Law Commons^™

Federal Rules Pending Public Comment, David A. Schlueter

Faculty Articles

In August 2011, the Administrative Office of the United States Courts published several rules for public comment. The amendment to Rule 11 would require the judge to apprise a defendant who wishes to plead guilty that, if convicted and not a United States citizen, the defendant may be deported, denied citizenship, and denied future admission to the United States. Several amendments have been proposed for Rule 12 with reference to the appropriate times for pleadings and pretrial motions, and the consequences and standards of review for untimely motions. The change to Rule 34 is intended to conform the rule to …

Federal Rules Update: How Rules Are Made: A Brief Review, David A. Schlueter

Faculty Articles

A number of amendments to the Federal Rules of Procedure and Evidence became effective on December 1, 2009. The change to Criminal Rule 7 deleted subdivision (c)(2), which required that the indictment include notice that the defendant has an interest in forfeitable property. Criminal Rule 32 now provides that the presentence report state whether the government is seeking forfeiture of property. Criminal Rule 32.2 received six amendments concerning criminal forfeiture. Criminal Rule 41 created a two-step process for seizing and reviewing electronic storage media. Further, of the Rules Governing § 2254 Proceedings, Rule 11 was created to make the requirements …

Federal Rules Update: Amendments To The Federal Rules Of Procedure And Evidence, David A. Schlueter

Faculty Articles

In a very unusual step, Congress enacted Federal Rule of Evidence 502. This rule deals with the attorney-client and work product privileges. The proposal for this rule was driven primarily by the concern over rising litigation costs associated with discovery, especially electronic discovery. Experience had demonstrated that in complex litigation cases lawyers spend considerable time and effort to preserve privileged documents. If a privileged document is mistakenly produced, there is a risk that a court would find subject matter waiver, not only in the case at bar, but in other cases as well.

The new rule became effective on September …

Federal Rules Update: Technology-Related Rules, David A. Schlueter

Faculty Articles

In June 2009, the Standing Committee on the Federal Rules of Procedure and Evidence authorized publication for comment on a number of technology-related rules of criminal procedure. Criminal Rule 1 would state that the terms “telephone,” “telephonic,” or “telephonically” mean any form or live electronic voice communication. Rule 3 would allow officers to submit a complaint and supporting material electronically. Changes to Rule 4 would address electronically processed and submitted arrest warrants. Proposed new Rule 4.1 would permit magistrate judges to consider information presented electronically in deciding whether to issue a warrant or summons or approve a complaint. The amendment …

Federal Rules Update: How Rules Are Made: A Brief Review, David A. Schlueter

Faculty Articles

In January 2008 and June 2008, the Standing Committee on the Rules of Procedure and Evidence authorized publication for comment on a number of rules of criminal procedure. The amendment to Criminal Rule 5 would include a requirement that, in deciding whether to release or detain a defendant, the court must consider the “right of any victim to be reasonably protected from the defendant.” The change to Criminal Rule 12.3 states that the name and address of the victim should not be automatically disclosed to the defense. Criminal Rule 15 would permit an unavailable witness to be deposed outside of …

Criminal Rules Amendments Effective As Of December 2007, David A. Schlueter

Faculty Articles

A number of amendments to the Federal Rules of Procedure and Evidence became effective on December 1, 2007. Criminal Rule 11 was amended to conform the rule to the Supreme Court’s decision in United States v. Booker, which held that the sections in the federal sentencing statute that made pleas mandatory violated the fifth and sixth constitutional amendments. Criminal Rule 32 was made to conform to United States v. Booker by making it clear that the court may require the probation office to include in the presentence report information relevant to factors set out in 18 U.S.C § 3553(a). The …

Federal Rules Update: How Rules Are Made: A Brief Review, David A. Schlueter

Faculty Articles

In June 2007, the Standing Committee on the Federal Rules of Procedure and Evidence authorized publication for comment on a number amendments to the rules of criminal procedure. The amendment to Criminal Rule 7 would delete subdivision (c)(2) because it is covered in Rule 32.2(a). The change to Criminal Rule 32 would provide that the presentence report should state whether the government is seeking forfeiture of property. Amendments to Criminal Rule 32.2. would change a number of procedures related to criminal forfeiture. Criminal Rule 41 would create a two-step process for seizing and reviewing electronic storage media. Amendments to the …

A Call For Comment: Restyling And Amending The Federal Rules Of Criminal Procedure, David A. Schlueter

Faculty Articles

In August 2000, the Judicial Conference’s Committee on Rules of Practice and Procedure published—for public comment—proposed amendments to the entire set of Federal Rules of Criminal Procedure. The proposals mark the culmination of a two-year project to “restyle” the rules—to modernize and reorganize and to make them internally consistent in format and style. Not since the rules were first promulgated in 1946 has there been such a significant change in the structure, format, and substance. This article first addresses the rule-making process for the Federal Rules of Criminal Procedure, and then examines the restyling process. Finally, it notes several of …