New Jury Trial Expansion and Structural Constitutional Reform


Evidence from British practice to the 1789 Judiciary Act then up through nineteenth-century judicial opinions and the contemporary Federal Rules of Criminal Procedure suggests that the “interest of justice” standard to grant a new trial is more defendant-protective than the standard a number of federal circuit courts apply. That evidence suggests new trials were considered warranted whenever a guilty verdict was “contrary to the evidence.” Early jurists and theorists viewed the new trial right as an important safeguard of the underlying, more fundamental, constitutional right to a criminal jury trial—rather than in tension with it as several circuit courts have suggested in recent opinions.

Over the past two years, at least three federal circuit courts have issued opinions deepening the circuit divide on the proper evidentiary standard for district courts to grant Federal Rule of Criminal Procedure 33 new trial rights. The proper standard for affirming new trial grants was recently raised in a petition to the Supreme Court from one of Hunter Biden’s business associates, making the legal question an issue in cases with significant public valence. Although the Court recently denied this petition, another Second Circuit case raising the same circuit split continues to percolate following the Second Circuit’s interlocutory reversal of a new trial grant.

Evidence unpacked by the article includes every reference to the new trial mechanism in documentary histories of the constitutional ratification debates and the First Congress, along with nineteenth and twentieth-century judicial opinions showing the important of the new trial motion in safeguarding the liberty of minorities, as well as the drafting history of the initial federal rules of criminal procedure. This evidence demonstrates the connection between criminal new trial motions and key constitutional democratic norms underlying the federal separation of powers and the role of jury trials in constraining federal executive authority.