THE ADVISORY COMMITTEE
FEDERAL RULES OF CRIMINAL PROCEDURE
October 13-14, 1997
The Advisory Committee on the Federal Rules of Criminal Procedure met at
Monterey, California on October 13th and 14th, 1997. These minutes reflect the discussion
and actions taken at that meeting.
I. CALL TO ORDER & ANNOUNCEMENTS
Judge Davis, Chair of the Committee, called the meeting to order at 8:30 a.m. on
Monday, October 13, 1997. The following persons were present for all or a part of the
Hon. W. Eugene Davis, Chair
Hon. D. Lowell Jensen
Hon. Edward E. Carnes
Hon. George M. Marovich
Hon. David D. Dowd, Jr.
Hon. D. Brooks Smith
Hon. John M. Roll
Hon. Tommy E. Miller
Hon. B. Waugh Crigler
Hon. Daniel E. Wathen
Prof. Kate Stith
Mr. Robert C. Josefsberg, Esq.
Mr. Darryl W. Jackson, Esq.
Mr. Henry A. Martin, Esq.
Mr. Roger Pauley, Jr., designate of the Asst. Attorney General for the Criminal Division
Professor David A. Schlueter, Reporter
Also present at the meeting were: Hon. Alicemarie Stotler, Chair of the Standing
Committee on Rules of Practice and Procedure; Mr. Peter McCabe and Mr. John Rabiej from
the Administrative Office of the United States Courts; Mr. David Pimentel, Judicial Fellow
at the Administrative Office, and Ms. Mary Harkenrider from the Department of Justice.
The attendees were welcomed by the incoming chair, Judge Davis, who welcomed
the two new members to the Committee, Judge Roll and Magistrate Judge Miller
II. APPROVAL OF MINUTES OF APRIL 1997 MEETING
Judge Marovich moved that the Minutes of the Committee's April 1997 meeting be
approved. Following a second by Professor Stith, the motion carried by a unanimous vote.
III. RULES PUBLISHED FOR PUBLIC COMMENT AND PENDING FURTHER
REVIEW BY ADVISORY COMMITTEE
The Reporter informed the Committee that at its June 1997 meeting, the Standing
Committee had approved the publication of a number of amendments to the Criminal
1. Rule 6. Grand Jury (Presence of Interpreters; Return of Indictment)
2. Rule 11. Pleas (Acceptance of Pleas and Agreements, etc.)
3. Rule 24(c). Alternate Jurors (Retention During Deliberations)
4. Rule 30. Instructions (Submission of Requests for Instructions)
5. Rule 32.2. Forfeiture Procedures.
6. Rule 54. Application and Exception.
The Reporter added that the Standing Committee had modified the proposed
amendment to Rule 6 to permit all necessary interpreters to be present during grand jury
deliberations--and not just interpreters for the hearing-impaired. The Committee believed
that it would be beneficial to obtain public comments on an amendment which would
expand the list oft those permitted to remain in the deliberations. Finally, the Reporter
informed the Committee that a hearing on the proposed amendments has been tentatively
set for December 12, 1997 in New Orleans. The Comment period ends on February 15,
IV. RULES APPROVED BY STANDING COMMITTEE AND FORWARDED TO
JUDICIAL CONFERENCE AND SUPREME COURT
The Reporter informed the Committee that at its June 1997 meeting, the Standing
Committee had approved and forwarded to the Judicial Conference the amendments to the
1. Rule 5.1 (Preliminary Examination; Production of Witness
2. Rule 26.2 (Production of Witness Statements; Applicability to Rule
3. Rule 31 (Verdict; Individual Polling of Jurors);
4. Rule 33 (New Trial; Time for Filing Motion);
5. Rule 35(b) (Correction or Reduction of Sentence; Changed
6. Rule 43 (Presence of Defendant; Presence at Reduction
or Correction of Sentence).
V. CRIMINAL RULE APPROVED BY SUPREME COURT
AND PENDING BEFORE CONGRESS
The Reporter informed the Committee that the Supreme Court had approved an
amendment to Rule 58 and that absent any further action by Congress, the amendment
would become effective on December 1, 1997.
VI. CRIMINAL RULES CURRENTLY UNDER CONSIDERATION
BY ADVISORY COMMITTEE
A. Report of Subcommittee on Victim Allocution Legislation; Possible
Amendments to Rules 11, 32, and 32.1.
Judge Davis offered introductory comments on pending legislation which would
amend a number of criminal rules to provide for notice to victims and victim allocution
when the accused enters a plea, at sentencing, and at revocation of probation proceedings.
He noted that in the past the Committee had been reluctant to provide for victim
allocution but that the proposed legislation provided the Committee with an opportunity
to re-examine its position. He noted that a subcommittee consisting of Judge Dowd
(Chair), Judge Smith, Mr. Josefsberg, and Mr. Pauley had been appointed to study the
legislation and recommend a course of action to the Committee.
Speaking for the subcommittee, Judge Dowd provided additional information on
the legislation, and the fact that it had apparently been offered as an alternative to a move
to amend the Constitution. He added that under the legislation, the Judicial Conference
would be given a short period of time to respond to the proposed changes and that the
role of the subcommittee had been to review the proposed changes and be prepared to
recommend changes to the full Committee for its consideration.
Mr. Rabiej believed that the legislation was not going to be passed in the current
session of Congress. Mr. Pauley agreed but indicated that the legislation might be passed
in the next session. He believed that the Committee might be overreacting to the
proposed legislation because it disregards the legislation proposed by the President and
the it disregards the fact that the legislation will only move at the behest of the chairs of
the congressional committees on the judiciary. He agreed, however, that the
subcommittee should continue to monitor the legislation.
Judge Jensen observed that the legislation put the committee in the unique posture
of requiring the Judicial Conference to react to specific amendments. Judge Stotler
echoed that view and indicated that once again there was a question about the
fundamental role of Congress in the rule-making enterprise. Justice Wathen noted that
from a State's perspective, there was concern that the victim's movement might result in
a constitutional amendment. Mr. Josefsberg opined that the proposed legislation seemed
to require very little, e.g., notice to victims of pending hearings and an opportunity to be
heard. Judge Marovich agreed with that assessment and saw little danger in the
legislation. Several members indicated that under the circumstances, it would be wise to
keep the subcommittee in place and ready to react to the legislation. Judge Jensen added
that for the most part the federal system was catching up to what was already in place in
many state and local jurisdictions. Judge Davis indicated that it would be appropriate,
absent the need for more immediate action, to discuss the subcommittee's proposals at
the Spring meeting. Following additional discussion concerning the definition of
"victim" and "alleged victim" in the proposed legislation, Judge Carnes moved that the
Committee express the view that it was not opposed to addressing the legislation. Mr.
Josefsberg seconded the motion which carried by a vote of 10 to 1, with one abstention.
B. Rule 5(c). Initial Appearance Before the Magistrate Judge.
Judge Davis provided a brief overview of a proposed amendment to Rule 5(c)
which would permit a magistrate judge to grant a continuance in a preliminary
examination over a defendant's objection. He noted that the Committee had previously
considered the matter at its April 1997 meeting and that because the amendment would
have directly contradicted 18 U.S.C. § 3060, that it had been referred to the Standing
Committee with a recommendation that the Committee take steps to initiate an
amendment to the statute. The Standing Committee responded by referring the proposal
back to the Advisory Committee and indicating that the most appropriate method of
effecting a change would be to follow the procedures in the Rules Enabling Act.
Following brief discussion on proposed style changes to the rule, Mr. Josefsberg moved
that the rule be amended. Judge Miller seconded the motion. Following additional
discussion on the motion, several members questioned whether the amendment was even
necessary. Judge Crigler observed that he had never seen the problem but Judge Miller
indicated that in larger cities, it would help if a magistrate judge had the authority to act
on a continuance opposed by the defendant. Judge Dowd indicated that in his 15 years of
experience, he had never experienced a problem with the rule. Ultimately, Mr. Josefsberg
withdrew his motion to approve the amendment.
Professor Stith moved to approve the amendment. Judge Miller seconded that
motion which failed by a vote of 5 to 7.
C. Rule 6. The Grand Jury. Legislative Proposal to Reduce Size of Grand
The Reporter indicated that at its April 1997 meeting the Committee had briefly
discussed pending legislation (sponsored by Congressman Goodlatte from Virginia)
which would reduce the size of grand juries. The matter had been carried over as an
agenda item to permit additional research and discussion of the issue.
Mr. Josefsberg indicated that if the grand jury system were to continue, that the
current size should be retained. Justice Wathen noted that Maine had reduced the size of
its grand juries and that many regretted that reduction. Judge Carnes added that in his
experience reducing the size of the grand jury would risk the danger of runaway
prosecutions. Both Mr. Martin and Judge Jensen shared the view that it was important to
get more, rather than less, people involved in the grand jury process. Ms. Harkenrider
added that the Department of Justice had sent a letter to Congress last year recommending
that the current size of grand juries be retained.
Judge Carnes moved that the Committee oppose any reduction of size in the grand
jury. Professor Stith seconded the motion, which carried by a vote of 12 to 0.
D. Rule 11. Pleas. Report of Subcommittee on Proposed Amendments re
Notice to Defendant of Relevant Sentencing Information.
Judge Marovich provided an overview of the Rule 11 subcommittee's work on
Rule 11 issues. He noted that a number of proposals were in the process of approval and
that one issue remained for discussion--the question of whether the Government should
be required to notify a defendant of the sentencing factors it intended to rely upon during
sentencing, following a plea of guilty. Judge Marovich noted that Professor Stith had
provided a memo detailing reasons for such a requirement and that the Department of
Justice had responded with reasons for rejecting that requirement. He noted that over the
last several years the Committee had touched upon the issue of whether anything more
should, or could, be done to insure that a defendant was entering a voluntary and knowing
plea of guilty, in the context of guideline sentencing.
Professor Stith provided a lengthy explanation of why Rule 11 should be amended
to provide for some form of notice to a defendant on what sort of sentencing information
the prosecution would be relying upon. She noted that the sentencing procedural rules
had not kept pace with actual practice and that there was two particular problem areas.
First, the question of what the Government would consider to be "relevant conduct." And
second, whether the defendant had been a leader or organizer in the alleged criminal
activity. It is unrealistic, she said, to assume that a defendant would be able to calculate
the effect of such factors, even with the assistance of a defense counsel. She noted that
her proposal requiring notice would simply shift the sentencing calculus to pre-plea
Judge Marovich responded by observing that defendants typically want the trial
judge to make factual decisions earlier in the process and cannot understand why the
judge cannot take a more active role in the plea bargaining stage. Professor Stith
suggested that the Rules Enabling Act procedures would be an appropriate means of
obtaining debate and comment on her proposal.
Judge Dowd indicated that there seems to be a diversity of practice developing
with regard to what should be included in a plea agreement. There was not, in his view,
any uniform system of dealing with sentencing guideline issues in such agreements. The
real issue, he said, is what constitutes a knowing and voluntary plea of guilty.
Judge Davis observed that in those jurisdictions where there is a heavy caseload,
the trial judges generally permit the defendant to withdraw a plea under Rule 32 if there is
any real question about whether the plea is knowing and voluntary. Judge Marovich,
however, noted that there is some dispute as to what constitutes a fair and just reason for
withdrawing a plea and that sentencing proceedings had become more adversarial. And
that, said Judge Dowd, leads to a lack of uniformity in practice.
Ms. Harkenrider expressed the view that a system of government notice was not
required. Under the current procedures, the prosecutors cannot control what ultimate
sentence will be imposed by the court. She added that it would be difficult to draft a rule
which would adopt such a notice provision. On the other hand, she noted, it would be
better to rely upon the experience and advice of defense counsel to inform the defendant
of what, if any, factors or facts, would impact on the sentence.
Mr. Josefsberg observed that in his experience as a defense counsel that
defendants do not always understand, or believe, what might happen during sentencing.
Amending Rule 11, he stated, would not help.
Ms. Harkenrider continued by noting that if a defendant wants more certainty in
sentencing, he or she is free to agree to a specific sentence under Rule 11(e)(1)(C). And
the Committee has already taken steps to provide for more certainty in sentencing. In
most cases, she added, an amendment to Rule 11 would not fix any problems with a lack
Mr. Martin noted that generally most agreements do not cover a specific sentence
under Rule 11(e)(1)(C). He urged the Committee to consider providing for more notice
in Rule 11 and to approve, in concept, an amendment to the rule. He noted that a study
by the Federal Judicial Center has indicated that private practitioners were at the bottom
of the list in understanding the sentencing guidelines. He noted that he would prefer to
see the prosecutors more involved in the sentencing decisions, rather than probation
Judge Roll was opposed to any proposal to require more notice to the defendant.
He noted that it would be difficult to determine what would constitute adequate notice
because of the variances in application of the sentencing guidelines among the judicial
circuits. He observed that the Committee might be aspiring to certainty which does not
Judge Marovich responded by noting that he did not disagree with the comments
opposing an amendment and that he agreed with the point that some problems are not
capable of a solution.
Judge Jensen reviewed some of the amendments which have already been made to
Rule 11 and that the Committee's work had already focused to some extent on disclosure,
even though the current rule lacks any enforcement mechanism. He agreed with those
who believed that it would be difficult to craft an enforceable notice provision in the rule.
Professor Stith responded that in her view, any notice provision would not be
binding on the trial court and that it could consider facts or factors presented by the
probation officer, but not the prosecutor.
After Judge Carnes questioned the advisability of tinkering with the rule, Mr.
Martin observed that adding a notice provision would not increase the number of not
Mr. Pauley observed that intuitively, there are bound to be withdrawn pleas of
guilty and that there must be a balance with the fairness to the defendant--who should
know as much as reasonably possible--and the fairness intended under the Sentencing
Reform Act--which was intended to reduce unwarranted sentence disparity. In short, he
said, similarly situated defendants should receive similar sentences.
Following additional brief comments, the Committee agreed do take a "straw"
vote on whether to proceed with drafting an amendment to Rule 11. The motion failed by
a vote of 5 to 7.
E. Rule 12.2. Notice of Insanity Defense or Expert Testimony of
Defendant's Mental Condition.
On behalf of the Department of Justice, Mr. Pauley presented a proposed
amendment to Rule 12.2 which would address the authority of the trial court to order a
mental examination of the defendant under 18 U.S.C. § 4247. He explained that as a
result of United States v. Davis, 93 F.3d 1286 (6th Cir. 1996), there is a real question
whether a court may order a custodial mental examination under Rule 12.2(b). To
remedy the problem, he indicated that Rule 12.2(c) could be amended to provide for such
an examination by adding a reference to § 4247.
Professor Stith questioned whether the proposal would extend to any mental
evidence or only expert testimony. Mr. Pauley explained how the rule would work and
what would trigger the need, or request, for such a mental examination. Judge Miller
observed that the rule would be narrower if the defendant intends to introduce the expert
testimony of his or her mental state.
Mr. Martin observed that that the amendment would raise a number of significant
constitutional issues and questioned whether there was really a problem to be fixed. He
pointed out that the Government got what it wanted in the Davis case.
Judge Davis observed that this was a complex issue and noted the interplay
between the defendant's notice of an intent to introduce mental evidence and a
government requested mental examination. If an examination is held, the Government
has the statements of the defendant, regardless of whether the defendant testifies or
otherwise introduces evidence of his or her mental health.
Mr. Pauley noted that whatever the merits of the proposal, there should be a
balance of opportunity for both the defense and the prosecution to present evidence on the
defendant's mental condition. Mr. Martin, however, questioned whether simply adding a
reference to § 4247 would remedy whatever gap existed; there was still the problem of
Following additional discussion, the Committee voted 11 to 1, with one
abstention, to consider a proposed draft amendment to Rule 12.2 at its next meeting.
F. Rule 23. Trial by Jury or by the Court. Discussion re Possible
Reduction of Size of Jury.
The Reporter indicated that pending legislation would reduce the size of juries in
federal criminal trials. Mr. Rabiej indicated that there had apparently been no real
movement on the proposal. Mr. Josefsberg noted that even with a provision permitting
the defendant to agree to a smaller jury, there was the risk that a judge would lean on a
defense counsel to waive a 12-person jury. Following brief discussion Judge Carnes
moved that the Committee oppose the legislation. The motion, which was seconded by
Judge Dowd, carried by a vote of 12 to 0.
G. Rule 24. Trial Jurors.
1. Discussion re Possible Amendments re Number of Peremptory
The Reporter informed the Committee that pending legislation (Section 501) in
the Crime Control Act of 1997 (S. 3) would amend Rule 24(b) by equalizing the number
of peremptory challenges. He informed the Committee that in 1990 and 1991, the
Committee had proposed a similar amendment, that it had been published for public
comment, and that the Standing Committee unanimously rejected the proposal at its
February 1991 meeting. Since then, the Committee had made no further attempts to
equalize the number of challenges, although there had been numerous attempts to do so
through legislation. But the Standing Committee's rejection of the Committee's proposal
had generally been used to convince Congress not to amend Rule 24(b).
Mr. Pauley indicated that the current status of the legislation was murky but that
Crime Bills do tend to get through during the second session of Congress.
Mr. Josefsberg moved that the Committee oppose any attempt to equalize
peremptory challenges. Judge Miller seconded the motion.
Following a brief discussion about the benefits and costs of amending the Rule,
the motion failed by a vote of 6 to 7.
Judge Roll moved that Rule 24(b) be amended to provide for 10 peremptory
challenges for each side in a noncaptial case. Following a second by Judge Dowd, the
motion carried by a vote of 7 to 6. The Reporter indicated that he would draft appropriate
amending language for the Committee's Spring 1998 meeting.
2. Proposed Amendments re Randomly Selected Petit and Venire
Juries and Deletion of Provision for Peremptory Challenges.
The Reporter informed the Committee that Judge William M. Acker, Jr. (N. Dist.
Alabama) had recommended that the Rules be amended to abolish peremptory challenges
and to provide for random selection of both the venire and petit juries. Following brief
discussion, a consensus emerged that no action should be taken on the proposal.
H. Rule 26. Taking of Testimony. Report by Subcommittee re Taking of
Testimony from Remote Location.
Judge Davis indicated that Judge Jensen had appointed a three-member
subcommittee to study a proposed amendment to Rule 26 which would permit
transmission of testimony from a remote location: Judge Carnes (Chair), Mr. Josefsberg,
and Mr. Pauley. Judge Carnes reported that the Subcommittee had considered the issue
and that it proposed that Rule 26 be amended to permit contemporaneous transmission of
testimony from a remote location where the court concluded that there were compelling
circumstances (and good cause shown) and that the witness was unavailable, as that term
is defined in Federal Rule of Evidence 804. He noted that there were potential
confrontation clause issues and that requiring a showing of "unavailability" was designed
to address that point. He also noted that the Committee might wish to address the issue
of the potential interplay between using depositions versus contemporaneous
transmission and whether one should be preferred over the other.
Judge Davis questioned whether the amendment should cover audio-only
transmissions and Judge Crigler raised concerns about relying only on an audio
transmission where the fact-finder and defendant would not be able to observe the
Following additional brief discussion on possible confrontation issues, the
Committee voted 12-0 to proceed with drafting an amendment to Rule 26 to provide for
contemporaneous transmission. The Reporter indicated that he would draft appropriate
language for the Committee's consideration at the Spring 1998 meeting.
I. Rule 32. Sentence and Judgment. Proposal to Provide for Mental
Examination of Defendant.
Continuing an earlier discussion, supra, concerning a Department of Justice
proposal to regarding mental examinations of the defendant, supra at Rule 12.2, Mr.
Pauley proposed that Rule 32 be amended to permit a trial court to order such an
examination for purposes of sentencing. (This discussion actually took place in
conjunction with the discussion regarding Rule 12.2, but is presented here to coincide
with the numbering of the Rules).
Judge Jensen questioned whether the defendant's mental condition or health was a
sentencing factor and Ms. Harkenrider indicated that it would be in a capital case. Judge
Carnes observed that even in capital cases, the defendant's mental condition would
normally have been raised during the cases-in-chief. Mr. Martin gave examples of how
the judge may act in capital cases regarding sealing of the mental examination.
Following additional brief discussion, the Committee voted 10 to 1, with one
abstention, to proceed with drafting an amendment to Rule 32 which would provide for
mental examinations in capital cases, including a notice provision and a provision for
sealing the record.
J. Rule 43. Presence of the Defendant. Proposal to Permit Defendant to
Waive Presence at Arraignment.
The Reporter stated that the Committee had received a recommendation from Mr.
Mario S. Cano (an attorney in Coral Gables, Florida) to amend Rule 43 to permit the
defendant to waive his or her presence at an arraignment. He provided some background
information on similar amendments which had been previously considered by the
Committee in 1992-93 regarding in absentia arraignments from remote locations.
Mr. Rabiej reported that although several pilot programs had been initiated, they
had not yet provided any useful empirical data concerning in absentia arraignments.
Judge Crigler noted that the Committee's earlier proposals had been opposed by defense
counsel because it would have limited their opportunity to meet with their clients at the
arraignment proceedings. Mr. Josefsberg responded that in many cases the arraignment is
not a critical proceeding and that in his experience his client has waived presence at
arraignment. Judge Marovich agreed that in his experience, the arraignments are routine
and that he rarely encounters an arraignment where a major issue is raised. Other
members shared that view and Mr. Martin indicated that he could probably support a
waiver of appearance but not an in absentia arraignment from a remote location.
Judge Dowd indicated that he uses the arraignment to conduct other inquires and
in response several members suggested that any amendment for waiver include a
provision for obtaining the trial court's approval.
Ultimately, the Committee voted 11 to 1 to proceed with consideration of an
amendment to the Rules. The Reporter indicated that he would draft language for
amending both Rules 10 and 43 for the Committee's next meeting.
K. Rules Governing Habeas Corpus Proceedings.
Judge Davis reported to the Committee that the Civil Rules Committee had asked
the Committee to consider the possibility of amending the Rules Governing § 2254 and §
2255 Proceedings. In memos provided by the Reporters of the Civil Rules and Criminal
Committee, he noted two potential problems. First, a technical, conforming, amendment
was probably required in Rule 8 to reflect a change in statutory cross-referencing.
Second, the timing requirements for filing a response to a habeas petition appear to be
inconsistent in Civil Rule 81, § 2243, and Rule 4 of the Rules Governing § 2255
Proceedings and Rule 4 of the Rules Governing § 2254 Proceedings.
Considering the issues involved, and the fact that recent legislation affecting
habeas proceedings may have created additional issues, Judge Davis indicated that he
would appoint a subcommittee to study the problems. He later appointed Judge Carnes
(Chair), Judge Miller, Mr. Jackson, and Mr. Pauley or Ms. Harkenrider.
VII. RECOGNITION OF OUT-GOING MEMBERS
During the meeting, Judge Davis recognized the outstanding contributions of two
out-going members of the Committee: Judge Jensen, who had served the Committee's
chair and Magistrate Judge Crigler. He thanked both for their dedicated service and their
contributions to the Committee and on behalf of the Committee wished them well.
VIII. RULES AND PROJECTS PENDING BEFORE STANDING
COMMITTEE AND JUDICIAL CONFERENCE
A. Status Report on Legislation Affecting Federal Rules of Criminal
Mr. Rabiej informed the Committee that Congress was considering a Civil
Forfeiture Act which would exactly following the language in proposed Rule 32.2, which
is currently out for public comment. He stated that no action would be taken on the
proposed legislation until the second session of Congress.
B. Status Report on Restyling the Appellate Rules of Procedure.
Mr. Rabiej also reported that the restyled Appellate Rules of Procedure had been
approved by the Judicial Conference and had been delivered to the Supreme Court for its
consideration. He added that the Appellate Rules Committee had received 25 comments
on the proposed changes and that all but one of them had been positive in nature.
C. Status Report on Electronic Filing in the Courts
Mr. McCabe informed the Committee that as a result of amendments to several
federal rules of procedure which permit courts to accept electronic filings, that a number
of federal courts had begun identifying and acquiring appropriate technology to accept
such matters. He noted that a number of questions remained to be addressed and
introduced Ms. Karen Molzen, who provided an audio-visual presentation on how the
District of New Mexico is handling such filings.
IX. DESIGNATION OF TIME AND PLACE OF NEXT MEETING
The Committee decided to hold its next meeting on April 27 and 28, 1998 at a
location to be determined.
David A. Schlueter
Professor of Law