RULE 33. NEW TRIAL
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Rule 33 was amended, effective January 1, 1979; March 1, 1990.
Rule 33(a) is derived from Rule 33 of the Colorado Rules of Criminal Procedure and provides the court with the power to grant a new trial to a defendant if it determines that it is in the interests of justice to do so. This Rule differs from Rule 33 of the Federal Rules in that it requires that the motion point out with particularity the defects and errors complained of and that a motion based on newly discovered evidence or jury misconduct be supported by affidavits. Subdivision (a) was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Under this Rule, the court has no power to order a new trial on its own motion, but may act only upon a timely motion made by the defendant. This provision is intended to avoid problems of double jeopardy.
(United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610, rehearing denied, 332 U.S. 784, 68 S.Ct. 28, 92 L.Ed. 368 (1947).) It should be noted that this Rule does not affect the power of the court to declare a mistrial and order a new trial if such circumstances arise prior to verdict or finding of guilt as to warrant it.
A timely motion for a new trial suspends the running of the time to appeal from the judgment of conviction (see Rule 4(b), NDRAppP; and Rule 37(b)). An appeal may be taken within 10 days after entry of the order denying the motion for a new trial (see Rule 4(b), NDRAppP and Rule 37(b)). The appeal may then be taken from the judgment of conviction using the grounds raised in the motion for a new trial.
The provision of subdivision (b) which permits a motion for a new trial on grounds of newly discovered evidence, even though an appeal is pending (providing the case is remanded), is solely to expedite the proceedings. Under the Federal Rules essential requirements necessary to meet the test for a motion for a new trial based on newly discovered evidence are: (1) that the evidence must have been discovered since the trial (Johnson v. United States, 32 F.2d 127, 130 (8th Cir. 1929)); (2) that failure to learn of the evidence at the time of trial was not the result of defendant's lack of diligence (Nagell v. United States, 354 F.2d 441, 448-449 (5th Cir. 1966)); (3) that the newly discovered evidence is material to the issues at trial (Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1, further consideration of motion to remand postponed to hearing on the merits, 352 U.S. 808, 77 S.Ct. 14, 1 L.Ed.2d 39; motion of the government to remand denied, judgment vacated and case remanded with instructions to grant the defendants a new trial, 352 U.S. 862, 77 S.Ct. 8, 1 L.Ed.2d 72 (1956)); and (4) that the evidence is of such a nature that it would probably produce an acquittal in the event of retrial (8A Moore's Federal Practice and Procedure (Cipes, 2d Ed. 1972), 33.03(1), at page 33-12, 13).
"To prevail on a motion for a new trial on the ground of newly discovered evidence, the defendant must show (1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant's lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal." State v. VanNatta, 506 N.W.2d 63, 70 (N.D. 1993).
Subdivisions (c) and (d)(1) are derived from Rule 26.04, Minnesota Rules of Criminal Procedure. The purpose of these subdivisions is to specify the materials to be used in submitting and hearing a motion for new trial. The motion is heard on the minutes of the court, the exhibits introduced at trial, and other matters on file. Affidavits are permitted to supply facts not otherwise shown as a part of the minutes. Minutes include the unofficial and untranscribed notes of the court reporter, notes of the clerk of court indicating which exhibits have been received, and the notes made by the trial judge during the course of the trial. The file includes all formal documents in the court file. The use of a complete or partial transcript of the proceedings is also permitted. Subdivision (d)(2) embodies that part of former 29-24-03, N.D.C.C., which provided that the court may compel an affiant who is a resident of this State to appear personally before the court and be cross-examined under oath on matters set forth in the affiant's affidavit. The pertinent provisions of Rule 17 are also applicable to subpoenas issued pursuant to this Rule.
SOURCES: Minutes of Joint Procedure Committee Meetings of April 20, 1989, page 4; December 3, 1987, page 15; January 12-13, 1978, pages 6-7; June 2-3, 1977, pages 5-7. Minutes of Rules Committee Meetings of December 11-15, 1972, pages 16-19; September 26-27, 1968, pages 16-17; Rule 33, Colo. Rules of Crim.P. (1964); Rule 26.04 Minn. Rules of Crim.P.; FRCrimP, Rule 33
; Wright, Federal Practice and Procedure: Criminal, 551-559 (1969); 8 Moore's Federal Practice, Chapter 33 (Cipes, 2d Ed. 1971); Barron, Federal Practice and Procedure: Criminal, 2281-2284 (1951).
SUPERSEDED: Chapter 29-24, NDCC.
CONSIDERED: 29-23-11, 29-28-29, Chapter 29-32, NDCC.
CROSS REFERENCES: Rule 4(b), NDRAppP, Appeals-When taken; Rule 37.-Appeal as of Right to District Court, or County Court With Increased Jurisdiction; How Taken, NDRCrimP; Rule 47.-Motions, NDRCrimP; Chapter 31 03, NDCC-Means of Compelling Attendance of Witnesses.