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1983

Amendments to the Federal Rules of Criminal Procedure Amendments to the Federal Rules of Criminal Procedure

Paul F. Rothstein Georgetown University Law Center, rothstei@law.georgetown.edu

This paper can be downloaded free of charge from:

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A.B.A. J., Dec. 1983, at 1838-1842.

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Part of the Criminal Law Commons, and the Criminal Procedure Commons

By Paul F. Rothstein

Amendments to theFederal Rules ofCriminal Procedure

NUMEROUS changes in the rules govern-ing criminal trials in federal court havebeen in effect for four months. Some aremajor and some are minor, but theyshould be studied carefully by lawyershandling criminal cases.

Amendments have been made to:* Rule 6, on disclosure of grand jury

information,e Rule 11, on nolo contendere and

guilty pleas, plus a new harmless errorrule,

" Rule 12, on Jencks-type disclosures," Rule 12.2, on testimony on mental

condition of the defendant and mentalexaminations,

* Rule 23, permitting 11-memberjuriesand

e Rule 32, on correcting pre-sentencereports and withdrawal of pleas.

The grand juryRule 6(e)(2) contains a general pro-

hibition against disclosure of "mattersoccurring before the grand jury." Sub-paragraph 6(e)(3) contains exceptions tothis prohibition. The exceptions gener-ally have to do with the circumstances inwhich disclosure can be made to othergovernment attorneys or personnel aswell as when a court can order specialdisclosure-for example, to the defen-dant. The amendments add anotherexception, permitting disclosure when itis made by the attorney for the govern-ment to another federal grand jury.

The amendmentS also add Rule6(e)(3)(D) containing procedures forapplying to the court for disclosure pre-liminarily to or in connection with ajudi-cial proceeding. The court always had

There are changesin the rulesconcerning the grandjury, nolo contenderepleas, Jencks-typedisclosures andwithdrawal of pleas.

1838 American Bar Association Journal

power to order disclosure in this situa-tion. It is the procedures that are new,clarifying matters such as: to whichcourt application must be made;whether the application may be exparte; who must be given notice of thehearing; and closure of the hearing.

The amendment as originally pro-posed provided that the government hasa right to an ex parte hearing when itwas seeking the grand jury information"for its own use." The ABA CriminalJustice Section objected. noting exam-ples in which the government sought touse grand jury information for civil pur-poses. While not meeting the point fully,a change was made to give the court dis-cretion in the matter.

The amendments probably do notsubstantially affect several casesdecided by the U.S. Supreme Court in thegrand jury area last term.

In United States v. Sells Engineer-ing Inc., 103 S.Ct. 3133 (1983), it washeld that provisions of the rule authoriz-ing more-or-less automatic disclosure toattorneys for the government did notallow disclosure to Justice Departmentattorneys working on a civil fraud case.The attorneys would have to applyunder the rules requiring a court orderand a showing of particularized need.

The Court in another case declined torecognize a particularized need when anapplication was made by the InternalRevenue Service for a civil tax audit.See 103 S.Ct. 3164 (1983). A third caserefused to abrogate the particularizedneed requirement when a state attorneygeneral requested grand jury materialsto facilitate a civil antitrust action,despite provisions of the antitrust lawsarguably suggesting the contrary. See103 S.Ct. 1356 (1983).

Another new provision. Rule 6(e)(6),requires that records, orders and sub-poenas relating to grand jury proceed-ings must be kept under seal "to theextent and for such time as is necessaryto prevent disclosure of matters occur-ring before a grand jury." This con-ceivably could be an obstacle to defenseattorneys wishing to ascertain whetherthere was a proper order authorizing aspecial grand jury or a proper orderextending the life of a grand jury, orwishing to learn the identity of people towhom the government attorney dis-closed grand jury information. But most

of these problems can be taken care ofby a proper motion under Rule 6(e)(3)(C)(ii), which provides that thecourt may at the request of the defen-dant disclose grand jury matters whencertain showings are made.

PleasIt often happens that criminal defen-

dants will plead guilty or nolo conten-dere primarily because they lost animportant pre-trial motion-for exam-ple, a motion to suppress evidence. Inmost instances, appeal of adverse rul-ings on pre-trial motions must await theend of the case. Interlocutory appealsare rarely allowed. A plea of guilty hasbeen held to foreclose nearly all rights ofdefendants to appeal. The consequenceof this is that defendants who lose a pre-trial motion but feel they may succeed

Rule 11(a) (2) has beenadded so defendants cancondition a guilty or"nolo" plea on theoutcome of an appealon any specifiedpre-trial motion.

on appeal may well be tempted to pleadnot guilty and put the system to theexpense of a trial in order to preservetheir right to appeal.

To avoid this, Rule 1l(a)(2) has beenadded to permit defendants to conditiontheir plea of guilty or nolo contendereon the outcome of an appeal on anyspecified pre-trial motion. If the defen-dant prevails on the appeal he is allowedto withdraw his plea. The amendment,however, requires the approval of thecourt and the consent of the governmentbefore this conditional plea can beentered.

Rule 11 as a whole sets forth detailedprocedures concerning how a guilty ornolo contendere plea must be taken.Included are provisions instructing thejudge how to ensure that the defendanthas full information about the con-

1l1--mitti hu MIchapl Carroll

sequences of a guilty or nolo contendereplea and to ensure that any plea is vol-untary. The rule also includes steps thejudge and attorneys must take to have avalid plea agreement and provisions reg-ulating the acceptance and rejection bythe court of a plea agreement.

The new amendments add a final sub-division to the rule providing that "anyvariance from the procedures requiredby this rule which does not affect sub-stantial rights shall be disregarded."This is a "harmless error" provision. Itstems from the fact that at least one lineof authority was developing that anyvariance from the detailed prescriptionsof Rule 11 would vitiate a guilty plea andthe conviction on which it is based.

In some instances, however, variancesfrom Rule 11 procedures plainly couldnot have affected the defendant's deci-sion to plead guilty. In one case a trialjudge failed to advise the guilty pleaderof the maximum years of special super-vised parole following imprisonment, asrequired by the rule, and instead saidthat added parole is "generally in theneighborhood of three years." UnitedStates v. Peters, No. 77-1700 (4th Cir.,Dec. 22, 1978). Suppose the judge failedto explain what a conspiracy chargemeant with precision. United States v.Coronado, 554 F.2d 166 (5th Cir. 1977).Suppose some essential element of thecrime was not mentioned but the defen-dant's responses clearly indicated hisawareness of that element. McCarthy v.United States, 394 U.S. 459 (1969). Sup-pose the judge understated the max-imum penalty, but the penalty actuallyimposed did not exceed that indicated,as happened in Coronado, above. Orsuppose the judge failed to tell thedefendant that statements' he made inconnection with his plea may be usedagainst him in a prosecution for perjuryor false statement.

In all of these situations, although arequired piece of information had beenomitted by the judge, the variancewould probably be considered harmlessunder the new amendment.

Jencks Act disclosuresRule 12(i) is new. It extends Rule

26.2-which contains both the principlesof the Jencks Act, 18 U.S.C. § 3500 andso-called reverse-Jencks principles-tohearings on motions to suppress evi-

December 1983 * Volume 69 1839

dence in advance of the trial.Rule 26.2, which speaks in terms of

trial witnesses rather than witnesses atpre-trial suppression hearings, requiresessentially that certain prior statementsmade by a prosecution or defense wit-ness must be disclosed by the proponentof the witness to the other side but onlyafter the witness testifies, and only if thestatement deals with the same subjectmatter as the testimony. The theory isthat the statement may be useful asimpeachment. An entire body of caselaw has developed concerning whatkinds of statements qualify for dis-closure. The drafters of the amendmentsfelt that the credibility of witnesses tes-tifying at hearings on pre-trial suppres-sion motions was as important as thecredibility of witnesses at trial, and sothe same methods of evaluation shouldapply.

Rule 12(i) further provides that, forpurposes of the disclosure of prior state-ments, a law enforcement officer shallbe deemed a witness called by the gov-ernment, regardless of which side callshim. For example, the defense may wishto call the law officer who conducted thesearch and who has information thedefense believes indicates the illegalityof the seizure. The officer can beexpected to be sympathetic to the gov-ernment. The government may haveprior statements of his relating to thesearch and seizure that should be dis-closed. The amendment applies to alllaw enforcement officers, state orfederal.

The provision concerning law enforce-ment officers also provides that, beforethe statements are disclosed, the courtshall excise portions of the prior state-ment containing privileged matter. Theprimary concern was protection of theidentity of informants. The Criminal Jus-tice Section of the American Bar Asso-ciation criticized this provision becauseit may suggest that privileged material isnot subject to excision under otherapplications of Rule 12(i), for example,when the witness is not a law enforce-ment officer, or under Rule 26.2 or theJencks Act.

Testimony on mental conditionRule 12.2(a) provides for pre-trial

notice that the defendant intends to relyon the insanity defense. This provision

1840 American Bar Association Journal

remains unchanged, but Rule 12.2(b),relating to advance notice of defendant'sexpert witnesses, has been amended andbroadened.

Prior to the amendments, the rulerequired the defense to notify the gov-ernment of its intention to introduceexpert testimony relating to "mental dis-ease, defect or other condition bearingupon the issue of whether he [the defen-dant] had the mental state required forthe offense." The amended rule wouldrequire this notice to be given by thedefense when expert testimony isintended to be introduced on "any men-tal condition of the defendant bearing onhis guilt." This is an expansion. Themental condition need no longer relateto the mental state required for theoffense. It may relate to anything havingto do with guilt-for example, the com-mission of the act itself, the actus reusas opposed to the mens rea.

Currently emerging in the law are anumber of mental conditions used asdefenses when the mental condition isaddressed to the act itself or to someother non-mens rea element of theoffense. Defense experts have testifiedon the defendant's susceptibility toinfluence to make out the defense ofentrapment, United States v. Perl, 584F.2d 1316 (4th Cir. 1978); his incapabilityof violent or aggressive acts against oth-ers, in order to indicate the unlikelihoodthat he committed the charged violentcriminal act, United States v. Webb, 625F.2d 709 (5th Cir. 1980); and to othermental traits making the act less likelyor making certain defenses more likely.There was ambiguity, before the amend-ments, as to whether the pre-trial noticerequired by the rule extended to thesekinds of experts.

The expansion of the notice rule toembrace these new experts creates

some problems. For example, the ruledoes not specify that any details must beincluded in the notice. It has been con-sidered adequate under the rule simplyto state that "the defense intends tointroduce an expert under Rule 12.2(b)."This perfunctory notice was adequate toalert the prosecution to the nature of thedefense and the type of expert thatwould be testifying. This usually meantinsanity, intoxication, narcotics impair-ment or mental deficiency, interferingwith knowledge or intention. In the con-text of an actual case it was not too dif-ficult to guess the nature.

With the expansion of the rule, thepossibilities become more numerous andthe difficulty correspondingly greater.Added to the possibilities now are men-tal qualities that might bear on the actusreus (the doing of the act), entrapmentand other elements and defenses. Itmight be desirable to require some addi-

tional details in the notice. But thismakes the defendant disgorge much ofhis potential defense, which may beundesirable. There may be a question ofthe constitutionality of requiring anynotice that goes beyond notice ofinsanity or mens rea defenses.

Rule 12.2(c) authorizing the court toorder the defendant to submit to a men-tal examination is correspondinglyexpanded so that the type of examina-tion is no longer confined to a "psychi-atric" examination. It now covers a"mental" examination by a psychiatristor "other expert."

The rule now provides that state-ments made by the defendant in a court-ordered mental examination cannot beused on any issue except "an issuerespecting a mental condition on whichthe defendant has introduced testi-mony." The prohibition also embracestestimony by an expert based on such

statements and any other "fruits of thestatement."

New Rule 12.2(e) provides that ifnotice of intention (to plead insanity orto introduce an expert on any mentalcondition) is later withdrawn, the factthat notice was given or that it waswithdrawn is not admissible against theperson giving the notice in any subse-quent civil or criminal proceeding.

Eleven-member juriesIt occasionally happens in federal

criminal trials that, after the jury hasretired to consider its verdict and thealternate jurors perhaps have been dis-charged, one of the regular jurorsbecomes seriously incapacitated and isunable to continue. Declaring a mistrialand ordering a new trial could involveconsiderable expense and delay. InUnited States v. Meinster, 484 F.Supp.442 (S.D. Fla. 1980), 12 defendants werenamed in a 36-count, 100-page indict-ment for complicated racketeering andwhite-collar offenses. The trial took fourmonths. Before the jury retired, multipledefense counsel declined the trialjudge's request to agree to a jury offewer than 12 should a juror becomeunable to continue during the delibera-tions. A day later, after the jury retiredfor deliberations, one juror had a heartattack and was excused. Defense coun-sel again rejected the notion that thedeliberations should continue with theremaining 11 jurors. Other cases were onthe docket awaiting trial, so that retrialnot only would have been costly butalso would have delayed other casesthat were entitled to speedy trial.Defense counsel remained adamant innot agreeing to trial by less than 12jurors.

In situations like this, if a new trial isto be avoided, the choice is betweenallowing deliberation to continue with 11jurors or calling on one of the alternatejurors to serve, assuming that there isno reasonable prospect of recovery ofthe disabled juror. But alternate jurorsare selected to fill in before deliberationshave begun. If an alternate is called intoservice after deliberations have begun,the alternate juror ordinarily will nothave had the benefit of, nor exertedeffect on, the earlier discussions. Or-dering the jurors to begin delibera-tions anew is an incomplete answer

December 1983 * Volume 69 1841

because the alternate will still havemissed the earlier discussions. Normallyhe will not be as able to influence theotherjurors. The alternate may have beenexposed to outside influences and, as anew juror, may feel intimidated by theother jurors.

The law prior to the amendment wasunclear as to what should be done. Rule23 seemed to prohibit trial by fewer than12 without the consent of the parties.Amended Rule 23(b) now provides thateven absent a stipulation of the partiesthat if a juror must be excused afterdeliberations have begun, the court in itsdiscretion may accept as valid a verdictby I1 jurors.

In Williams v. Florida. 399 U.S. 78(1970), the U.S. Supreme Court upheldthe constitutionality of a six-person juryin Florida, so an li-person jury alsowould be acceptable. It should be notedthat the amendments do not authorizeless-than-unanimous verdicts. The It-person verdict still would have to beunanimous.

The new amendment gives the judgediscretion whether to order a new trialor to allow an 11-person deliberation. Nostandards are provided for the exerciseof that discretion, but the advisory com-mittee suggests that the length of thetrial and expense are to be weighed inthe balance. What is to be weighed onthe other side of the balance is lessclear, as is how much weight it shouldbe given.

Pre-sentence investigation reportRule 32 provides for a pre-sentence

investigation report to be supplied to thejudge and (with exceptions) to the defen-dant and his counsel for comments priorto sentencing. The new Rule 32(c)(3)(D)provides for the first time what is to bedone if an inaccuracy is alleged orshown. As to each matter controverted,the judge must make a finding or deter-mine that no such finding is necessarybecause the matter will not be taken intoaccount in sentencing. A written recordmust accompany any copy of the reportfurnished to the Bureau of Prisons orParole Commission, which might laterrely on the report.

Plea withdrawalRule 32(d) deals with withdrawal of a

plea of guilty or nolo contendere. Prior

1842 American Bar Association Journal

to the amendment the rule provided thata motion to withdraw a plea could bemade before a sentence was imposed orthe imposition of it suspended. It leftambiguous what standard the judge wasto apply and whether these provisionsapplied after a tentative sentence hadbeen imposed while the defendant wasremanded for study under 18 U.S.C. §4205(c). The rule (in another part)provided that, to correct "manifestinjustice," the court could set aside ajudgement of conviction even after sen-tence and permit the defendant to with-draw his plea. Thus the rule did providea standard ("manifest injustice") butonly for the post-sentence motion.

The difficulty was that after convic-tion and sentence, precisely the sameresult could be accomplished if thedefendant proceeded under 28 U.S.C. §

What happens whena juror is unable tocontinue in deliberations?New Rule 23(b) allowsthe court to acceptas valid a verdictby 11 jurors.

2255, which provides for a collateralattack on a conviction. The standardunder Section 2255 seems to be verysimilar to the "manifest injustice" stan-dard. Under Section 2255 the standard isthat stated in Hill v. United States, 368U.S. 424 (1962): "A fundamental defectwhich inherently results in a completemiscarriage of justice" or "an omissioninconsistent with the rudimentarydemands of fair procedure."

Some of the things that defendantshave felt invalidate a plea under one pro-cedure or the other are: that there existsa complete constitutional bar to convic-tion of the offense charged, see Brooksv. United States, 424 F.2d 425 (5th Cir.1970);- that the defendant was incompe-tent at -the time of his plea, see UnitedStates v. Masthers, 539 F.2d 721 (D.C.Cir. 1976); that the bargain the prosecu-

tor made with defendant was not kept,see Walters v. Harris, 460 F.2d 988 (4thCir. 1972); that he was not advised of theparole term or sentence he mightreceive; that the defendant expected alower sentence, see United States v.White, 572 F.2d 1007 (4th Cir. 1978); andthat the defendant's family coerced himto make the plea, see Wojtowicz v.United States, 550 F.2d 786 (2d Cir.1977).

The amendment clarifies some ambi-guities of this rule and in some measureeases the standard applied. First, itprovides that the rule may not be usedafter sentencing. At that point the onlyroute is a direct appeal or a Section 2255attack; the rule itself is confined to theperiod prior to sentencing. During thisperiod the amendment provides a stan-dard: the generous one of "any fair andjust reason." The amendment alsomakes clear that the rule applies tomotions made after provisional sentenc-ing but before the sentence is finalizedpending study of the defendant.

The practical effect of this amendmentprobably will not be great because mostcases seem to have applied a "fair andjust" standard to the pre-sentence situa-tion anyway and, in the post-sentencesituation, seemed to equate the "man-ifest injustice" standard of the rule withthe standard under Section 2255.

Other amendmentsRule 35, on correction or reduction of

sentence, is amended so that a sentencecan be reduced within 120 days after thesentence is imposed or probation isrevoked; in addition to the other situa-tions permitted by that rule. The rulepreviously implied that, in the probationrevocation situation, the sentence, if itwere going to be reduced, had to bereduced at the time of the revocation.

Some minor changes were made toRule 55 (recordkeeping by the trial courtin criminal cases). Rule 58 (forms) andthe appendix (setting forth some exam-ple forms for lawyers) were abrogated.

(Paul F. Rothstein is a professor atthe Georgetown University Law Centerand is chairperson of the Rules ofCriminal Procedure and Evidence Com-mittee of the ABA Criminal JusticeSection.)

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