RULE 33. NEW TRIAL 1 (a) Defendant's motion. On the defendant's motion, the court may vacate
2 any judgment and grant a new trial to that defendant if the verdict is contrary to the
3 weight of the evidence or if the interest of justice so requires. A motion for a new
4 trial must specify the alleged defects and errors with particularity. If the case was
5 tried without a jury, the court may take additional testimony and enter a new
7 (b) Motions.
8 (1) Newly discovered evidence. Any motion for a new trial based on newly
9 discovered evidence must be filed within three years after the verdict or finding of
10 guilty and be supported by an affidavit.
11 (2) Other grounds. Any motion for a new trial based on any reason other
12 than newly discovered evidence must be filed within 14 days after the verdict or
13 finding of guilty. Any motion for a new trial based on jury misconduct must be
14 supported by an affidavit. Any motion for a new trial based on any other grounds
15 may be made on the file, exhibits, and minutes of the court. Pertinent facts not a
16 part of the minutes may be shown by affidavit except as otherwise provided in
17 these rules. Either party may procure a complete or partial transcript of the
18 proceedings for use on the hearing of the motion.
19 (3) Appeal pending. If an appeal is pending, the court may not grant a
20 motion for a new trial until the case is remanded.
21 (c) Affidavits.
22 (1) Response to affidavit. If a motion for a new trial is based on an
23 affidavit, the affidavit must be served with the notice of motion. The opposing
24 party may respond with opposing affidavits, which must be served within 14 days
25 after service of the motion for new trial. The court may extend the period for filing
26 an opposing affidavit and may permit reply affidavits.
27 (2) Affiant's attendance. If an affidavit is presented to the court in support
28 of or in opposition to a motion for a new trial and the affiant is a resident of this
29 state, the court may require the affiant to attend a hearing for examination under
31 (d) Other post-conviction remedies. Nothing in this rule may be construed
32 to affect the remedies provided by N.D.C.C. ch. 29-32.1.
33 EXPLANATORY NOTE
34 Rule 33 was amended, effective January 1, 1979; March 1, 1990; March 1, 2000;
35 March 1, 2006; March 1, 2007; March 1, 2011;_________________.
36 Subdivision (a) was amended, effective_______________, to specify that
37 the court may grant a new trial when the verdict is against the weight of the
38 evidence. A verdict is against the weight of the evidence if the trial court
39 concludes, "despite the abstract sufficiency of the evidence, the evidence
40 preponderates sufficiently heavily against the verdict that a serious miscarriage of
41 justice may have occurred." See State v. Yineman, 2002 ND 145, 651 N.W.2d 648.
42 Subdivision (b) was amended, effective March 1, 2000, to provide the time
43 for moving for a new trial runs from the "verdict or finding of guilty" rather than
44 the "final judgment." The amendment also extended the time for moving for a new
45 trial based on newly discovered evidence from two to three years.
46 Paragraph (b)(1) was amended, effective March 1, 2006, to eliminate the
47 requirement that a motion for a new trial based on newly discovered evidence be
48 made within 30 days after discovery of the new evidence.
49 Paragraph (b)(2) was amended, effective March 1, 2006, to increase the
50 time to make a motion for new trial for a reason other than newly discovered
51 evidence from seven to ten days. Paragraph (c)(1) was concurrently amended to
52 increase the time to respond to a new trial affidavit from seven to ten days.
53 Paragraph (b)(2) was amended, effective March 1, 2007, to eliminate the
54 requirement that the trial court decide a motion for extension of time within ten
55 days. Motions for extension of time must be made under Rule 45(b).
56 Paragraph (b)(2) was amended, effective March 1, 2011, to increase the
57 time to make a motion for new trial for a reason other than newly discovered
58 evidence from 10 to 14 days. Paragraph (c)(1) was concurrently amended to
59 increase the time to respond to a new trial affidavit from 10 to 14 days.
60 Rule 33 was amended, effective March 1, 2006, in response to the
61 December 1, 2002, revision of the Federal Rules of Criminal Procedure. The
62 language and organization of the rule were changed to make the rule more easily
63 understood and to make style and terminology consistent throughout the rules.
64 Under this rule, the court has no power to order a new trial on its own
65 motion, but may act only upon a timely motion made by the defendant. This
66 provision is intended to avoid problems of double jeopardy. The rule does not
67 affect the power of the court to declare a mistrial and order a new trial prior to the
68 verdict or finding of guilty.
69 A timely motion for a new trial suspends the time to appeal from the
70 judgment of conviction. An appeal may be taken within 30 days after entry of the
71 order denying the motion for a new trial. The appeal may then be taken from the
72 judgment of conviction using the grounds raised in the motion for a new trial.
73 To prevail on a motion for a new trial on the ground of newly discovered
74 evidence, the defendant must show (1) the evidence was discovered after trial, (2)
75 the failure to learn about the evidence at the time of trial was not the result of the
76 defendant's lack of diligence, (3) the newly discovered evidence is material to the
77 issues at trial, and (4) the weight and quality of the newly discovered evidence
78 would likely result in an acquittal.
79 Minutes include the unofficial and untranscribed notes of the court reporter
80 or court recorder and notes of the clerk of court indicating which exhibits have
81 been received. The file includes all formal documents in the court file.
82 Sources: Joint Procedure Committee Minutes of __________________;
83 April 29-30, 2010, page 20; January 26, 2006, page 10; April 28-29, 2005, page
84 33; January 27-28, 2005, pages 29-31; May 6-7, 1999, pages 17-18; April 20,
85 1989, page 4; December 3, 1987, page 15; January 12-13, 1978, pages 6-7; June 2-
86 , 1977, pages 5-7; December 11-15, 1972, pages 16-19; September 26-27, 1968,
87 pages 16-17; Fed.R.Crim.P. 33.
88 Statutes Affected:
89 Superseded: N.D.C.C. ch. 29-24.
90 Considered: N.D.C.C. §§ 29-23-11, 29-28-29, ch. 29-32, ch. 29-32.1, ch.
92 Cross Reference: N.D.R.App.P. 4, (Appeals -- When taken); N.D.R.Crim.P.
93 37 (Appeal as of Right to District Court; How Taken); N.D.R.Crim.P. 45
94 (Computing and Extending Time); N.D.R.Crim.P. 47 (Motions).