RULE 33. NEW TRIAL
(a) Grounds for Motion. On a defendant's motion, the court
The court on motion of a defendantmay grant a new trial to that defendant if required in the interests of justicethe interests of justice so require. TheA motion for a new trial must point out with particularityspecify the alleged defects and errors with particularity complained of.
(b) Motion Based on Newly Discovered Evidence
or Jury Misconduct. A motion for a new trial based uponon newly discovered evidence or jury misconduct shallmust be supported by affidavitsan affidavit. A motion for a new trial based on the ground ofnewly discovered evidence mustmay only be made within 30 days after discovery of the facts upon which it is madeon which the motion is made and within 23 years after final judgment,the verdict or finding of guilty. butBut if an appeal is pending, the court may grant the motion only on remand of the case.
(c) Motion Based on Other Ground. A motion for a new trial based on jury misconduct must be supported by an affidavit. A motion for a new trial based on any other grounds
shallmay only be made on the file, exhibits, and minutes of the court. Pertinent facts not a part of the minutes may be shown by affidavit except as otherwise provided in these Rules. Either party may procure a complete or partial transcript of the proceedings for use upon the hearing of the motion. TheA motion shallmay only be made within 7 days after the verdict or finding of guiltguilty or within such further time as the court may fix during the 7-day period.
1. If a motion for a new trial is based on an affidavit, the affidavit
shallmust be served with the notice of motion. The opposing party shall have 7 days after theservice inwithin which to serve opposing affidavits, which period may be extended by thecourt on anorder extending the time for hearing under this Rule. The court may permit reply affidavits.
affidavits arean affidavit is presented to the court in support of or in opposition to a motion for a new trial and the affiants are residentsaffiant is a resident of this State, the court may compel their personalthe affiant's attendance at a hearing before it and they may be examinedfor examination under oath , touching the matters set forth in their affidavits.
(e) Other Post-Conviction Remedies. Nothing in this Rule
shallmay be construed to affect the remedies provided by Chapter 29-32.1,N.D.C.C. Ch. 29-32.1.
Rule 33 was amended, effective January 1, 1979; March 1, 1990: _________________________________.
Rule 33 was amended, effective ______________, to provide the time for moving for a new trial runs from the "verdict or finding of guilty" rather than the "final judgment." The amendment also extended the time for moving for a new trial based on newly discovered evidence from two to three years. Finally, stylistic changes were made to the rule.
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.
It should be noted that thisThe Rule does not affect the power of the court to declare a mistrial and order a new trial if such circumstances ariseprior to the verdict or finding of guilty guilt as to warrant it.
A timely motion for a new trial suspends
the running ofthe time to appeal from the judgment of conviction (see Rule 4(b), NDRAppP; and Rule 37(b)). N.D.R.App.P. 4(b); N.D.R.Crim.P. 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)). N.D.R.App.P. 4(b); N.D.R.Crim.P. 37(b). The appeal may then be taken from the judgment of conviction using the grounds raised in the motion for a new trial.
"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).
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.
SOURCES: Joint Procedure Committee Minutes 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
.; Joint Procedure Committee Minutes ofDecember 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.
SUPERSEDED: Chapter 29-24, N.D.C.C.
CONSIDERED: 29-23-11, 29-28-29, Chapter 29-32, N.D.C.C.
CROSS REFERENCES: Rule 4(b), N.D.R.App.P., Appeals-When taken; Rule 37.-Appeal as of Right to District Court, or County Court With Increased Jurisdiction; How Taken, N.D.R.Crim.P.; Rule 47.-Motions, N.D.R.Crim.P.; Chapter 31 03, N.D.C.C.-Means of Compelling Attendance of Witnesses.