Document Type


Publication Date

Fall 2013

First Page






Source Publication Abbreviation

Berkeley J. Crim. L.


Some Federal Rules of Criminal Procedure cover purely technical matters. Some Rules, however, cover procedures with constitutional dimensions. When a federal court is interpreting a Rule that has a companion constitutional doctrine, an issue arises as to whether the Rule’s requirements are co-extensive with the constitutional protections defined by federal case law, or whether the Rule provides federal defendants a higher level of pretrial procedural protection than a post-conviction due process standard. Federal courts have been inconsistent in identifying and resolving this question of constitutional equivalency. In interpreting some pretrial Criminal Rules, federal courts make a clear distinction between the showing required to obtain relief under the Criminal Rules, on one hand, and the showing required to obtain relief under constitutional post-conviction standards, on the other. By interpreting them through other pretrial Criminal Rules, federal courts have interpreted the showing required to obtain relief under them to be co-extensive with constitutional post-conviction due process standards. Where the interpretation of a Rule is driven by a post-conviction constitutional jurisprudence, this article argues that pretrial relief for federal defendants may be unnecessarily and unjustifiably defined and constrained by constitutional due process minimums. On the contrary, at the pretrial stage, an accused is presumed innocent, the trial court is in a unique position to prevent error, and systemic interests in preserving convictions after the government has obtained a conviction are not present. In this context, these factors, this article argues, should dictate a far less demanding standard for obtaining relief pretrial under the Criminal Rules than the showing required of an offender seeking postconviction relief. This article considers two frequently litigated federal pretrial procedures that co-exist with a constitutional doctrine developed in the post-conviction review context – pretrial discovery and change of venue based on local prejudice – to illustrate federal courts’ inconsistent approaches to the question of whether pretrial relief under the Rules should be analyzed independently from constitutional standards developed in the post-conviction review context. Part I provides a background discussion of the history of the Federal Rules of Criminal Procedure. Part II analyzes the text and federal case law governing Rules 16 and 21, the two specific federal provisions examined by this article, and their companion federal constitutional doctrines. Part III explains how federal courts’ application of constitutional post-conviction standards to federal pretrial motions is both analytically unsound and unnecessary. The article argues that there is no jurisprudential or statutory basis for assuming that federal courts should interpret the Rules to codify only a minimum due process standard, and concludes that unless the plain language of a particular Rule indicates that Congress intended federal defendants to be afforded no more than the minimal constitutional protections developed in the post-conviction review context, federal courts are precluded from applying post-conviction standards of review to resolve pretrial requests for procedural relief under the Rules.