizability Of Instructional Error On Appeal: Plain Error].
See also FORECITE National™ 297.3.3 [Whether Omission Of Cautionary Instruction Regarding Defendant's Failure To Testify Can Be Harmless Error].
COMMITTEE NOTE - 2002 REVISIONS
The language of Rule 52 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
Rule 52(b) has been amended by deleting the words "or defect" after the words "plain error." The change is intended to remove any ambiguity in the rule. As noted by the Supreme Court, the language "plain error or defect" was misleading to the extent that it might be read in the disjunctive. See United States v. Olano, 507 U.S. 725, 732 (1993) (incorrect to read Rule 52(b) in the disjunctive); United States v. Young, 470 U.S. 1, 15 n. 12 (1985) (use of disjunctive in Rule 52(b) is misleading).
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 53 Courtroom Photographing and Broadcasting Prohibited
Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.
History:
(Dec. 26, 1944, eff. March 21, 1946; as amended Apr. 29, 2002, eff. Dec. 1, 2002.)
RELATED FORECITE National™ MATERIALS:
See FORECITE National™ 16.11.1 [Cameras In The Courtroom: Explaining Purpose And Function To Jury].
See also FORECITE National™ 17.3.4 [Cameras And Tape Recordings Ordered Forbidden From Courtroom].
COMMITTEE NOTE - 2002 REVISIONS
The language of Rule 53 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below.
Although the word "radio" has been deleted from the rule, the Committee does not believe that the amendment is a substantive change but rather one that accords with judicial interpretation applying the current rule to other forms of broadcasting and functionally equivalent means. See, e.g., United States v. Hastings, 695 F.2d 1278, 1279, n. 5 (11th Cir. 1983) (television proceedings prohibited); United States v. McVeigh, 931 F. Supp. 753 (D. Colo. 1996) (release of tape recordings of proceedings prohibited). Given modern technology capabilities, the Committee believed that a more generalized reference to "broadcasting" is appropriate.
Also, although the revised rule does not explicitly recognize exceptions within the rules themselves, the restyled rule recognizes that other rules might permit, for example, video teleconferencing, which clearly involves "broadcasting" of the proceedings, even if only for limited purposes.
REPORTER’S NOTES - 2002 REVISIONS
In publishing the "style" changes to the Federal Rules of Criminal Procedure, the Committee decided to publish separately any rule that includes what it considered at least one major substantive change. The purpose for this separate publication is to highlight for the bench and the bar any proposed amendments that the Committee believes will result in significant changes in current practice. That separate publication includes substantive amendments to Rules 5 and 10 that would permit video teleconferencing of initial appearances and arraignments and to Rule 26 that would permit remote transmission of live testimony. Those amendments would thus impact on Rule 53.
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 54 [Transferred] 1
Footnote 1: All of Rule 54 was moved to Rule 1.
History:
(Dec. 26, 1944, eff. March 21, 1946, as amended Dec. 27, 1948, eff. Oct. 20,
1949; April 9, 1956, eff. 90 days after April 9, 1956; Feb. 28, 1966, eff. July
1, 1966; April 24, 1972, eff. Oct. 1, 1972; eff. August 1, 1982; Oct. 12, 1984,
P.L. 98-473, Title II, Ch I, § 209(e), Ch II, § 215(e) 98 Stat. 1987, 2016;
Nov. 18, 1988, P.L. 100-690, Title VII, Subtitle B, § 7089(c), 102 Stat. 4409;
Dec. 1, 1990; Dec. 1, 1991; Dec. 1, 1993; as amended Dec. 1, 1999; Dec. 1,
2002.)
COMMITTEE NOTE - 2002 REVISIONS
Certain provisions in current Rule 54 have been moved to revised Rule 1 as part of a general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. Other provisions in Rule 54 have been deleted as being unnecessary.
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 55 Records
The clerk of the district court must keep records of criminal proceedings in the form prescribed by the Director of the Administrative Office of the United States Courts. The clerk must enter in the records every court order or judgment and the date of entry.
History:
(Dec. 26, 1944, eff. March 21, 1946, as amended Dec. 27, 1948, eff. Oct. 20,
1949; Feb. 28, 1966, eff. July 1, 1966; April 24, 1972, eff. Oct. 1, 1972; Dec.
1, 1993; as amended Apr. 29, 2002, eff. Dec. 1, 2002.)
COMMITTEE NOTE - 2002 REVISIONS
The language of Rule 55 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 56 When Court Is Open
(a) In General. A district court is considered always open for any filing, and for issuing and returning process, making a motion, or entering an order.
(b) Office Hours. The clerk’s office—with the clerk or a deputy in attendance—must be open during business hours on all days except Saturdays, Sundays, and legal holidays.
(c) Special Hours. A court may provide by local rule or order that its clerk’s office will be open for specified hours on Saturdays or legal holidays other than than those set aside by statute for observing New Year’s Day, Martin Luther King, Jr.’s Birthday, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, and Christmas Day.
History:
(Dec. 26, 1944, eff. March 21, 1946, as amended Dec. 27, 1948, eff. Oct. 20,
1949; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; March
1, 1971, eff. July 1, 1971; Aug. 1, 1988; as amended Apr. 29, 2002, eff. Dec. 1, 2002.)
COMMITTEE NOTE - 2002 REVISIONS
The language of Rule 56 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 57 District Court Rules
(a) In General.
(1) Adopting Local Rules. Each district court acting by a majority of its district judges may, after giving appropriate public notice and an opportunity to comment, make and amend rules governing its practice. A local rule must be consistent with—but not duplicative of—federal statutes and rules adopted under 28 USC 2072 and must conform to any uniform numbering system prescribed by the Judicial Conference of the United States.
(2) Limiting Enforcement. A local rule imposing a requirement of form must not be enforced in a manner that causes a party to lose rights because of an unintentional failure to comply with the requirement.
(b) Procedure When There Is No Controlling Law. A judge may regulate practice in any manner consistent with federal law, these rules, and the local rules of the district. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local district rules unless the alleged violator was furnished with actual notice of the requirement before the noncompliance.
(c) Effective Date and Notice. A local rule adopted under this rule takes effect on the date specified by the district court and remains in effect unless amended by the district court or abrogated by the judicial council of the circuit in which the district is located. Copies of local rules and their amendments, when promulgated, must be furnished to the judicial council and the Administrative Office of the United States Courts and must be made available to the public.
History:
(Dec. 26, 1944, eff. March 21, 1946, as amended Dec. 27, 1948, eff. Oct. 20,
1949; Dec. 4, 1967, eff. July 1, 1968; August 1, 1985; Dec. 1, 1993; Dec. 1,
1995; as amended Apr. 29, 2002, eff. Dec. 1, 2002.)
COMMITTEE NOTE - 2002 REVISIONS
The language of Rule 57 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 58 Petty Offenses and Other Misdemeanors
(a) Scope.
(1) In General. These rules apply in petty offense and other misdemeanor cases and on appeal to a district judge in a case tried by a magistrate judge, unless this rule provides otherwise.
(2) Petty Offense Case Without Imprisonment. In a case involving a petty offense for which no sentence of imprisonment will be imposed, the court may follow any provision of these rules that is not inconsistent with this rule and that the court considers appropriate.
(3) Definition. As used in this rule, the term ‘‘petty offense for which no sentence of imprisonment will be imposed’’ means a petty offense for which the court determines that, in the event of conviction, no sentence of imprisonment will be imposed.
(b) Pretrial Procedure.
(1) Charging Document. The trial of a misdemeanor may proceed on an indictment, information, or complaint. The trial of a petty offense may also proceed on a citation or violation notice.
(2) Initial Appearance. At the defendant’s initial appearance on a petty offense or other misdemeanor charge, the magistrate judge must inform the defendant of the following:
(A) the charge, and the minimum and maximum penalties, including imprisonment, fines, any special assessment under 18 USC 3013, and restitution under 18 USC 3556;
(B) the right to retain counsel;
(C) the right to request the appointment of counsel if the defendant is unable to retain counsel—unless the charge is a petty offense for which the appointment of counsel is not required;
(D) the defendant’s right not to make a statement, and that any statement made may be used against the defendant;
(E) the right to trial, judgment, and sentencing before a district judge—unless:
(i) the charge is a petty offense; or
(ii) the defendant consents to trial, judgment, and sentencing before a magistrate judge;
(F) the right to a jury trial before either a magistrate judge or a district judge—unless the charge is a petty offense; and
(G) any right to a preliminary hearing under Rule 5.1, and the general circumstances, if any, under which the defendant may secure pretrial release.
(3) Arraignment.
(A) Plea Before a Magistrate Judge. A magistrate judge may take the defendant’s plea in a petty offense case. In every other misdemeanor case, a magistrate judge may take the plea only if the defendant consents either in writing or on the record to be tried before a magistrate judge and specifically waives trial before a district judge. The defendant may plead not guilty, guilty, or (with the consent of the magistrate judge) nolo contendere.
(B) Failure to Consent. Except in a petty offense case, the magistrate judge must order a defendant who does not consent to trial before a magistrate judge to appear before a district judge for further proceedings.
(c) Additional Procedures in Certain Petty Offense Cases. The following procedures also apply in a case involving a petty offense for which no sentence of imprisonment will be imposed:
(1) Guilty or Nolo Contendere Plea. The court must not accept a guilty or nolo contendere plea unless satisfied that the defendant understands the nature of the charge and the maximum possible penalty.
(2) Waiving Venue.
(A) Conditions of Waiving Venue. If a defendant is arrested, held, or present in a district different from the one where the indictment, information, complaint, citation, or violation notice is pending, the defendant may state in writing a desire to plead guilty or nolo contendere; to waive venue and trial in the district where the proceeding is pending; and to consent to the court’s disposing of the case in the district where the defendant was arrested, is held, or is present.
(B) Effect of Waiving Venue. Unless the defendant later pleads not guilty, the prosecution will proceed in the district where the defendant was arrested, is held, or is present. The district clerk must notify the clerk in the original district of the defendant’s waiver of venue. The defendant’s statement of a desire to plead guilty or nolo contendere is not admissible against the defendant.
(3) Sentencing. The court must give the defendant an opportunity to be heard in mitigation and then proceed immediately to sentencing. The court may, however, postpone sentencing to allow the probation service to investigate or to permit either party to submit additional information.
(4) Notice of a Right to Appeal. After imposing sentence in a case tried on a not-guilty plea, the court must advise the defendant of a right to appeal the conviction and of any right to appeal the sentence. If the defendant was convicted on a plea of guilty or nolo contendere, the court must advise the defendant of any right to appeal the sentence.
(d) Paying a Fixed Sum in Lieu of Appearance.
(1) In General. If the court has a local rule governing forfeiture of collateral, the court may accept a fixed-sum payment in lieu of the defendant’s appearance and end the case, but the fixed sum may not exceed the maximum fine allowed by law.
(2) Notice to Appear. If the defendant fails to pay a fixed sum, request a hearing, or appear in response to a citation or violation notice, the district clerk or a magistrate judge may issue a notice for the defendant to appear before the court on a date certain. The notice may give the defendant an additional opportunity to pay a fixed sum in lieu of appearance. The district clerk must serve the notice on the defendant by mailing a copy to the defendant’s last known address.
(3) Summons or Warrant. Upon an indictment, or upon a showing by one of the other charging documents specified in Rule 58(b)(1) of probable cause to believe that an offense has been committed and that the defendant has committed it, the court may issue an arrest warrant or, if no warrant is requested by an attorney for the government, a summons. The showing of probable cause must be made under oath or under penalty of perjury, but the affiant need not appear before the court. If the defendant fails to appear before the court in response to a summons, the court may summarily issue a warrant for the defendant’s arrest.
(e) Recording the Proceedings. The court must record any proceedings under this rule by using a court reporter or a suitable recording device.
(f) New Trial. Rule 33 applies to a motion for a new trial.
(g) Appeal.
(1) From a District Judge's Order or Judgment. The Federal Rules of Appellate Procedure govern an appeal from a district judge’s order or a judgment of conviction or sentence.
(2) From a Magistrate Judge's Order or Judgment.
(A) Interlocutory Appeal. Either party may appeal an order of a magistrate judge to a district judge within 10 days of its entry if a district judge’s order could similarly be appealed. The party appealing must file a notice with the clerk specifying the order being appealed and must serve a copy on the adverse party.
(B) Appeal from a Conviction or Sentence. A defendant may appeal a magistrate judge’s judgment of conviction or sentence to a district judge within 10 days of its entry. To appeal, the defendant must file a notice with the clerk specifying the judgment being appealed and must serve a copy on an attorney for the government.
(C) Record. The record consists of the original papers and exhibits in the case; any transcript, tape, or other recording of the proceedings; and a certified copy of the docket entries. For purposes of the appeal, a copy of the record of the proceedings must be made available to a defendant who establishes by affidavit an inability to pay or give security for the record. The Director of the Administrative Office of the United States Courts must pay for those copies.
(D) Scope of Appeal. The defendant is not entitled to a trial de novo by a district judge. The scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge.
(3) Stay of Execution and Release Pending Appeal. Rule 38 applies to a stay of a judgment of conviction or sentence. The court may release the defendant pending appeal under the law relating to release pending appeal from a district court to a court of appeals.
History:
(As added May 1, 1990, eff. Dec. 1, 1990; amended Apr. 30, 1991,
eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 29, 2002, eff. Dec. 1,
2002; Dec. 1, 2006.)
COMMITTEE NOTE - 2002 REVISIONS
The language of Rule 58 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
The title of the rule has been changed to "Petty Offenses and Other Misdemeanors." In Rule 58(c)(2)(B) (regarding waiver of venue), the Committee amended the rule to require that the "district clerk," instead of the magistrate judge, inform the original district clerk if the defendant waives venue and the prosecution proceeds in the district where the defendant was arrested. The Committee intends no change in practice.
In Rule 58(g)(1) and (g)(2)(A), the Committee deleted as unnecessary the word "decision" because its meaning is covered by existing references to an "order, judgment, or sentence" by a district judge or magistrate judge. In the Committee’s view, deletion of that term does not amount to a substantive change.
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 59 Matters Before a Magistrate Judge
(a) Nondispositive Matters. A district judge may refer to a magistrate judge for determination any matter that does not dispose of a charge or defense. The magistrate judge must promptly conduct the required proceedings and, when appropriate, enter on the record an oral or written order stating the determination. A party may serve and file objections to the order within 10 days after being served with a copy of a written order or after the oral order is stated on the record, or at some other time the court sets. The district judge must consider timely objections and modify or set aside any part of the order that is contrary to law or clearly erroneous. Failure to object in accordance with this rule waives a party's right to review.
(b) Dispositive Matters.
(1) Referral to Magistrate Judge. A district judge may refer to a magistrate judge for recommendation a defendant's motion to dismiss or quash an indictment or information, a motion to suppress evidence, or any matter that may dispose of a charge or defense. The magistrate judge must promptly conduct the required proceedings. A record must be made of any evidentiary proceeding and of any other proceeding if the magistrate judge considers it necessary. The magistrate judge must enter on the record a recommendation for disposing of the matter, including any proposed findings of fact. The clerk must immediately serve copies on all parties.
(2) Objections to Findings and Recommendations. Within 10 days after being served with a copy of the recommended disposition, or at some other time the court sets, a party may serve and file specific written objections to the proposed findings and recommendations. Unless the district judge directs otherwise, the objecting party must promptly arrange for transcribing the record, or whatever portions of it the parties agree to or the magistrate judge considers sufficient. Failure to object in accordance with this rule waives a party's right to review.
(3) De Novo Review of Recommendations. The district judge must consider de novo any objection to the magistrate judge's recommendation. The district judge may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions.
History:
(Dec. 26, 1944, eff. March 21, 1946; as amended Dec. 1, 2002; Dec. 1, 2005.)
FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
Rule 60 Title
These rules may be known and cited as the Federal Rules of Criminal Procedure.
History:
(Dec. 26, 1944, eff. March 21, 1946; as amended Apr. 29, 2002, eff. Dec. 1, 2002.)
COMMITTEE NOTE - 2002 REVISIONS
No changes have been made to Rule 60, as a result of the general restyling of the Criminal Rules.