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Supreme Court Approves Amendments to Federal Rules: Practitioners Need to Keep Up With the Changes

Kish Law LLC

We handle lots of federal criminal cases. The various rules governing these cases are the same here in Georgia, they are the same when we take cases in Florida or Alabama, and we work under the same rules whenever we take cases in other parts of the country. Every so often, there are proposals to change the rules, and these amendments need to be first approved by the United States Supreme Court before they can be sent to Congress for ratification. Several weeks ago, the Supreme Court approved a series of rule changes that federal court practitioners need to keep up with in order to do the best job possible for their clients. Two of the bigger changes are discussed below.

One of the biggest rule changes concerns criminal cases involving immigration crimes or clients who are not U.S. Citizens Recall that under the landmark case of Padilla v. Kentucky, it is ineffective assistance of counsel if the lawyer does not tell his alien client that a guilty plea can have ramifications on the defendant’s immigration status. Rule 11 of the Federal Rules of Criminal Procedure discusses what happens when anybody pleads guilty to a crime in federal court. The Supreme Court approved a change which requires the judge, before accepting a guilty plea, to ensure that the defendant understands “that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.” The rule change seems to provide protection to both defendants (who will be told about what might happen) and prosecutors (who can argue on appeal or habeas that any failure by defense counsel to provide the advice required by Padilla was harmless because the court gave the defendant the required notice).

Another significant amendment concerns changes to the Federal Rules of Evidence. These are the rules that control what can, and cannot, be introduced by one side or the other during a federal trial. Many readers will be aware of a series of cases over the past decade in which Justice Scalia has breathed new life into the Sixth Amendment’s Confrontation Clause. These cases held that criminal defendants have the right to see, confront and cross-examine any witness whose statement is used for an evidentiary purpose by the prosecution. The Supreme Court has approved changes to Rule 803 of the Rules of Evidence to allow, in a criminal case, admission of a government official’s certification of the absence of a public record if the prosecution gives the defendant notice of its intent to introduce the document fourteen days before trial and the defendant does not object within seven days before the trial. This revision seems to be a reaction to the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, which said that certain kinds of documentary evidence (such as a crime lab report indicating that a substance is cocaine) violates a criminal defendant’s rights under the Confrontation Clause of the Sixth Amendment if admitted into evidence without the document’s author being put on the stand to testify as to its contents. The new version of Rule 803 contains a procedure under which a defendant will waive that constitutional right – at least with respect to a certification testifying to the absence of a public record – if he does not object to its admission after receiving notice prior to trial.

Again, practitioners need to keep up with these changes to protect their client’s rights. We will continue to look for changes and updates so we can do our best for our clients.

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