TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 11, 2014
RE: Rule 33, N.D.R.Crim.P., New Trial
Law Clerk Amy Schutt has submitted a memorandum, attached, requesting an amendment to Rule 33 that would specifically add "weight of the evidence" as a ground for requesting a new trial in a criminal case.
Ms. Schutt points out that many criminal defendants make motions under Rule 29 for dismissal based on insufficiency of evidence and then, when they appeal, make arguments to the Court about the weight of the evidence. As Ms. Schutt's memo shows, the Court has stated many times that a prerequisite for an appeal of a conviction based on the weight of the evidence is a new trial motion under Rule 33, which gives the trial court an opportunity to re-weigh the evidence. See State v. Morstad, 493 N.W.2d 645 (N.D. 1992) (copy attached)
Rule 33, which is based on the federal rule, does not specifically identify weight of the evidence as an issue on which a new trial motion can be based. Ms. Schutt believes that specifically referring to this ground for a new trial in the text of Rule 33 would be useful to make clear to defendants that a new trial motion is necessary when seeking reversal based on weight of the evidence.
Ms. Schutt references several rules from other states that specifically refer to weight of the evidence in their new trial rules. She suggests that we add a new subdivision to Rule 33 (based on the Tennessee rule, attached) referring to weight of the evidence and quoting the Court's standard for re-weighing evidence. Staff has drafted a proposal more in line with the Arizona rule (copy attached) that refers to weight of the evidence in the text of the rule and states the Court's standard for evaluating evidence weight in the explanatory note. The proposed amendments to Rule 33 are attached.