CAAF’s web site links to a notice of proposed rule change in today’s Federal Register.  The rule change would provide welcome guidance concerning how to attempt to provide CAAF with new facts when necessary and the standard CAAF will use to assess such attempts.  Rule 30A(a), as amended, would read:

(a) General. The Court will normally not consider any facts outside of the record established at the trial and the Court of Criminal Appeals. Requests to consider factual material that is not contained in the record shall be presented by a motion to supplement the record filed pursuant to Rule 30. The motion shall include statements explaining why the matter was not raised previously at trial or before the Court of Criminal Appeals and why it is appropriate to be considered for the first time in this Court. Motions filed pursuant to this Rule will be granted only for good cause shown.

Comment: The proposed change establishes a procedure for properly presenting a request to the Court to consider evidence that is not in the record. The rule requires a party to explain in a motion why the Court may consider the evidence although it was not considered previously and is not part of the record. The rule also contains a standard for granting motions under the rule.

7 Responses to “Proposed CAAF Rule change”

  1. Anonymous says:

    This could raise the bar, no? Facts that a competent DC or appellate counsel should have presented. But it’s true purpose is probably a way for govt counsel to reprosecute reversals and rulings they don’t like, ala MRE 413 leverage.

  2. Gene Fidell says:

    The last time the Court of Appeals proposed a rule change only NIMJ commented. I hope Anon 2240 and others will comment on this latest proposal. E.g., what is the rule on supplementation of the record in the geographical courts of appeals or state supreme courts in criminal cases? What if a service court allows supplementation where the Court of Appeals would not under the proposed [amorphous] standard? Is that evidence in or out, and under what standard of review? Suggestion for the Rules Advisory Committee: why not issue a notice of what changes are under consideration? Perhaps the explanatory comment could also be made more informative as to precisely–i.e., citing cases in which a problem has been discerned–why a change is being proposed. This one is very conclusory.

  3. RY says:

    The problem I have with this proposed rule actually stems from the Joint CCA rules restricting attachments at the CCA level. Under Rule 23(b), attachments must be affidavits, sworn or under penalty of perjury. This has been a source of frustration where relevant facts for the appellate issue are not exactly testimonial.

    For example, the actual sentences received in co-actor cases for purposes of sentence comparisons may be most easily handled by attachment of the promulgating order from those companion cases. Such an attachment, however, does not comply with Rule 23 and at least the AFCCA is not always permitting them. But consider also documents that would help demonstate post-trial prejudice from extensive appellate delays or what about IAC, where trial defense counsel allegedly failed to take some action (e.g., request a sanity board, introduce certain evidence). It seems to me there are a fair number of cases that would benefit from additional relevant facts that may not be testimonial, are consistent CCA’s required review under Art 66, but do not fall within Rule 23’s parameters. CAAF’s position/ propose ruled may close the door on bringing relevant non-testimonial evidence into appellate review, even where it makes sense.

  4. Gene Fidell says:

    RY, these are worthwhile comments. I hope you will submit something formal in response to the Court’s notice of proposed rule making.

  5. Anon says:

    There should be an exemption for arguments on sentencing disparity. The actual sentence is an unknown, announced at the end, and practically outside the purview of trial litigation.

  6. Dwight Sullivan says:

    The CCA rules provide for filing documents other than affidavits and declarations. In fact, the example in Joint Rule 23(a) deals specifically with a motion to file a report of a medical board. Joint Rule 23(b) doesn’t preclude the attachment of any documents other than affidavits and declaration. Rather, it provides that when dealing with one kind of document — a statement — only an affidavit or declaration is acceptable. It provides no limitation on the attachment of other kinds of documents. Also, look at ACCA R. 23.3, which deals with motions to attach documents.

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