Extensive amendments to the Federal Rules of Criminal Procedure took effect
Dec. 1, 2002.

Among other things, federal district courts now have the option of
conducting initial appearances and arraignments by video teleconferencing.

The amendments are of three kinds: stylistic changes to all the rules,
substantive changes to eight rules, and changes meant to conform two rules
to the 2001 USA PATRIOT Act. They were sent to Congress by the U.S. Supreme
Court April 29. Congress having done nothing to disturb the amendments as
proposed, they will become effective automatically.

Teleconferencing

Changes to Rules 5 (initial appearance), 10 (arraignment), and 43
(defendant's presence), give judges discretion to conduct initial
appearances and arraignments by video teleconferencing, with the defendant's
consent. The Justice Department and others wanted to go further and allow
these proceedings to be conducted by teleconference even if the defendant
did not consent. The Judicial Conference, which sent the amendment package
to the high court, noted considerable opposition to the whole idea and took
the more limited route, concluding that requiring consent answered critics'
concerns.
Proposals of this nature have been in the works for more than a decade.
Courts have sought authority to conduct preliminary proceedings by
teleconferencing because of increasing caseloads, especially in districts
with international borders. The hope is that the new system will increase
efficiency and ease security problems that arise when courtrooms are packed
with numerous prisoners awaiting summary pretrial proceedings. Many federal
courts already have the necessary equipment for implementing the new system,
according to the report of the Judicial Conference's Committee on Rules of
Practice and Procedure.

The committee also acknowledged problems that may be raised by
teleconferencing, such as substandard equipment in some holding facilities,
the possibility that defendants will not appreciate the importance of the
proceeding, lost opportunities that might facilitate early plea
negotiations, and questions about the voluntariness of the consent when made
in the holding facility outside the judge's presence. However, it said that
many of these concerns are obviated by giving the district judge discretion
to decide whether to allow teleconferencing or not.

Other Substantive Changes

Under amended Rule 5.1, a preliminary hearing may be continued by a
magistrate judge even if the defendant does not consent, so long as a
showing is made that extraordinary circumstances exist and justice requires
the delay. This change sets up a conflict with 28 USC 2072(b), but under 18
USC 3060, Congress's agreement to the rule change supersedes the statutory
provision.
Along with the changes concerning teleconferencing, Rule 10 is amended to
allow waiver of presence at arraignment. The waiver must to be in writing,
and waiver will not be permitted when the defendant is charged with a felony
information, is standing mute, or is entering a conditional plea or plea of
guilty or nolo contendere.

Rule 12.2, concerning the insanity defense, is amended to make clear that a
court may order a defendant to submit to an mental examination once the
defendant indicates an intention to raise a defense of mental condition
bearing on guilt. Other changes to that rule go to situations in which the
defendant intends to present expert evidence--testimonial or otherwise--of
his mental condition at capital sentencing. In such a case, the court may
require the defendant to give notice of that intent and order a mental
examination of the defendant. The results of such an examination will not be
available to the government unless the defendant is convicted of a capital
crime and reaffirms the intent to introduce expert mental-condition evidence
at sentencing.

The amendments add a new Rule 12.4 governing disclosure of two kinds of
information: the identity of a corporate party's parent corporation, and the
identity of organizational victims.

Rule 30, covering jury instructions, is changed to allow the court to ask
for proposed jury instructions before trial.

Rule 35, on correcting or reducing a sentence, is changed to expand the
situations under which a defendant may obtain a post-conviction reduction of
sentence to reflect his substantial assistance in prosecuting another. A
reduction is available (1) when the defendant provided information within
the one-year time limit, but the information did not become useful to the
government until the one-year deadline passed, and (2), when the defendant
could not reasonably anticipate the significance of information he had until
after the deadline passed, and he provided it to the government as soon its
significance became reasonably apparent to him.

Responding to PATRIOT Act

Amendments to the rules on grand juries and search warrants, Rules 6 and 41,
reflect changes made to those rules by the USA PATRIOT Act, which became law
in late October 2001; see 70 CrL 93.
In the statute, Congress authorized grand jury information involving
terrorism to be shared with certain law enforcement entities. It also
provided authority for magistrate judges to issue search warrants for
property in other districts in cases involving terrorism.

The amendments to Rules 6 and 41 make technical changes in Congress's
language so as to conform the rules to the comprehensive stylistic revision
of the criminal rules, discussed below. As the previous article notes in the
portion headed "Grand Jury Information," the stylistic revision has
frustrated, for the time being, Congress's recent attempt in the 2002
Homeland Security Act to make additional changes to Rule 6.

Stylistic Changes

Although change to other rules have been dubbed "stylistic," the report of
the Committee on Rules of Practice and Procedure noted that they may affect
practice in some districts.
According to that report, the most significant of the stylistic changes
include the following:

Rule 4, covering arrest warrants and summonses based on complaints, is
conformed to a recent law authorizing arrest warrants to be executed outside
the United States on military and Defense Department personnel.
Rule 5, covering the initial appearance, is conformed to the same law, which
authorizes a magistrate judge to conduct such proceedings by overseas
telephone. Amended Rule 5 also provides increased flexibility as to the
district in which the initial appearance may be held.

Rule 7 makes clear that charges of criminal contempt need not be initiated
by indictment.

Rule 9, governing arrest warrants and summonses based on indictments and
informations, give a court discretion not to issue an arrest warrant if the
defendant has not responded to a summons and the government does not request
a warrant.

Rule 12, which covers pleadings and pretrial motions, gives individual
judges exclusive authority to set deadlines.

Rule 16's requirement that defendants disclose reports of examinations and
tests they intend to "introduce" is amended to require disclosure of
examinations and tests defendants intend to "use."

Rule 17, covering subpoenas, is changed to reflect an amendment to 28 USC
636(e), which authorizes a magistrate judge to hold a person in contempt for
disobeying a subpoena.

Rule 24 is amended to remove language that could be construed as authorizing
a represented defendant to voir dire prospective jurors.

Rule 26 is amended to accommodate witnesses who are unable to speak, by
replacing the phrase "oral testimony" with "testimony."

Rule 31 is changed to clarify that juries may return partial verdicts,
either as to multiple defendants or multiple counts.

Rule 32, which covers sentencing and judgment, is amended in two ways.
Victims of child pornography are included as victims of "crimes of violence
or sexual abuse," and the court will be obliged to give notice to the
parties of a possible departure on a ground not identified in the
presentence report.

Rule 32.1 establishes a procedural framework for prosecuting a defendant
charged with violating probation or supervised release.

Rule 42 is amended by the addition of procedures for appointing an attorney
to prosecute a contempt. That rule is also changed to recognize the
authority of a magistrate judge to summarily punish a criminal contemnor.

Rule 46 is amended by deletion of the requirement that the government file
bi-weekly reports with the court concerning the status of defendants in
pretrial detention.

Rule 49 is amended to allow courts to use electronic means to issue notice
of an order on any post-arraignment motion.

Rule 52's reference to "plain error or defect" is changed to "plain error"
so as to eliminate ambiguity,

Rule 54 is amended to move the definitions previously set forth there to
Rule 1.

Congressional Amendment

Although Congress appears not to have had the amendment package in mind when
it passed the Homeland Security Act, a bill passed a less than two months
earlier caught and corrected an error in the Supreme Court's submission. The
amendment package omitted some existing provisions of Rule 16 imposing
reciprocal discovery obligations. Congress decided that the omission was
inadvertent; therefore, it restored the lost provisions by way of Section
11019 of the 21st Century Department of Justice Appropriations Authorization
Act, Pub.L. No. 107-273.