The U.S. Supreme Court has adopted three amendments to the Federal Rules of Criminal Procedure (“Rules”). They affect Rule 12.4 (Disclosure Statement), Rule 45 (Computing and Extending Time), and Rule 49 (Serving and Filing Papers). The changes do not reflect particularly large shifts in criminal procedure, but attorneys should be aware of them since, as any good litigator knows, a failure to follow proper procedures can severely prejudice a client.
The Court transmitted these amendments to Congress in April. They will take effect on December 1 this year, assuming Congress does not enact legislation that rejects, modifies, or defers the proposed rules. The new Rules will govern in all proceedings commenced after that date, and, “insofar as just and practicable, all proceedings then pending.”
Identifying Organizational Victims
Rule 12.4(2) focuses on the government’s burden to file a statement identifying organizational victims of alleged criminal activity. The Department of Justice initially recommended the amendment, which allows the government to refrain from filing such a statement if it can show good cause why it should not do so. According to the Committee on Rules of Practice and Procedure, the amendment “will avoid the need for burdensome disclosures when numerous organizational victims exist, but the impact on each is relatively small.” The Advisory Committee on Criminal Rules, in a May 2016 report, stated that the amendment provides a flexible standard that will allow a “court to weigh all of the relevant factors and determine on a case-by-case basis whether to relieve the government of the obligation to make disclosures.” The amendment to Rule 12.4 also adjusts the timing of when the government must file disclosure statements for nongovernmental corporate parties and organizational victims, adjusting the deadline from “upon” the defendant’s initial appearance to within twenty-eight days after.
The amendment to Rule 45(c) is a conforming one. Previously, the Rule cross-referenced time counting provisions set forth in the Federal Rules of Civil Procedure. The amendment now references the Rules for Criminal Procedure, not Civil Procedure.
Amendments to Rule 49 state that parties represented by an attorney may serve papers by using an electronic court filing system, and also may serve papers by other electronic means if the receiving party has consented to such service in writing. The amended Rule also sets forth filing procedures for unrepresented parties. Rule 49 also now details nonelectronic methods of service. The Committee Note for the Rule states that the amendments to Rule 49 reflect a shift to a “national rule that mandates electronic filing for parties represented by an attorney with certain exceptions.” According to the Committee, “[t]he time has come to seize the advantages of electronic filing by making it mandatory in all districts for a party represented by an attorney.” The Committee also, though, acknowledges that electronic filing systems are designed for attorneys “and its use can pose many challenges for pro se parties.” The Rules, under the Constitution, have to provide “ready access to the courts by all pro se defendants and incarcerated individuals, filers who often lack reliable access to the internet or email.” The Committee considered, but declined to adopt, a rule that extended default electronic filing to inmates, nonparties, or all pro se filers other than inmates.