Concept
Time Limits for Filing
Motion for a new trial
Time Limits for Filing
A new-trial motion can have real merit and still fail because it was filed on the wrong clock, so timeliness is a question separate from whether the new evidence or the trial error justifies relief. Rule 33(b) does not set one deadline for every motion. It sets two, and the one that applies depends on the ground the motion asserts.1 A motion grounded on newly discovered evidence must be filed within three years after the verdict or finding of guilty, while a motion grounded on any other reason must be filed within 14 days after the verdict or finding of guilty.2 The analysis therefore begins by sorting the motion by its ground and only then reads off the period, because choosing the clock before identifying the ground is the most common timing error.
The same filing date can be timely or late depending on that sort. A defendant who files two years after the verdict on the strength of an affidavit from a witness discovered after trial is inside the three-year period.3 A defendant who files at the same point, two years after the verdict, arguing that the judge gave a faulty jury instruction is far outside the 14-day period, because the ground is not new evidence.4 The delay is identical in the two filings. Only the ground differs, and the ground selects the clock.
The two periods answer two different problems. New evidence, by definition, was not available at trial, so it cannot be found on a trial schedule, and the movant needs a window long enough to discover it, test it, and prepare a motion. A claim of trial error is the opposite case: the instruction was read to the jury or the ruling was made in open court, so the claim is visible on the record at once and is best raised while the proceedings are fresh and before the case moves on. Even the longer window has an end, because at some point the interest in finality has to outweigh the chance that different evidence would change the result.
The history of the federal rule shows courts weighing exactly that tension. At common law a new trial could be granted only during the term of court in which final judgment was entered, and after the term the court could correct only matters of form and clerical errors.5 In 1934 the Supreme Court adopted a rule setting a 60-day limit, counted from final judgment, for new-trial motions based on newly discovered evidence, and in 1938 it allowed such motions in capital cases at any time before execution.6 A debate followed over whether to abolish the limit to prevent a miscarriage of justice or keep a limit even in capital cases to promote finality, and in 1946 the Court chose a two-year limit and abolished the capital exception.7 Two features of that history line up with the modern structure. The federal rule singled out new-evidence motions for a special limit from the start, and the state practice the Court surveyed generally required new-trial motions to be made within a few days after the verdict or before judgment was entered.8
Three Years for New Evidence
The first sentence of Rule 33(b)(1) governs every motion grounded on newly discovered evidence: it must be filed within three years after the verdict or finding of guilty.10 The period has three parts worth keeping apart. The ground must be new evidence of the kind the five-part test in the preceding sections addresses, the starting point is the verdict or finding of guilty, and the length is three years. Because the text names the verdict or finding of guilty as the starting event, the count begins there and not at a later event such as sentencing. The window is long because the evidence it serves could not be found on a trial schedule, and the steps of discovering it, testing it, and preparing a motion take time that a 14-day period would not allow.
The Supreme Court's decision in Herrera v. Collins shows how much weight the law places on the end of the window. A Texas prisoner offered new evidence of innocence eight years after his conviction, and Texas refused to entertain it. The Court said it could not find that refusal contrary to fundamental fairness, relying on the historical availability of new trials, its own amendments to Rule 33, and contemporary state practice, and it pointed to executive clemency as the historic remedy for miscarriages of justice once judicial process is exhausted.11 State practice in that survey varied widely: Texas was among 17 States requiring a new-evidence motion within 60 days of judgment, and only 15 States allowed one more than three years after conviction.12
One detail in Herrera needs care. The Court described the federal limit as two years and quoted an older version of Rule 33 that counted from final judgment.13 The current text of Rule 33(b)(1) gives three years from the verdict or finding of guilty, and the current text is what a student applies on an exam.14 The historical discussion is useful for the reason behind the limit, which is a deliberate choice of some deadline over none, and it should not be used to supply the number.
Fourteen Days for Other Grounds
Every new-trial motion that rests on a reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.16 The category is defined by exclusion, so it sweeps in whatever the movant relies on that is not evidence discovered after trial, such as a faulty jury instruction. The short period follows from where such claims live. A trial error, whether an instruction read to the jury or a ruling made in open court, is visible on the record the moment it happens, so nothing about it requires the long search that new evidence does. Raising it within days keeps the events fresh for the judge who presided and lets the case move on to sentencing and appeal without an open challenge to the verdict.
Students most often go wrong because a late motion on one of these grounds can still look timely by the longer clock. A defendant who files two years after the verdict arguing a faulty jury instruction is still within three years of the verdict, yet the three-year period is unavailable because the ground is not new evidence, and the motion is untimely under the 14-day clock.17 The mistake is borrowing the three-year period for a ground that the text assigns to the 14-day clock.
A single filing sometimes raises both kinds of ground. The text assigns each clock to a motion according to the ground on which it is grounded, which points toward measuring each ground against its own clock, so a new-evidence ground can survive a filing that is too late for an instruction claim.18
Pending Appeals
The second sentence of Rule 33(b)(1) adds a restriction to the three-year rule: if an appeal is pending, the court may not grant a new-trial motion until the appellate court remands the case.20 The sentence sits in the provision on new-evidence motions, and its words restrict the granting of relief rather than the filing of the motion. The structure of an appeal explains the limit. Once an appeal is taken, the appellate court is reviewing the judgment, and a trial court that ordered a new trial in the meantime would set aside the very judgment under review, leaving the appellate court examining a verdict that no longer stands. Requiring a remand puts the appellate court in control of when the case returns to the trial judge, so only one court decides the fate of the conviction at a time.
The restriction is a sequencing rule and does not change the three-year period. The motion can be before the trial court while the appeal runs, and the second sentence says only that no grant can occur until the remand. The text contains no provision pausing the three-year period during an appeal, so a defendant with a slow appeal and a new-evidence claim has reason to file within the period instead of waiting for the appeal to end.
Extensions of Time
Whether a court can enlarge Rule 33's periods depends on how the periods have been read, and the reading has been strict. Under the early common-law rule, a federal court could grant a new trial only during the term of court in which final judgment was entered, and after the term it kept power only to correct matters of form and clerical errors.22 The federal rules replaced the term with fixed periods, first 60 days and later two years for new-evidence motions, and the Court has said that it strictly construes the Rule 33 time limits.23 A strictly construed period is read as written. A court applying it does not lengthen the period because the delay is understandable or the new evidence seems strong, since the purpose of a fixed period is that the date decides timeliness.
The strictness serves the finality side of the tension described at the start of this section. When the Court set a time limit for new-evidence motions, it weighed preventing a miscarriage of justice against promoting finality and chose a limit over none.24 A court that routinely extended the period would reopen that choice case by case, and the end of the window would mean little. The text points the same way, because Rule 33(b) states the two periods and the pending-appeal restriction and contains no mechanism for enlarging either period.25
The practical analysis is therefore to compare the filing date with the period for the asserted ground and to treat a late motion as untimely. An argument that some other source of authority allows more time has to overcome the strict-construction tradition described here. When the judicial path is closed, Herrera identifies executive clemency as the historic remedy for preventing miscarriages of justice once judicial process is exhausted.26
Three Years for New Evidence
The first sentence of Rule 33(b)(1) sets the outer limit for the most common special ground for a new trial: a motion grounded on newly discovered evidence must be filed within three years after the verdict or finding of guilty.28 Three pieces of that sentence do the work. The ground must be evidence discovered after trial, the clock starts at the verdict or finding of guilty, and the period lasts three years. Because the text names the verdict or finding of guilty as the starting event, the count begins there and does not wait for a later event such as sentencing. A district court restating the Rule has described it the same way, giving three years for a request based on new evidence and fourteen days for a request made for any other reason.29
The period is long because of what new evidence is. Evidence that surfaced only after trial could not have been located on a trial schedule, and the defense needs time to find it, test whether it holds up, and assemble a motion, which is work the 14-day period for other grounds would not allow. The period still ends, because a retrial held many years after the events has to be built from fading memories and lost physical evidence, and a verdict that can be reopened at any time never settles. The three-year rule is the line drawn between those two pressures. Meeting it only gets the motion heard; whether a new trial follows depends on the five-part showing covered in the preceding sections.
The Supreme Court's treatment of a far later filing shows how firmly the law accepts a cutoff. In Herrera v. Collins a Texas prisoner offered new evidence of innocence eight years after his conviction, and Texas, which required new-evidence motions within 60 days of judgment, would not entertain it.30 The Court concluded that the refusal did not offend fundamental fairness, relying on the historical availability of new trials, its own amendments to Rule 33, and the practice of the States.31 Because Herrera arose from Texas's own rule and a due process claim, it supplies history and constitutional context for Rule 33(b)(1) and does not interpret the three-year text itself.
The history the Court recounted explains why a fixed limit exists at all. Federal practice moved from a common-law rule allowing a new trial only during the term of court, to a 60-day limit for new-evidence motions in 1934, to an exception allowing such motions in capital cases at any time before execution in 1938. A debate then followed between preventing a miscarriage of justice and promoting finality, and in 1946 the Court set a two-year limit and abolished the capital exception.32 The choice of some limit over none has held, and the Court has strictly construed the Rule 33 time limits.33 Herrera also identified what remains once the courts are closed to a late claim. Executive clemency is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.34 Even assuming that a truly persuasive showing of actual innocence could support relief on its own, the Court said the threshold for such a claim would be necessarily high, and the prisoner's showing fell far short of it.35
The numbers in older decisions call for care, because those decisions quote earlier wording of the Rule. Herrera described the federal limit as two years from final judgment, and the Second Circuit in United States v. Reyes applied that wording to hold that, after an appeal, the two years ran from the appellate mandate rather than from the court of appeals' judgment, so the defendant's motion was timely.36 The current text counts three years from the verdict or finding of guilty, and that text is what controls an answer.37 The older cases remain useful for the reasons behind a deadline and should not be used to supply the number or the starting date.
A separate body of law shows the same tension from the opposite side. In McQuiggin v. Perkins, a habeas case governed by a federal statute of limitations, the Court held that a convincing showing of actual innocence can open a gateway past an expired limitations period, and it treated unexplained delay as one factor bearing on whether the innocence evidence is reliable.38 That rule belongs to habeas and does not govern Rule 33. The text of Rule 33(b)(1) states a deadline and contains no balancing inquiry for strong showings of innocence.39
On an exam, a stem that reports a motion filed within three years invites a quick yes, but the analysis has two prior checks. The first is whether the ground is new evidence at all, since any other ground runs on the 14-day clock. The second is the starting date, and the usual error is counting from sentencing instead of the verdict. A motion filed three years and two months after the verdict is late even if it comes within three years of sentencing.
Fourteen Days for Other Grounds
The three-year period described in the preceding section belongs to a single ground, so every other ground for a new trial runs on a much shorter clock. Rule 33(b)(2) requires that any motion grounded on a reason other than newly discovered evidence be filed within 14 days after the verdict or finding of guilty.41 The category is defined by subtraction. A court does not consult a list of qualifying grounds; it asks whether the motion rests on evidence discovered after trial, and if it does not, the 14 days apply. The starting event is the verdict, or the finding of guilty when the judge tried the case, so the count begins when the factfinder announces its decision and does not wait for sentencing.
The grounds that land in this category are the ones a trial generates on its own record. In United States v. Chinasa the defendant, convicted on conspiracy, mail fraud, wire fraud, and obstruction counts, moved for judgment of acquittal or a new trial on three arguments: the court had failed to give specific jury instructions, the evidence was insufficient, and certain exhibits were prejudicially admitted.42 The court sorted those arguments by type, treating the instruction and exhibit complaints as Rule 33 grounds and the sufficiency complaint as a Rule 29(c) ground, and it recited that a Rule 33 request resting on anything other than new evidence must be filed within fourteen days of the verdict.43 A motion like Chinasa's, raising instruction and exhibit complaints, is therefore timely when filed within 14 days after the verdict. Both complaints were visible the moment they arose, since the instruction conference happens before the jury deliberates and an exhibit ruling is made in open court. The same 14 days apply to a post-verdict motion for judgment of acquittal, which is why defendants commonly file the two motions together, asking for acquittal or, in the alternative, a new trial.44
The short period has two reasons that work together. The functional reason is that the judge who presided is best placed to repair a trial error while the events are fresh, and a prompt motion lets the correction come before sentencing and appeal instead of after both have moved on. The incentive reason does subtler work. A defendant who knows of an instruction error or a disputed exhibit at trial could otherwise keep that claim in reserve, wait to see how sentencing turns out, and file only if the result disappoints. A fixed period running from the verdict removes that option, because the ground has to be raised before the sentence is known.
The deadline also affects appeal timing. A timely Rule 33 motion suspends the finality of the judgment, so that the time for noticing an appeal runs from the ruling on the motion, but a post-trial motion must itself be timely to have that effect, and a defendant's notice of appeal in a criminal case is due within 14 days.45 A late motion therefore cannot be assumed to preserve appellate rights. The civil rules show the same concern for finality with a different number: a civil motion for a new trial under Rule 59 must be filed within twenty-eight days of entry of judgment, and making a Rule 50(b) motion does not suspend the time for the Rule 59 motion.46 That civil figure belongs to civil cases and should not be carried into a criminal problem.
Older opinions use a different number, and the difference matters when reading them. The period for these grounds was formerly seven days, and decisions applying that text say so. United States v. McKenna quotes the earlier wording, under which a motion on other grounds had to be made within seven days after the verdict.47 In United States v. Flood the government applied the seven-day version because it was in effect when the post-trial motions were filed, and the court's footnote notes that the current text provides 14 days.48 United States v. Gibson, which describes a motion filed six days after the verdict and refers to a seven-day window, reflects the same older timing.49 On a current question, the amended text controls, and the answer is 14 days.
The seven-day figure is out of date, but the lesson of McKenna carries over to the current period. The jury there returned its verdict on a Saturday in February 1992, and over the following weeks the court granted the defendant two extensions of time to file a new-trial motion, the second request arriving on the last day of the first extension.50 The court later described that second extension as granted without authority, explaining that the plain language of Rule 33 curtails a district court's power to enlarge the time once the period after the verdict has run, and that Rule 45 excepts Rule 33 from its general provision on enlarging time.51 The motion filed at the end of the extended period was therefore late. A court's willingness to keep granting more time did not move the deadline, which is the contrast with Chinasa: a trial-error motion filed within the period is heard, and one filed after it is not rescued by extensions. The section on extensions of time below returns to how strictly these limits are enforced.
Students most often lose points here by borrowing a longer clock for a ground that belongs on the short one. A movant who knew of an instruction error or an exhibit ruling at trial has no evidence discovered after trial, and relabeling a known trial error as newly discovered evidence gives no basis for the three-year period. That is a drafting caution drawn from how the text divides the two clocks, because Rule 33(b)(2) assigns the 14 days to every reason other than new evidence.52 The second common slip is the starting date. The text counts from the verdict or finding of guilty, so a motion that is timely measured from sentencing can still be late.
Pending Appeals
The first sentence of Rule 33(b)(1) says how long the new-evidence ground stays open, and the second sentence addresses a complication that can arise inside that period: the defendant has already appealed. It provides that if an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.54 The wording is directed at granting. It limits what the district court may do while the appeal is pending and says nothing that forbids a defendant from filing the motion in the meantime. It also says nothing about extending the three-year period stated in the sentence before it, so a defendant who waits on the appeal is still measuring from the verdict or finding of guilty.
The reason for the limit follows from what each court is doing while an appeal is pending. The court of appeals is reviewing one particular judgment, and a district court that granted a new trial during that review would set aside the very verdict the appellate judges are examining. Two courts would then hold control over a single judgment at the same time, and the appellate court could end up ruling on a judgment that no longer exists. The remand requirement settles the order of authority: the appellate court decides when the case returns to the district court, and the district court acts only after it does. The district court is still the right place for the motion once the case comes back, because the judge who presided at trial is best positioned to judge how evidence that surfaced later fits the trial record.
The Second Circuit's decision in United States v. Salameh shows that sequence in practice. The defendants there had been convicted, sentenced, and had noticed their appeals when, a week before their briefs were due, two of them asked the court of appeals to remand the proceedings to the district court, and one stated ground was the alleged discovery of new evidence.55 The reasoning behind the request is the interaction this section describes. If the district court ruled favorably on the newly raised post-trial claims, the appeals might be rendered moot, and counsel for one defendant argued that a fact-dependent motion belonged first before the district court, which already knew the complex case.56 With the consent of all four appellants, the court of appeals granted the remand, dismissed the appeals, and provided that they would be reinstated automatically, without new notices of appeal, once the district court decided the post-trial motions.57 The district court took up the post-trial motions only after that order.
The passage describes practice and does not quote the second sentence of Rule 33(b)(1), and dismissal with automatic reinstatement was the device that one court of appeals chose for managing its remand. The rule's own text requires a remand and nothing more specific. What carries over to other cases is the order of events, with the appellate court acting first and the district court second, and the particular mechanics should not be treated as a requirement of Rule 33.
On an exam, a stem that mentions a pending appeal invites two opposite mistakes. The first is to conclude that the district court may grant the motion because the three-year period has not run, when the pending appeal controls the question of granting until remand. The second is to treat the appeal as a reason the motion cannot be filed, yet the sentence limits granting, not filing.58 A correct answer separates the two questions: the filing period governs whether the motion is timely, and the remand requirement governs when relief may issue. A remand lifts only the pending-appeal limit. The court must still be persuaded by the five-part showing on newly discovered evidence, and the motion must still have been filed within the three years.
Extensions of Time
The two clocks described in the preceding sections, three years for new evidence and 14 days for every other ground, leave a practical question open: can a court lengthen either one? The answer depends on which version of the rules governs, and keeping the eras apart removes what looks like a conflict between two lines of decisions. Before December 1, 2005, the federal rules did not permit extensions of this kind.60 The older text of Rule 33 allowed a motion on other grounds within seven days after the verdict, or within such further time as the court fixed during that seven-day period. Rule 45 added that a court may not extend the time for acting under Rules 29, 33, 34, and 35 except to the extent and under the conditions those rules state.61
United States v. McKenna shows the older rule at work. The jury returned its verdict in February 1992, the court granted one extension and then a second, and the defendant filed the new-trial motion on the last day of the second.62 The court later described that second extension as granted without authority. Its reasoning was that the plain language of Rule 33 curtails a district court's power to enlarge the time once the period after the verdict has run, and that Rule 45 excepts Rule 33 from its general provision on enlarging time.63 The extension therefore gave the late filing no protection, whatever the court's earlier willingness to grant it.
The strictness of that approach was not peculiar to one district judge. In Herrera v. Collins the Supreme Court observed that it has strictly construed the Rule 33 time limits, and it described the history of the new-evidence deadline as a debate between abolishing the limit to prevent a miscarriage of justice and keeping it to promote finality.64 The Court chose a fixed limit in 1946, and the number has since grown to three years. The same opinion held that Texas's refusal to hear newly discovered evidence eight years after conviction did not offend fundamental fairness, and it pointed to executive clemency as the remaining forum.65 The reason for a rigid deadline is easiest to see in the civil setting, where Rule 59 follows the same logic: parties must know at some point that a judgment will not be revised, so a late motion generally cannot be rescued by the judge.66 That civil explanation shows why a number that no one can enlarge serves finality, because it removes any reason to wait and see.
The 2005 amendments changed that picture. In United States v. Polizzi, decided in 2008, the court recognized that changes to Rules 29, 33, and 45 effective December 1, 2005 gave courts greater latitude to extend the time for post-verdict motions.67 The court also treated the time limit as non-jurisdictional, describing it, in reliance on a Supreme Court decision, as a claim-processing rule.68 The defendant there moved for a new trial about five months after the trial ended but before sentencing, and the court concluded that the motion was arguably timely under Rule 45(b) because the interests of justice required a new trial.69 The opinion speaks of a seven-day limit because that was the text then in force, and the period for non-evidence grounds is now 14 days.70
The two decisions do not conflict, because they apply different rules. Length of delay did not decide either result: the filing about a month after the verdict in McKenna failed under rules that forbade enlargement, while the five-month delay in Polizzi was arguably timely under rules that allow it. The classification of the limit explains why extension is conceptually available. A jurisdictional limit would define the court's power and leave it with no authority to act once the period passed, whatever the parties wanted. A claim-processing rule instead regulates how the parties move the case forward, so the court keeps authority over a late motion and the rules themselves decide when an extension may issue. The limit also remains a deadline the opposing party can insist on, so it keeps its force without being an absolute bar.
The language of Polizzi is careful, and a reader should match it. The court called the motion arguably timely and did not hold that a movant who misses a clock is entitled to more time. The opinion also does not set out what Rule 45(b) requires before a court may extend, so no standard should be attributed to it beyond the court's tie between timeliness and its view that the interests of justice required a new trial. On an exam, the safest analysis first asks which version of the rules the stem invokes, because treating a pre-2005 decision as current law produces the wrong answer on any current question about extensions. For a current problem, the court is not stripped of power by lateness alone, and whether it extends depends on the conditions of Rule 45(b) that the stem supplies.