RULE 33. NEW TRIAL
Effective Date: 3/1/2006
Obsolete Date: 3/1/2007
(a) Defendant's Motion. On the defendant's motion, the court may vacate any judgment and grant a new trial to that defendant if the interest of justice so 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.
(b) Motions.
(1) Newly Discovered Evidence. Any motion for a new trial based on newly discovered evidence must be filed within three years after the verdict or finding of guilty and be supported by an affidavit.
(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. 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 on the hearing of the motion.
(3) Appeal Pending. If an appeal is pending, the court may not grant a motion for a new trial until the case is remanded.
(c) Affidavits.
(1) 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 opposing party may respond with opposing affidavits, which must be served within 10 days after service of the motion for new trial. The court may extend the period for filing an opposing affidavit and may permit reply affidavits.
(2) 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, the court may require the affiant to attend a hearing for examination under oath.
(d) Other Post-Conviction Remedies. Nothing in this 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; March 1, 2007; March 1, 2011; March 1, 2021.
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.
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 declaration from seven to ten days.
Paragraph (b)(2) was amended, effective March 1, 2007, to eliminate the requirement that the trial court decide a motion for extension of time within ten days. Motions for extension of time must be made under Rule 45(b).
Paragraph (b)(2) was amended, effective March 1, 2011, to increase the time to make a motion for new trial for a reason other than newly discovered evidence from 10 to 14 days. Paragraph (c)(1) was concurrently amended to increase the time to respond to a new trial declaration from 10 to 14 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.
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. The 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 conviction. An appeal may be taken within 30 days after entry of the order denying the motion for a new trial. 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.
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.
Rule 33 was amended, effective March 1, 2021, to delete the term “affidavit” and replace it with “declaration.” This amendment was made in response to N.D.C.C. ch. 31-15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.
SOURCES: Joint Procedure Committee Minutes of April 24, 2020, pages 4-5; April 29-30, 2010, page 20; January 26, 2006, page 10; April 28-29, 2005, page 33; January 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; Fed.R.Crim.P. 33.
STATUTES AFFECTED:
SUPERSEDED: N.D.C.C. ch. 29-24.
CONSIDERED: N.D.C.C. ch. 31-15; §§ 29-23-11, 29-28-29, ch. 29-32, ch. 29-32.1, ch. 31-03.
CROSS REFERENCE: N.D.R.App.P. 4 (Appeals—When taken); N.D.R.Crim.P. 37 (Appeal as of Right to District Court; How Taken); N.D.R.Crim.P. 45 (Computing and Extending Time); N.D.R.Crim.P. 47 (Motions).