On April 19, the Supreme Court issued orders adopting amendments to the Federal Rules of Civil Procedure, Criminal Procedure, Bankruptcy Procedure, and Appellate Procedure.  A few of the changes may be of interest to our readers.

First, an amendment to the Rules of Appellate Procedure eliminated the requirement that a brief separately provide a statement of the case (which focused on the procedural history) and a statement of the facts.  Rule 28(a)(6) now simply requires a “a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record (see Rule 28(e)).”  This brings the Appellate Rules into line with the Rules of the Supreme Court, which long ago abandoned the annoying requirement of having to separate the procedural and factual histories of the litigation.

Second, Rule 11 of the Federal Rules of Criminal Procedure now require a sentencing court, before accepting a guilty plea, to ensure that the defendant understands “that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.”  This rule reflects the Supreme Court’s decision in Padilla v. Kentucky, holding that a defendant’s lawyer provides ineffective assistance of counsel if she does not advise her client of the immigration consequences of a guilty plea.  By requiring the court to also give the same information during the plea colloquy, the rule provides additional protection to both defendants (who are more certain to get the information) and prosecutors (who can argue on appeal or habeas that any failure by defense counsel to provide the advice required by Padilla was harmless because the court gave the defendant the required notice).

Third, Rule 803 of the Rules of Evidence was changed to allow, in a criminal case, admission of a government official’s certification of the absence of a public record if the prosecution gives the defendant notice of its intent to introduce the document fourteen days before trial and the defendant does not object within seven days before the trial.  This revision is almost certainly a reaction to the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, in which the Court held that certain kinds of documentary evidence (in Melendez-Diaz, it was a lab report finding that the substance found on the defendant was cocaine) violate a criminal defendant’s rights under the Confrontation Clause of the Sixth Amendment if admitted into evidence without the document’s author being put on the stand to testify as to its contents.  The revision to Rule 803 sets up a procedure under which a defendant will waive that constitutional right – at least with respect to a certification testifying to the absence of a public record – if he does not object to its admission after receiving notice prior to trial.  [Disclosure:  Lawyers currently affiliated with the law firm of Goldstein & Russell, P.C., who work for or contribute to this blog in various capacities, were among the counsel to the petitioner in Melendez-Diaz.]

Posted in What's Happening Now

Recommended Citation: Kevin Russell, Recent amendments to Federal Rules, SCOTUSblog (May. 8, 2013, 11:48 AM), http://www.scotusblog.com/2013/05/recent-amendments-to-federal-rules/