Introduction
The drafting and adoption of the Federal Rules of Criminal Procedure (FRCrP) followed closely on the heels of the Federal Rules of Civil Procedure (FRCP). The process of codifying the rules of procedure for both bodies of law represented the culmination of roughly a century of debate over the desirability and appropriate form of such rules. As with the FRCP, the FRCrP bore the impress of debates over the role and power of the federal courts, though many of the rules themselves were uncontroversial. The FRCrP followed largely the same path to promulgation as the civil rules, with the important exception of a set of rules governing the appellate process, which the Supreme Court first adopted prior to the passage of the Rules Enabling Act in 1934.
Federal Criminal Procedure Before the FRCrP
Criminal procedure figured prominently in debates over the ratification and subsequent amendment of the Constitution of the United States. While the original text of that document contained a few limitations on criminal punishment, many of the Constitution’s critics alleged that it did not adequately protect citizens from unfair trials. Answering these concerns, several of the first ten amendments, ratified in 1791, guaranteed basic safeguards like the right to a jury trial, access to legal counsel, and protection against compelled self-incrimination. The Fifth Amendment also contained a broader command that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.”
While this constitutional text formed an outline for many of the broad concepts in criminal procedure, it did not specify the appropriate procedures to be used in individual cases. The provision of the Fourth Amendment requiring that warrants issue only on probable cause, for example, did not indicate what form warrants should take or how they should be issued. Similarly, the Sixth Amendment required that defendants “be informed of the nature and cause of the accusation[s]” against them but did not mandate what form such notification should take.
The earliest federal criminal statutes contained similarly sparse guidance on such procedural matters. The Judiciary Act of 1789 specified some standards for the arrest, complaint, and bail processes and empowered courts to craft “rules for the orderly conducting [of] business,” but generally relied on state or judge-made law to fill in the gaps for other aspects of trial procedure. Similarly, the Crimes Act of 1790 set out a liberal pleading standard for perjury prosecutions but said little about the appropriate procedures for other crimes.
Congress empowered the Supreme Court to promulgate rules for equity and admiralty cases in 1792, but it did not follow suit for criminal matters for nearly another century. In 1791, the Supreme Court adopted “the practice of courts of king’s bench, and of chancery, in England, as affording outlines for the practice of this court” in criminal matters before the Court, using its inherent powers to govern such proceedings. This order did not apply to district and circuit courts, however. Similarly, the Process Act of 1792 required federal courts to follow state rules as of the Constitution’s adoption in most civil cases but did not give any meaningful guidance as to what rules should govern criminal cases.
Nevertheless, most federal trial courts employed the same or similar procedures to those used by their state counterparts. In United States v. Reid (1851), the Supreme Court held that federal courts were constrained to follow state criminal procedures as they existed in 1789; subsequent innovations by the states were irrelevant. Even this guideline had its limitations, however, as courts were sometimes forced to improvise their own rules where such state processes would contradict federal statutes or violate the Constitution (the Supreme Court did not begin applying the criminal procedure protections of the Bill of Rights to the states until the mid-twentieth century).
An 1886 statute provided that the federal courts should follow existing state procedures as closely as they could but allowed federal judges to craft their own rules where state procedures were unconstitutional, conflicted with federal law, or proved otherwise “deficient.” Definitions of “deficient” rules varied from district to district and sometime judge to judge. The result of this approach, according to Supreme Court Justice Nathan Clifford, was that federal criminal procedure had become “a mere jumble of federal law, common law, and state law, consisting of incongruous and irreconcilable regulations.”
Drafting the FRCrP
The difficulties inhering in administering, and practicing in, this mixed system came to the fore in the late nineteenth and early twentieth centuries, as the federal courts handled an increasing number of criminal cases. In particular, the criminal prosecution of thousands of defendants for alcohol-related offenses during prohibition (which began in 1920) brought new urgency to the perceived need to adopt a uniform set of rules for the judiciary’s criminal caseload. William D. Mitchell and Homer Cummings, influential attorneys general who served from 1929 to 1933 and 1933 to 1939, respectively, lobbied for such uniform rules to aid federal prosecutors. This initiative was consonant with the broader New Deal-era drive to simplify and rationalize judicial procedure and administration, which contributed to the passage of the Rules Enabling Act of 1934 and the creation of the Administrative Office of the U.S. Courts in 1939.
In 1933, Congress passed legislation authorizing the Supreme Court to formulate rules governing criminal procedure after a guilty verdict. This demarcation omitted all preconviction phases of the trial process, as well as appeals from cases ending in dismissals or conditional guilty pleas, but it represented a first step towards uniformity in the federal criminal process. For Mitchell, the postconviction phase of proceedings was the one most needing remediation. In a speech to the American Bar Association urging adoption of the legislation, he noted that, in the absence of firm rules, many judges had granted convicted felons lengthy bail terms pending sentencing or appeal. Mitchell claimed these delays complicated prosecutors’ work. It was, he claimed, “an affront to decent citizens for convicted persons to go at large for [up to three years] before their cases are finally disposed of.” Empowering the Supreme Court to promulgate uniform rules for the lower courts, Mitchell argued, would augur “sweeping reforms in the interests of speeding the final disposition of criminal cases.”
In fact, when the Supreme Court adopted the new postverdict rules by order on May 7, 1934, the rules required that sentence be passed “without delay” in most cases but left many decisions about the commitment or bail of convicted defendants to judges’ discretion. Other rules, however, promised to speed the post-conviction process along. For example, Rule III required that convicts take their appeal within five days after the entry of judgment of conviction and abolished many of the formal pleading requirements involved in some jurisdictions’ appellate processes.
These appellate rules were the last system-wide procedural rules adopted by the federal courts outside of the rulemaking process contemplated by the Rules Enabling Act and its progeny. As such, they were not subjected to congressional review and did not supersede previous statutes. In 1938, Attorney General Cummings recommended to Congress that it authorize the Supreme Court to adopt rules governing the rest of the criminal process. Speaking before the Judicial Conference of the Fourth Circuit (the circuit’s policy-making body), Cummings argued that the Supreme Court’s appellate rules had proven successful, but that further reform was needed in an area of the law governed by “a strange admixture of various statutes and rules of common law.” Pointing to the recently finalized FRCP as an instructive precedent, Cummings suggested that a comprehensive body of federal criminal rules would simplify and rationalize the federal criminal system. The existing conventions of pleading and practice before and during trial relied on “the technical intricacies and refinements that prevailed in England in the seventeenth and eighteenth centuries, but which have long been abandoned in the land that gave them birth.” Reform, Cummings urged, would “make the criminal trial less of a game and more of a search for the truth.”
Cummings’s successor, future Supreme Court Justice Frank Murphy, took up Cummings’s challenge, introducing to Congress legislation drafted by the Department of Justice that authorized the Court to promulgate rules for the rest of the criminal process. In his 1939 Annual Report, Murphy drew an unflattering comparison between the states of civil and criminal procedure, characterizing the latter as “highly unsatisfactory” and lamenting that the courts were “impotent” to bring the sort of uniformity, simplicity, and efficiency to criminal law that the civil rules had brought to other areas. The Judicial Conference of the United States officially endorsed the legislation on September 28, 1939.
On June 29, 1940, Congress passed legislation empowering the Supreme Court to “prescribe, from time to time, rules of pleading, practice and procedure with respect to any or all proceedings prior to and including verdict, or finding of guilty or not guilty by the court if a jury has been waived, or plea of guilty, in criminal cases in district courts of the United States.” President Franklin Roosevelt signed the bill into law on July 1, expressing his hope that the new rules would “result in introducing uniformity and simplicity in the administration of criminal justice in the Federal courts and eliminating some of the archaic technicalities which at times hamper or delay the progress of cases through the courts.”
Although the new statute’s language completed the Court’s statutory authority to craft rules governing the criminal trial and appellate processes, its use of the Rules Enabling Act’s procedure meant that the preconviction rules would have a different source of authority—and, arguably, a different scope of action—than the rules the Court had previously drafted for the postconviction process. A 1942 statute authorized the Court to promulgate rules for criminal appeals involving trial-court disposition of many of the then-standard legal pleas in criminal cases. However, the Court did not rely on this authority, apparently because the FRCrP abolished many of these pleas. Instead, the Court continued to rely on its rulemaking power under the 1933 Act to amend and consolidate the appellate rules as part of the FRCrP. A footnote to a 1966 case made it clear that the appellate rules thus did not supersede earlier statutes or apply to cases covered by the rest of the FRCrP. This somewhat anomalous bifurcation of the criminal rules was largely resolved in 1968, when an order of the Supreme Court abrogated most of these rules to avoid conflict with the newly adopted Rules of Appellate Procedure.
The Supreme Court appointed an Advisory Committee to draft the FRCrP on February 3, 1941. Arthur Vanderbilt, a prominent New Jersey lawyer who later served as a judge on the state’s highest court, served as chair of a Committee comprised of legal scholars, former judges, and leading attorneys from the defense and prosecution bars. The Committee produced a preliminary draft of the rules and sought comment from bar associations and lawyers in May 1943. The draft rules’ primary feature was an attempt to simplify existing procedures. Thus, for example, pleas in abatement, demurrers, and pleas in bar were combined into a single form of motion under Rule 13, analogous to the civil rules’ motion to dismiss. The draft rules also filled some significant gaps in the statutory framework for criminal procedure. For instance, Rule 40 for the first time provided a formal mechanism and standard for changing venue in cases where the defendant’s right to a fair trial might be jeopardized.
Most commentators appear to have seen the draft rules as a more approachable and comprehensible codification of prevailing practices. A few of the new rules, however, proved more controversial, particularly with members of the defense bar. Proposed Rule 16, for example, required defendants to notify the government of their intention to present an alibi defense. Members of the Committee pointed out that more than a dozen states had adopted similar rules, which they claimed streamlined pretrial investigations and avoided surprises at trial. However, a number of defense attorneys and bar organizations argued that the rule imperiled defendants’ privilege against compulsory self-incrimination since they had to respond to the government’s specific allegations about the time and location of a crime or risk losing their ability to present a robust defense at trial. Similarly, a provision for procedures analogous to the pretrial conferences contemplated by the civil rules proved more controversial in the criminal context. Some prosecutors believed defendants would use the disclosures associated with the conference as a “fishing expedition,” while many defense attorneys complained that the process would likely lead to defendants feeling compelled to make too many stipulations and revelations before trial. In response to these criticisms, the Committee eliminated or revised some of the more contentious rules.
The Committee sent its second draft of the FRCrP to the Supreme Court in November 1943. The justices, however, appear to have believed this second draft should have been subject to greater public scrutiny and returned the draft to the Committee. In February 1944, the Committee distributed its second draft for further comment and criticism. Following a small number of superficial changes to the rules based on these comments, the Committee again submitted the rules to the Supreme Court in July 1944.
The Court approved the rules on December 26, 1944. Justices Hugo Black and Felix Frankfurter dissented from the Court’s order promulgating the rules. Justice Black did not explain his objections to the order, though in later objections to amendments to the rules, Black argued that the Court should not place its imprimatur on rules it did not write, particularly since the rules might later call for constitutional interpretation. Justice Frankfurter wrote a dissenting memorandum stressing that he expressed no opinion on the merits of the rules, but believed the Supreme Court was not the appropriate body to promulgate such rules. Since the justices no longer rode circuit at the trial-court level, Frankfurter argued, they could not be expected to understand the conditions of criminal trials and have informed views on the best rules to guide future trials. Moreover, Frankfurter suggested that by laying out a set of prospective rules, the Court was effectively prejudging legal issues related to the governance of trial procedure that he would have preferred to reach in an ordinary appellate posture. Finally, Frankfurter suggested that, by assuming an additional duty, the Court risked the efficient “discharge of functions which no one else can exercise.”
Attorney General Francis Biddle submitted the rules to Congress on January 3, 1945. Congress did not act on the proposed rules before the expiration of its first regular session on December 21, 1945. As a result, the FRCrP became law effective on March 21, 1946. In an order entered on February 26, 1946, the Court provided that the postconviction rules it had adopted under the authority of the 1933 statute became effective on the same date as the other rules.
The FRCrP as Adopted
The FRCrP consisted of sixty rules, organized into ten chapters. Chapter I delineated the purpose and scope of the rules. Chapter II dealt with preliminary proceedings, including the procedures for obtaining and issuing warrants and serving summonses. The most important innovations of these provisions included rules permitting a summons in lieu of arrest and allowing warrants to be issued anywhere in the nation. Chapter III laid out the standards for indictment and information, the two processes by which defendants may be charged with crimes in the federal system. Chapter IV dealt with the arraignment and preparations for trial, including the discovery process. Chapter V defined issues around the appropriate venue for criminal trials, with several of the rules focused on transferring venues. Chapter VI dealt with trial procedure, including the process for selecting a jury. Rule 24 gave judges wide latitude in determining the scope and format of questions to prospective jurors. Rule 26 required that, in the absence of federal statutes, judges should apply general common-law rules of evidence as “interpreted by the courts of the United States in the light of reason and experience.” This standard was arguably the most important rule governing the use of evidence in federal criminal trials prior to the adoption of the Federal Rules of Evidence in 1975. It was designed to free trial judges from having to apply state-law evidence standards from the date of the state’s admission to the Union.
Chapter VII dealt with the rules for judgment. As these rules, and those in Chapter VIII dealing with appeals, were authorized by the 1933 statute, they were promulgated by the Court by order as rules 32–39 and were not submitted to Congress with the remaining rules. These rules mostly underwent minor revisions to make them consistent with the ambient rules. One significant change, however, was the extension of the period for filing a motion for a new trial based on new evidence. Whereas the old rules had permitted defendants sixty days in all noncapital cases, the new rules allowed defendants two years to file such motions. The Advisory Committee initially proposed no limit on such motions, but the Court imposed the extended timeframe in one of the few substantive changes the justices made to the rules during the drafting process.
Chapter IX dealt with supplementary and special proceedings, focusing on such issues as hearings involving an arrest in a distant district and, reflecting recent major changes in Fourth Amendment jurisprudence, hearings to suppress the use of evidence. Finally, Chapter X contained several general provisions dealing with such matters as the computation of time and rules governing service.
Reception of the FRCrP
Most practitioners and politicians responded positively to the rules. Attorney General and future Supreme Court Justice Tom Clark submitted a positive report to the September 1947 meeting of the Judicial Conference of the United States, praising the FRCrP for helping to “secure simplicity in procedure and fairness in administration.” Clark’s report, however, also noted some confusion over rules governing waiver of jury trials and transfer from the district for sentencing purposes and suggested potential amendments. Judge Emerich Freed of the Northern District of Ohio also praised the new rules, saluting them for “cutting through the undergrowth of formalism that surrounded the indictment and trial procedures,” and guaranteeing a “more speedy and just disposition of them.” Legal scholar Lester Orfield estimated that the rules had reduced the costs of grand jury proceedings by ten to fifteen percent by streamlining the process and allowing defendants to waive indictment by jury.
Revisions to the FRCrP
Whereas the civil rules advisory committee remained in place after the passage of the FRCP and regularly recommended amendments to the Supreme Court, the FRCrP advisory committee disbanded after its work drafting the rules was complete. The Supreme Court recommended ad hoc changes to the rules on occasion between 1946 and 1960, when the justices appointed a new Advisory Committee to look afresh at the rules and recommend suitable changes. The Committee’s recommendations were relatively sweeping in scope, touching on more than three dozen rules. While many of these changes were designed to clarify the meaning of existing language, some changed policy in meaningful ways. The Advisory Committee recommended a change to Rule 34, for example, intended to reverse the holding of a Supreme Court decision on the appropriate timing of a motion to arrest judgment. These amendments were approved by the Court and adopted in 1966.
Some of the 1966 rule changes were controversial. Justices Black and Douglas dissented from the amendments in part because they believed that some of the rules arguably infringed on defendants’ constitutional rights. Modifications to Rule 16, for example, conditioned defendants’ access to some forms of discovery on their willingness to disclose “scientific or medical reports, books, papers, documents, tangible objects, or copies or portions thereof.” Black and Douglas suggested that this change could raise questions as to whether the rule improperly required defendants to incriminate themselves. The Court, they reasoned, might have to decide such issues in the context of a case and should not have implicitly prejudged the question by approving the amendments and transmitting them to Congress.
In subsequent decades, the Court and Congress adopted several changes to the FRCrP through both the rulemaking process and acts of Congress. In several instances, these changes reflected the evolving scope and nature of protections accorded defendants and victims in federal criminal cases. For example, the Crime Victims’ Rights Act of 2004 led to the creation of a new rule entitled “Victim’s Rights” and amendments to several existing rules that, among other things, limited defendants’ ability to reveal certain information about victims as part of an alibi defense and provided an opportunity for victims to be heard in sentencing proceedings.