RULE 33. NEW TRIAL (a)
Defendant's Motion. On a the defendant's motion, the court
any judgment and grant a new trial to that defendant if the interests
interest of justice so
require requires. A motion for a new trial must specify the alleged
defects and errors with
particularity. If the case was tried without a jury, the court may take additional testimony
and enter a new judgment.
Motion Based on Newly Discovered Evidence Motions.
(1) Newly Discovered Evidence.
A Any motion for a
new trial based on newly discovered
evidence must be supported by an affidavit. A motion for a new trial based on newly
discovered evidence may only be made within 30 days after discovery of the facts on which
the motion is made and filed within three years after the verdict or finding of
guilty and be
supported by an affidavit. But if an appeal is pending, the court may grant the
on remand of the case.
(c) Motion Based on Other Ground. A (2) Other Grounds. Any
motion for a new trial
based on any reason other than newly discovered evidence must be filed within 10 days after
the verdict or finding of guilty, or within such further time frame as the court sets during the
10-day period. Any motion for a new trial based on jury misconduct must be supported by
an affidavit. A Any motion for a new trial based on any other grounds
may 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 on the
hearing of the motion.
A motion may only be made within 7 days after the verdict or finding of guilty or within
such further time as the court may fix during the 7-day period.
(3) Appeal Pending. If an appeal is pending, the court may not grant a motion for a new trial until the case is remanded.
(d) (c) Affidavits.
.) Response to Affidavit. If a motion for a new trial is
based on an affidavit, the affidavit
must be served with the notice of motion. The The opposing party
shall have 7 days after
service within which to serve may respond with opposing affidavits, which
period may be
extended by court order must be served within 10 days after service of the motion
trial. The court may extend the period for filing an opposing affidavit and may
.) Affiant's Attendance. If an affidavit is presented to
the court in support of or in
opposition to a motion for a new trial and the affiant is a resident of this State
state, the court
may compel require the affiant's attendance at
affiant to attend a hearing for examination
(e) (d) Other Post-Conviction Remedies. Nothing in this
Rule rule may be construed to
affect the remedies provided by N.D.C.C. ch. 29-32.1.
Rule 33 was amended, effective January 1, 1979; March 1, 1990; March 1, 2000; March 1, 2006.
Rule 33 Subdivision (b) was amended, effective March 1, 2000,
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
Paragraph (b)(1) was amended, effective March 1, 2006, to eliminate the requirement that a motion for a new trial based on newly discovered evidence be made within 30 days after discovery of the new evidence.
Paragraph (b)(2) was amended, effective March 1, 2006, to increase the time to make a motion for new trial for a reason other than newly discovered evidence from seven to ten days. Paragraph (c)(1) was concurrently amended to increase the time to respond to a new trial affidavit from seven to ten days
Rule 33 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Rule 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. The Rule rule does not affect the power
of the court to declare
a mistrial and order a new trial prior to the verdict or finding of guilty.
A timely motion for a new trial suspends the time to appeal from the judgment of
N.D.R.App.P. 4(b); N.D.R.Crim.P. 37(b). An appeal may be taken
within 10 30
days after entry of the order denying the motion for a new trial. 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
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
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,
N.W.2d 63, 70 (N.D. 1993).
Minutes include the unofficial and untranscribed notes of the court reporter or court recorder and notes of the clerk of court indicating which exhibits have been received. The file includes all formal documents in the court file.
SOURCES: Joint Procedure Committee Minutes of April 28-29, 2005, page 33;
27-28, 2005, pages 29-31; May 6-7, 1999, pages 17-18; April 20, 1989, page 4; December
3, 1987, page 15; January 12-13, 1978, pages 6-7; June 2-3, 1977, pages 5-7; 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.; Fed.R.Crim.P. 33.
SUPERSEDED: N.D.C.C. ch. 29-24.
CONSIDERED: N.D.C.C. §§ 29-23-11, 29-28-29, ch. 29-32, ch. 29-32.1, ch. 31-03.
CROSS REFERENCE: N.D.R.App.P. 4
(b), (Appeals --When taken);
(Appeal as of Right to District Court; How Taken); N.D.R.Crim.P. 47 (Motions) ;
ch. 31-03. -- Means of Compelling Attendance of Witnesses.