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Rules of Criminal Procedure

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Federal Rules of Criminal Procedure
(( abridged version 1.0 - RCRP use only ))


TITLE I. APPLICABILITY
Rule 101. Applicability
These rules are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay.

TITLE II. PRELIMINARY PROCEEDINGS
Rule 201. The Complaint
The complaint is a written statement of the essential facts constituting the offense charged. It must be made under oath before a magistrate judge or, if none is reasonably available, before a state or local judicial officer.

Rule 202. Arrest Warrant or Summons on a Complaint
  1. Issuance. If the complaint or one or more affidavits filed with the complaint establish probable cause to believe that an offense has been committed and that the defendant committed it, the judge must issue an arrest warrant to an officer authorized to execute it. At the request of an attorney for the government, the judge must issue a summons, instead of a warrant, to a person authorized to serve it. A judge may issue more than one warrant or summons on the same complaint. If an individual defendant fails to appear in response to a summons, a judge may, and upon request of an attorney for the government must, issue a warrant. If an organizational defendant fails to appear in response to a summons, a judge may take any action authorized by United States law.
  2. Form.
    1. Warrant. A warrant must:
      1. contain the defendant's name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty;
      2. describe the offense charged in the complaint;
      3. be signed by a judge.
    2. Summons. A summons must be in the same form as a warrant except that it must require the defendant to appear before a magistrate judge at a stated time and place.
  3. Execution or Service.
    1. By Whom. Only a law enforcement officer may execute a warrant. Any person may serve a summons.
    2. Manner.
      1. A warrant is executed by arresting the defendant. Upon arrest, an officer possessing the original or a duplicate original warrant must show it to the defendant. If the officer does not possess the warrant, the officer must inform the defendant of the warrant's existence and of the offense charged and, at the defendant's request, must show the original or a duplicate original warrant to the defendant as soon as possible.
      2. A summons is served:
        1. by delivering a copy to the defendant personally; or
        2. by leaving a copy at the defendant's residence or usual place of abode (or office, if an organization) with a person of suitable age and discretion residing at that location and by mailing a copy to the defendant's last known address.

TITLE III. PREPARATION FOR TRIAL
Rule 301. Pleas
  1. Entering a Plea.
    1. In General. A defendant may plead not guilty, guilty, or nolo contendere.
    2. Conditional Plea. With the consent of the court and the government, at trial a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea.
    3. Failure to Enter a Plea. If a defendant refuses to enter a plea or if a defendant organization fails to appear, the court must enter a plea of not guilty.
  2. Considering and Accepting a Guilty or Nolo Contendere Plea.
    1. Advising and Questioning the Defendant. Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following:
      1. the government's right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath;
      2. the right to plead not guilty, or having already so pleaded, to persist in that plea;
      3. the right to be represented by counsel—and if necessary have the court appoint counsel—at trial and at every other stage of the proceeding;
      4. the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;
      5. the defendant's waiver of these trial rights if the court accepts a plea of guilty or nolo contendere;
      6. the nature of each charge to which the defendant is pleading;
      7. any maximum possible penalty, including imprisonment, fine, and term of supervised release;
      8. any mandatory minimum penalty;
    2. Ensuring That a Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).
    3. Determining the Factual Basis for a Plea. Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.
  3. Plea Agreement Procedure.
    1. In General. An attorney for the government and the defendant's attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will:
      1. not bring, or will move to dismiss, other charges;
      2. recommend, or agree not to oppose the defendant's request, that a particular sentence or sentencing range is appropriate (such a recommendation or request does not bind the court); or
      3. agree that a specific sentence or sentencing range is the appropriate disposition of the case (such a recommendation or request binds the court once the court accepts the plea agreement).
    2. Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera.
    3. Accepting a Plea Agreement. If the court accepts the plea agreement, it must inform the defendant.
    4. Rejecting a Plea Agreement. If the court rejects a plea agreement, the court must do the following on the record and in open court (or, for good cause, in camera):
      1. inform the parties that the court rejects the plea agreement;
      2. advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and
      3. advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.
  4. Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdraw a plea of guilty or nolo contendere:
    1. before the court accepts the plea, for any reason or no reason; or
    2. after the court accepts the plea, but before it imposes sentence if:
      1. the court rejects a plea agreement; or
      2. the defendant can show a fair and just reason for requesting the withdrawal.
  5. Finality of a Guilty or Nolo Contendere Plea. After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal attack.

Rule 302. Pretrial Motions
  1. Pretrial Motions.
    1. In General. A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.
    2. Motions That Must Be Made Before Trial. The following defenses, objections, and requests must be raised by pretrial motion:
      1. a motion alleging a defect in instituting the prosecution, including:
        1. improper venue;
        2. a violation of the constitutional right to a speedy trial;
        3. selective or vindictive prosecution; and
      2. suppression of evidence;
      3. discovery under Rule 304.
  2. Deadline for a Pretrial Motion; Consequences of Not Making a Timely Motion.
    1. The deadline for the parties to make pretrial motions is the start of the trial (entry of judge and/or jury into the courtroom).
    2. If a party does not meet the deadline for making a motion, the motion is untimely. But a court may consider the defense, objection, or request if the party shows good cause.
  3. Ruling on a Motion. The court must decide every pretrial motion before trial unless it finds good cause to defer a ruling.

Rule 303. Depositions
  1. When Taken. A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice.
  2. Notice.
    1. In General. A party seeking to take a deposition must give every other party reasonable written notice of the deposition's date and location. The notice must state the name of each deponent.
    2. To the Custodial Officer. A party seeking to take the deposition must also notify the officer who has custody of the defendant of the scheduled date and location.
  3. Defendant's Presence. A defendant has the right upon request to be present at the deposition, subject to any conditions imposed by the court.
  4. Manner of Taking. Unless these rules or a court order provides otherwise, a deposition must be taken and filed in the same manner as a deposition in a civil action, except that:
    1. A defendant may not be deposed without that defendant's consent.
    2. The scope and manner of the deposition examination and cross-examination must be the same as would be allowed during trial.
    3. The government must provide to the defendant or the defendant's attorney, for use at the deposition, any statement of the deponent in the government's possession to which the defendant would be entitled at trial.
  5. Admissibility and Use as Evidence. An order authorizing a deposition to be taken under this rule does not determine its admissibility. A party may use all or part of a deposition as provided by the Federal Rules of Evidence.
  6. Objections. A party objecting to deposition testimony or evidence must state the grounds for the objection during the deposition.

Rule 304. Discovery
  1. Government's Disclosure.
    1. Information subject to disclosure upon request by the defendant, or when the government intends to use it in their case-in-chief at trial.
      1. Defendant's oral statement, made at any point before or after arrest.
      2. Defendant's written or recorded statement.
      3. Organizational defendant. Upon a defendant's request, if the defendant is an organization, the government must disclose to the defendant any statement if the government contends that the person making the statement:
        1. was legally able to bind the defendant regarding the subject of the statement because of that person's position within the organization, or
        2. was personally involved in the alleged conduct constituting the offense.
      4. Defendant's prior record.
      5. Documents and objects.
      6. Reports of examinations and tests.
      7. Expert witnesses.
    2. Information not subject to disclosure. This rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case.
  2. Defendant's disclosure.
    1. Information subject to disclosure upon request by the government, or when the defendant intends to use it in the defendant's case-in-chief at trial.
      1. Documents and objects.
      2. Reports of examinations and tests.
      3. Expert witnesses.
    2. Information not subject to disclosure. This rule does not authorize the discovery or inspection of reports, memoranda, or other documents made by the defendant, or the defendant's attorney or agent, during the case's investigation or defense.
    3. Continuing Duty to Disclose. A party who discovers additional evidence or material before or during trial must promptly disclose its existence to the other party or the court if:
      1. the evidence or material is subject to discovery or inspection under this rule; and
      2. the other party previously requested, or the court ordered, its production.
    4. Regulating Discovery. If a party fails to comply with this rule, the court may:
      1. order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions;
      2. grant additional preparation time;
      3. prohibit that party from introducing the undisclosed evidence; or
      4. enter any other order that is just under the circumstances.

Rule 305. Subpoena
  1. Content. A subpoena must state the court's name and the title of the proceeding, include the seal of the court, and command the witness to attend and testify at the time and place the subpoena specifies.
  2. Producing Documents and Objects.
    1. In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.
    2. Quashing or Modifying the Subpoena. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.
    3. Subpoena for Personal or Confidential Information About a Victim. A subpoena requiring the production of personal or confidential information about a victim may be served on a third party only by court order. Before entering the order and unless there are exceptional circumstances, the court must require giving notice to the victim so that the victim can move to quash or modify the subpoena or otherwise object.
  3. Service. A law enforcement officer, or any nonparty who is at least 18 years old may serve a subpoena.
  4. Contempt. The court may hold in contempt a witness who, without adequate excuse, disobeys a subpoena issued by the court.
  5. Information Not Subject to a Subpoena. No party may subpoena a statement of a witness or of a prospective witness under this rule.

TITLE IV. TRIAL
Rule 401. Jury or Nonjury Trial
  1. Jury Trial. If the defendant is entitled to a jury trial, the trial may be by jury if:
    1. the defendant requests a jury trial in writing; and
    2. the court approves.
  2. Jury Size.
    1. In General. A jury consists of 10 persons unless this rule provides otherwise.
    2. Stipulation for a Smaller Jury. At any time before the verdict, the parties may, with the court's approval, or the court itself, stipulate in writing that:
      1. the jury may consist of fewer than 10 persons; or
      2. a jury of fewer than 10 persons may return a verdict if the court finds it necessary to excuse a juror for good cause after the trial begins.
  3. Nonjury Trial. In a case tried without a jury, the court must find the defendant guilty or not guilty. If a party requests before the finding of guilty or not guilty, the court must state its specific findings of fact in open court or in a written decision or opinion.

Rule 402. Taking Testimony
In every trial the testimony of witnesses must be taken in open court, unless otherwise provided by a statute.

Rule 403. Closing Argument
Closing arguments proceed in the following order:
  1. the government argues;
  2. the defense argues; and
  3. the government rebuts.

Rule 404. Jury Instructions
  1. In General. Any party may request in writing that the court instruct the jury on the law as specified in the request. The request must be made at the close of the evidence.
  2. Ruling on a Request. The court must inform the parties before closing arguments how it intends to rule on the requested instructions.
  3. Time for Giving Instructions. The court may instruct the jury before or after the arguments are completed, or at both times.
  4. Objections to Instructions. A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate.

Rule 405. Jury Verdict
  1. Return. The jury must return its verdict to a judge in open court. The verdict must be unanimous.
  2. Partial Verdicts, Mistrial, and Retrial.
    1. Multiple Defendants. If there are multiple defendants, the jury may return a verdict at any time during its deliberations as to any defendant about whom it has agreed.
    2. Multiple Counts. If the jury cannot agree on all counts as to any defendant, the jury may return a verdict on those counts on which it has agreed.
    3. Mistrial and Retrial. If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. The government may retry any defendant on any count on which the jury could not agree.
  3. Lesser Offense or Attempt. A defendant may be found guilty of any of the following:
    1. an offense necessarily included in the offense charged;
    2. an attempt to commit the offense charged; or
    3. an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right.
  4. Jury Poll. After a verdict is returned but before the jury is discharged, the court must on a party's request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury.

TITLE V. POST-CONVICTION PROCEDURES
Rule 501. New Trial
  1. Defendant's Motion. Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment. If the case was tried with a jury, only matters of law may be disputed, as matters of fact have been decided by the jury.
  2. Time to File.
    1. Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 1 month after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.
    2. Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty.

TITLE VI. SUPPLEMENTARY AND SPECIAL PROCEEDINGS
Rule 601. Search and Seizure
  1. Persons or Property Subject to Search or Seizure. A warrant may be issued for any of the following:
    1. evidence of a crime;
    2. contraband, fruits of crime, or other items illegally possessed;
    3. property designed for use, intended for use, or used in committing a crime; or
    4. a person to be arrested or a person who is unlawfully restrained.
  2. Obtaining a Warrant.
    1. In General. After receiving an affidavit or other information, a judge must issue the warrant if there is probable cause to search for and seize a person or property or to install and use a tracking device.
    2. Requesting a Warrant in the Presence of a Judge.
      1. Warrant on an Affidavit. When a law enforcement officer or an attorney for the government presents an affidavit in support of a warrant, the judge may require the affiant to appear personally and may examine under oath the affiant and any witness the affiant produces.
      2. Warrant on Sworn Testimony. The judge may wholly or partially dispense with a written affidavit and base a warrant on sworn testimony if doing so is reasonable under the circumstances.
    3. Requesting a Warrant by Telephonic or Other Reliable Electronic Means. A judge may issue a warrant based on information communicated by telephone or other reliable electronic means.
  3. Issuing the Warrant.
    1. In General. The judge must issue the warrant to an officer authorized to execute it.
    2. Contents of the Warrant.
      1. Warrant to Search for and Seize a Person or Property. Except for a tracking-device warrant, the warrant must identify the person or property to be searched, identify any person or property to be seized, and designate the judge to whom it must be returned.
      2. Warrant Seeking Electronically Stored Information. A warrant may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant.
      3. Warrant for a Tracking Device. A tracking-device warrant must identify the person or property to be tracked, designate the judge to whom it must be returned, and specify a reasonable length of time that the device may be used. The time must not exceed 45 days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed 45 days each.
  4. Executing and Returning the Warrant.
    1. Warrant to Search for and Seize a Person or Property.
      1. Noting the Time. The officer executing the warrant must enter on it the exact date and time it was executed.
      2. Inventory. An officer present during the execution of the warrant must prepare and verify an inventory of any property seized. The officer must do so in the presence of another officer and the person from whom, or from whose premises, the property was taken. If either one is not present, the officer must prepare and verify the inventory in the presence of at least one other credible person. In a case involving the seizure of electronic storage media or the seizure or copying of electronically stored information, the inventory may be limited to describing the physical storage media that were seized or copied. The officer may retain a copy of the electronically stored information that was seized or copied.
      3. Receipt. The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property. Service may be accomplished by any means, including electronic means, reasonably calculated to reach that person.
      4. Return. The officer executing the warrant must promptly return it—together with a copy of the inventory—to the judge designated on the warrant. The officer may do so by reliable electronic means. The judge must, on request, give a copy of the inventory to the person from whom, or from whose premises, the property was taken and to the applicant for the warrant.
    2. Warrant for a Tracking Device.
      1. Noting the Time. The officer executing a tracking-device warrant must enter on it the exact date and time the device was installed and the period during which it was used.
      2. Return. Within 10 days after the use of the tracking device has ended, the officer executing the warrant must return it to the judge designated in the warrant. The officer may do so by reliable electronic means.
      3. Service. Within 10 days after the use of the tracking device has ended, the officer executing a tracking-device warrant must serve a copy of the warrant on the person who was tracked or whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked; or by leaving a copy at the person's residence or usual place of abode with an individual of suitable age and discretion who resides at that location and by mailing a copy to the person's last known address. Upon request of the government, the judge may delay notice.
    3. Delayed Notice. Upon the government's request, a judge may delay any notice required by this rule.
  5. Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return.
  6. Motion to Suppress. A defendant may move to suppress evidence in the court.

TITLE VII. GENERAL PROVISIONS
Rule 701. Defendant's Presence
  1. When Required. At every trial stage, including jury impanelment and the return of the verdict.
  2. 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:
      1. when the defendant is voluntarily absent after the trial has begun; or
      2. 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.

Rule 702. Right to and Appointment of 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.

Rule 703. Motions and Supporting Affidavits
  1. In General. A party applying to the court for an order must do so by motion.
  2. 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.
  3. 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 2 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.
  4. 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.

Rule 704. Dismissal
  1. By the Government. The government may, with leave of court, dismiss a complaint. The government may not dismiss the prosecution during jury trial without the defendant's consent. During bench trial, the government may dismiss the prosecution, but the judge must enter a judgment of acquittal.
  2. By the Court. The court may dismiss a complaint if unnecessary delay occurs in bringing a defendant to trial.

Rule 705. Harmless and Plain Error
  1. Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.
  2. Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.

Rule 706. 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.



 
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