(2) Place. A resident of the district in which the deposition is to be taken may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person. A non-resident of the district may be required to attend only in the county where he is served with a subpoena or within 40 miles from the place of service or at such other place as is fixed by the court. (g) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued or of the court for the district in which it issued if it was issued by a commissioner. (As amended Dec. 27, 1948, eff. Oct. 20, 1949.) NOTES OF ADVISORY COMMITTEE ON RULES This rule is substantially the same as Rule 45 (a) of the Federal Rules of Civil Procedure. Note to Subdivision (b) This rule preserves the existing right of an indigent defendant to secure attendance of witnesses at the expense of the Government, 28 U. S. C. former § 656 (Witnesses for indigent defendants). Under existing law, however, the right is limited to witnesses who are within the district in which the court is held or within one hundred miles of the place of trial. No procedure now exists whereby an indigent defendant can procure at Government expense the attendance of witnesses found in another district and more than 100 miles of the place of trial. This limitation is abrogated by the rule so that an indigent defendant will be able to secure the attendance of witnesses at the expense of the Government no matter where they are located. The showing required by the rule to justify such relief is the same as that now exacted by 28 U. S. C. former § 656. Note to Subdivision (c) This rule is substantially the same as Rule 45 (b) of the Federal Rules of Civil Procedure, 28 U. S. C. following § 2072. Note to Subdivision (d) This rule is substantially the same as Rule 45 (c) of the Federal Rules of Civil Procedure, 28 U. S. C. following § 2072. The provision permitting persons other than the marshal to serve the subpoena, and requiring the payment of witness fees in Government cases is new matter. Note to Subdivision (e) (1) This rule continues existing law, 28 U. S. C. § 654 (Witnesses; subpoenas; may run into another district). The rule is different in civil cases in that in such cases, unless a statute otherwise provides, a subpoena may be served only within the district or within 100 miles of the place of trial, 28 U. S. C. former § 654; Rule 45 (e) (1) of the Federal Rules of Civil Procedure, 28 U. S. C. following § 2072. (2) This rule is substantially the same as Rule 45 (e) (2) of the Federal Rules of Civil Procedure, 28 U. S. C. following § 2072. See Blackmer v. United States, 284 U. S. 421, upholding the validity of the statute referred to in the rule. Note to Subdivision (f) This rule is substantially the same as Rule 45 (d) of the Federal Rules of Civil Procedure, 28 U. S. C. following § 2072. Note to Subdivision (g) This rule is substantially the same as Rule 45 (f) of the Federal Rules of Civil Procedure, 28 U. S. C. following § 2072. SUPERSEDURE Provision of subd. (d) of this rule that witness shall be tendered the fee for 1 day's attendance and mileage al lowed by law as superseded by section 1825 of Title 28, Judiciary and Judicial Procedure, see such section and Reviser's Note thereunder. CROSS REFERENCES Deposition of witnesses, see rule 15. Forms of subpoenas to testify and to produce document or object, see forms 20 and 21. Marshal's fee for service of subpoena, see section 1921 of Title 28, Judiciary and Judicial Procedure. Per diem and mileage of witnesses generally, see section 1821 of Title 28, Judiciary and Judicial Procedure. FEDERAL RULES OF CIVIL PROCEDURE Subpoena, see rule 45, following section 2072 of Title 28, Judiciary and Judicial Procedure. V. VENUE RULE 18. DISTRICT AND DIVISION Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed, but if the district consists of two or more divisions the trial shall be had in a division in which the offense was committed. NOTES OF ADVISORY COMMITTEE ON RULES 1. The Constitution of the United States, Article III, Section 2, Paragraph 3, provides: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Amendment VI provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law 28 U. S. C. former § 114 (now §§ 1393, 1441) provides: All prosecutions for crimes or offenses shall be had within the division of such districts where the same were committed, unless the court, or the judge thereof, upon the application of the defendant, shall order the cause to be transferred for prosecution to another division of the district. The word "prosecutions," as used in this statute, does not include the finding and return of an indictment. The prevailing practice of impaneling a grand jury for the entire district at a session in some division and of distributing the indictments among the divisions in which the offenses were committed is deemed proper and legal, Salinger v. Loisel, 265 U. S. 224, 237, 44 S. Ct. 519, 68 L. Ed. 989. The court stated that this practice is "attended with real advantages." The rule is a restatement of existing law and is intended to sanction the continuance of this practice. For this reason, the rule requires that only the trial be held in the division in which the offense was committed and permits other proceedings to be had elsewhere in the same district. 2. Within the framework of the foregoing constitutional provisions and the provisions of the general statute, 28 U. S. C. former § 114 (now §§ 1393, 1441), supra, numerous statutes have been enacted to regulate the venue of criminal proceedings, particularly in respect to continuing offenses and offenses consisting of several transactions occurring in different districts. Armour Packing Co. v. United States, 209 U. S. 56, 73–77, 28 S. Ct. 428, 52 L. Ed. 681; United States v. Johnson, 323 U. S. 273, 65 S. Ct. 249, 89 L. Ed. 236. These special venue provisions are not affected by the rule. Among these statutes are the following: U. S. C. Title 15: § 78aa (Regulation of Securities Exchanges; jurisdiction of offenses and suits) § 79y (Control of Public Utility Holding Companies; jurisdiction of offenses and suits) § 80a-43 (Investment Companies; jurisdiction of offenses and suits) § 80b-14 (Investment Advisers; jurisdiction of offenses and suits) § 298 (Falsely Stamped Gold or Silver, etc., violations of law; penalty; jurisdiction of prosecutions) § 7151 (Interstate Transportation of Petroleum Products; restraining violations; civil and criminal proceedings; jurisdiction of District Courts; review) § 717u (Natural Gas Act; jurisdiction of offenses; enforcement of liabilities and duties) U. S. C. Title 18 former: § 39 (Enforcement of neutrality; United States defined; jurisdiction of offenses; prior offenses; partial invalidity of provisions) § 336 (Lottery, or gift enterprise circulars not mailable; place of trial) § 338a (Mailing threatening communications) § 338b (Same; mailing in foreign country for delivery in the United States) § 345 (Using or attempting to use mails for transmission of matter declared nonmailable by title; jurisdiction of offense) § 396e (Transportation or importation of convict-made goods with intent to use in violation of local law; jurisdiction of violations) § 401 (White slave traffic; jurisdiction of prosecutions) § 408 (Motor vehicles; transportation, etc., of stolen vehicles) § 408d (Threatening commerce) communications in interstate U. S. C. Title 49: § 623 (Civil Aeronautics Act; venue and prosecution of offenses) CROSS REFERENCES Constitutional restrictions on venue of criminal prosecutions, see Const. Act III, sec. 2, par. 3 and Amend. VI. Divisions within judicial district, see sections 81 et seq. of Title 28, Judiciary and Judicial Procedure. Judicial districts within State, see sections 81 et seq. of Title 28, Judiciary and Judicial Procedure. Transfer from district For plea and sentence, see rule 20. Or division for trial, see rule 21. Transfer to other division within district upon consent of defendant, see rule 19. Venue Capital cases, see section 3298 of this title. Creation of new district or division, see section 3240 of this title. Murder or manslaughter, see section 3236 of this title. Offenses begun in one district and completed in another, see section 3237 of this title. Offenses not committed in any district, see section 3238 of this title. Threatening communications, see section 3239 of this title. RULE 19. TRANSFER WITHIN THE DISTRICT In a district consisting of two or more divisions the arraignment may be had, a plea entered, the trial conducted or sentence imposed, if the defendant consents, in any division and at any time. NOTES OF ADVISORY COMMITTEE ON RULES This rule is in effect a restatement of existing law, which permits transfers from one division to another on the application of the defendant, 28 U. S. C. former § 114 (now §§ 1393, 1441). It is designed to assist in the expeditious disposition of criminal cases and to accord the defendant an opportunity for a speedier trial or more expeditious disposition than would frequently be possible if it were mandatory that every step in the proceeding be conducted in the division in which the prosecution is pending. RULE 20. TRANSFER FROM THE DISTRICT FOR PLEA AND SENTENCE A defendant arrested in a district other than that in which the indictment or information is pending against him may state in writing, after receiving a copy of the indictment or information, that he wishes to plead guilty or nolo contendere, to waive trial in the district in which the indictment or information is pending and to consent to disposition of the case in the district in which he was arrested, subject to the approval of the United States attorney for each district. Upon receipt of the defendant's statement and of the written approval of the United States attorneys, the clerk of the court in which the indictment or information is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court for the district in which the defendant is held and the prosecution shall continue in that district. If after the proceeding has been transferred the defendant pleads not guilty, the clerk shall return the papers to the court in which the prosecution was commenced and the proceeding shall be restored to the docket of that court. The defendant's statement shall not be used against him unless he was represented by counsel when it was made. NOTES OF ADVISORY COMMITTEE ON RULES This rule introduces a new procedure in the interest of defendants who intend to plead guilty and are arrested in a district other than that in which the prosecution has been instituted. This rule would accord to a defendant in such a situation an opportunity to secure a disposition of the case in the district where the arrest takes place, thereby relieving him of whatever hardship may be involved in a removal to the place where the prosecution is pending. In order to prevent possible interference with the administration of justice, however, the consent of the United States attorneys involved is required. RULE 21. TRANSFER FROM THE DISTRICT OR DIVISION FOR TRIAL (a) For Prejudice in the District or Division. The court upon motion of the defendant shall transfer the proceeding as to him to another district or division if the court is satisfied that there exists in the district or division where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that district or division. (b) Offense Committed in Two or More Districts or Divisions. The court upon motion of the defendant shall transfer the proceeding as to him to another district or division, if it appears from the indictment or information or from a bill of particulars that the offense was committed in more than one district or division and if the court is satisfied that in the interest of justice the proceeding should be transferred to another district or division in which the commission of the offense is charged. (c) Proceedings on Transfer. When a transfer is ordered the clerk shall transmit to the clerk of the court to which the proceeding is transferred all papers in the proceeding or duplicates thereof and any bail taken, and the prosecution shall continue in that district or division. NOTES OF ADVISORY COMMITTEE ON RULES 1. This rule introduces an addition to existing law. "Lawyers not thoroughly familiar with Federal practice are somewhat astounded to learn that they may not move for a change of venue, even if they are able to demonstrate that public feeling in the vicinity of the crime may render inpossible a fair and impartial trial. This seems to be a defect in the federal law, which the proposed rules would cure." Homer Cummings, 29 A. B. A. Jour. 655; Medalie, 4 Lawyers Guild R. (3) 1, 5. The 2. The rule provides for two kinds of motions that may be made by the defendant for a change of venue. first is a motion on the ground that so great a prejudice exists against the defendant that he cannot obtain a fair and impartial trial in the district or division where the case is pending. Express provisions to a similar effect are found in many State statutes. See, e. g., Ala. Code (1940), Title 15, sec. 267; Cal. Pen. Code (Deering, 1941), sec. 1033; Conn. Gen. Stat. (1930), sec. 6445; Mass. Gen. Laws (1932) c. 277, sec. 51 (in capital cases); N. Y. Code of Criminal Procedure, sec. 344 The second is a motion for a change of venue in cases involving an offense alleged to have been committed in more than one district or division. In such cases the court, on defendant's motion, will be authorized to transfer the case to another district or division in which the commission of the offense is charged, if the court is satisfied that it is in the interest of justice to do so. The effect of this provision would be to modify the existing practice under which in such cases the Government has the final choice of the jurisdiction where the prosecution should be conducted. The matter will now be left in the discretion of the court. 3. The rule provides for a change of venue only on defendant's motion and does not extend the same right to the prosecution, since the defendant has a constitutional right to a trial in the district where the offense was committed. Constitution of the United States, Article III, Sec. 2, Par. 3; Amendment VI. By making a motion for a change of venue, however, the defendant waives this constitutional right. 4. This rule is in addition to and does not supersede existing statutes enabling a party to secure a change of judge on the ground of personal bias or prejudice, 28 U. S. C. former § 25 (now § 144); or enabling the defendant to secure a change of venue as of right in certain cases involving offenses committed in more than one district, 18 U. S. C. former § 338a (d) (now §§ 876, 3289) (Mailing threatening communications); Id. 18 U. S. C. § 403d (d) (now §§ 875, 3289) (Threatening communications in interstate commerce). Note to Subdivision (c) Cf. 28 U. S. C. former § 114 (now §§ 1393, 1441) and Rule 20, supra. CROSS REFERENCES Blas or prejudice of judge, see section 144 of Title 28, Judiciary and Judicial Procedure. Time of motion to transfer, see rule 22. RULE 22. TIME OF MOTION TO TRANSFER A motion to transfer under these rules may be made at or before arraignment or at such other time as the court or these rules may prescribe. NOTES OF ADVISORY COMMITTEE ON RULES Cf. Rule 12 (b) (3). CROSS REFERENCES Time of motion raising defenses and objections before trial, see rule 12 (b) (3). VI. TRIAL RULE 23. TRIAL BY JURY OR BY THE COURT (a) Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government. (b) Jury of Less Than Twelve. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12. (c) Trial without a Jury. In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially. NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a) 1. This rule is a formulation of the constitutional guaranty of trial by Jury, Constitution of the United States, Article III, Sec. 2, Par. 3: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury Amendment VI: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * *." The right to a jury trial, however, does not apply to petty offenses, District of Columbia v. Clawans, 300 U. S. 617, 57 S. Ct. 660, 81 L. Ed. 843; Schick v. United States, 195 U. S. 65, 24 S. Ct. 826, 49 L. Ed. 99, 1 Ann. Cas. 585; Frankfurter and Corcoran, 39 Harv. L. R. 917. Cf. Rule 38 (a) of the Federal Rules of Civil Procedure. 2. The provision for a waiver of jury trial by the defendant embodies existing practice, the constitutionality of which has been upheld, Patton v. United States, 281 U. S. 276, 50 S. Ct. 253, 74 L. Ed. 854, 70 A. L. R. 263; Adams v. United States ex rel. McCann, 317 U. S. 269, 63 S. Ct. 236, 87 L. Ed. 268, 143 A. L. R. 435; Cf. Rules 38 and 39 of Federal Rules of Civil Procedure, 28 U. S. C. following § 2072. Many States by express statutory provision permit waiver of jury trial in criminal cases. See A. L. I. Code of Criminal Procedure Commentaries, pp. 807-811. Note to Subdivision (b) This rule would permit either a stipulation before the trial that the case be tried by a jury composed of less than 12 or a stipulation during the trial consenting that the case be submitted to less than 12 jurors. The second alternative is useful in case it becomes necessary during the trial to excuse a juror owing to illness or for some other cause and no alternate juror is available. The rule is a restatement of existing practice, the constitutionality of which was approved in Patton v. United States, 281 U. S. 276, 50 S. Ct. 253, 74 L. Ed. 854, 70 A. L. R. 263. Note to Subdivision (c) This rule changes existing law in so far as it requires the court in a case tried without a jury to make special findings of fact if requested. Cf. Connecticut practice, under which a judge in a criminal case tried by the court without a jury makes findings of fact, State v. Frost, 105 Conn. 326, 135 A. 446. CROSS REFERENCES Guaranty of trial by jury, see Const. Art. 3, sec. 2, par. 3 and Amend. VI. Trial by jury, see sections 1861 et seq. of Title 28, Judiciary and Judicial Procedure. FEDERAL RULES OF CIVIL PROCEDURE Juries of less than twelve, see rule 48, following section 2072 of Title 28, Judiciary and Judicial Procedure. Jury trial of right, see rule 38. Trial by court and advisory jury, see rule 39. RULE 24. TRIAL JURORS (a) Examination. The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper. (b) Peremptory Challenges. If the offense charged is punishable by death, each side is entitled to 20 peremptory challenges. If the offense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges. If the offense charged is punishable by imprisonment for not more than one year or by fine or both, each side is entitled to 3 peremptory challenges. If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly. (c) Alternate Jurors. The court may direct that not more than 4 jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath and shall have the same functions, powers, facilities and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to 1 peremptory challenge in addition to those otherwise allowed by law if 1 or 2 alternate jurors are to be impanelled, and 2 peremptory challenges if 3 or 4 alternate jurors are to be impanelled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by these rules may not be used against an alternate juror. NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a) This rule is similar to Rule 47 (a) of the Federal Rules of Civil Procedure, 28 U. S. C. following § 2072, and also embodies the practice now followed by many Federa courts in criminal cases. Uniform procedure in civil and criminal cases on this point seems desirable. Note to Subdivision (b) This rule embodies existing law, 28 U. S. C. former § 424 (now § 1870) (Challenges), with the following modifications. In capital cases the number of challenges is equalized as between the defendant and the United States so that both sides have 20 challenges, which only the defendant has at present. While continuing the existing rule that multiple defendants are deemed a single party for purposes of challenges, the rule vests in the court discretion to allow additional peremptory challenges to multiple defendants and to permit such challenges to be exercised separately or jointly. Experience with cases involving numerous defendants indicates the desirability of this modification. Note to Subdivision (c) This rule embodies existing law, 28 U. S. C. former § 417a (Alternate jurors), as well as the practice prescribed for civil cases by Rule 47 (b) of the Federal Rules of Civil Procedure, 28 U. S. C. following § 2072, except that the number of possible alternate jurors that may be empaneled is increased from two to four, with a corresponding adjustment of challenges. CROSS REFERENCES Challenges of jurors, see section 1870 of Title 28, Judiciary and Judicial Procedure. FEDERAL RULES OF CIVIL PROCEDURE Alternate jurors, see rule 47 (b), following section 2072 of Title 28, Judiciary and Judicial Procedure. Examination of jurors, see rule 47 (a). RULE 25. JUDGE; DISABILITY If by reason of absence from the district, death, sickness or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting in or assigned to the court may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial. NOTES OF ADVISORY COMMITTEE ON RULES This rule is similar to Rule 63 of the Federal Rules of Civil Procedure, 28 U. S. C. following § 2072. See also, 28 C. S. C. former § 776 (Bill of exceptions; authentication; signing of by judge). FEDERAL RULES OF CIVIL PROCEDURE Disability of judge, see rule 63, following section 2072 of Title 28, Judiciary and Judicial Procedure. RULE 26. EVIDENCE In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an act of Congress or by these rules. The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. NOTES OF ADVISORY COMMITTEE ON RULES 1. This rule contemplates the development of a uniform body of rules of evidence to be applicable in trials of criminal cases in the Federal courts. It is based on Funk T. United States, 290 U. S. 371, 54 S. Ct. 212, 78 L. Ed. 369, 33 A. L. R. 1136, and Wolfle v. United States, 291 U. S. 7, 54 S. Ct. 279, 78 L. Ed. 617, which indicated that in the absence of statute the Federal courts in criminal cases are not bound by the State law of evidence, but are guided by common law principles as interpreted by the Federal courts "in the light of reason and experience." The rule does not fetter the applicable law of evidence to that iginally existing at common law. It is contemplated that the law may be modified and adjusted from time to time by judicial decisions. See Homer Cummings, 29 A. B. A. Jour. 655; Vanderbilt, 29 A. B. A. Jour. 377; Holtzoff, 12 George Washington L. R. 119, 131-132; Holtzoff, 3 P. R. D. 445, 453; Howard, 51 Yale L. Jour. 763; Medalie, 4 Lawyers Guild R. (3) 1, 5-6. 2. This rule differs from the corresponding rule for civil cases (Federal Rules of Civil Procedure, Rule 43 (a), 28 U.S. C. following § 2072), in that this rule contemplates a uniform body of rules of evidence to govern in criminal Tials in the Federal courts, while the rule for civil cases prescribes partial conformity to State law and, therefore, results in a divergence as between various districts. Since civil actions in which Federal jurisdiction is based on diversity of citizenship, the State substantive law governs the rights of the parties, uniformity of rules of evidence among different districts does not appear necessary. On the other hand, since all Federal crimes are statutory and all criminal prosecutions in the Federal courts are based on acts of Congress, uniform rules of evidence appear desirable if not essential in criminal cases, as otherwise the same facts under differing rules of evidence may lead to a conviction in one district and to an acquittal in another. 3. This rule expressly continues existing statutes governing the admissibility of evidence and the competency and privileges of witnesses. Among such statutes are the following: BU. S. C. 138 (Importation of aliens for immoral purposes; attempt to re-enter after deportation; penalty) 28 U. S. C. former: ¡ 632 (Competency of witnesses governed by State laws; defendants in criminal cases) 1633 (Competency of witnesses governed by State laws; husband or wife of defendant in prosecution for bigamy) RULE 27. PROOF OF OFFICIAL RECORD An official record or an entry therein or the lack of such a record or entry may be proved in the same manner as in civil actions. NOTES OF ADVISORY COMMITTEE ON RULES This rule incorporates by reference Rule 44 of the Federal Rules of Civil Procedure, 28 U. S. C. following § 2072, which provided a simple and uniform method of proving public records and entry or lack of entry therein. The rule does not supersede statutes regulating modes of proof in respect to specific official records. In such cases parties have the option of following the general rule or the pertinent statute. Among the many statutes are: U. S. C. Title 28 former: |