Opinion
Opinion Delivered February 24, 2005
The Supreme Court Committee on Criminal Practice has proposed amendments to two Rules of Criminal Procedure. The change in Rule 16.2 is a technical correction to correct the reference in paragraph (d). The amendment to Rule 22.3 is in response to our decision in Woolbright v. State, ___ Ark. ___, ___ S.W.3d ___ (2004) and is further explained in the Reporter's Note to the rule.
Rule 16.2 (d) An order granting a motion to suppress prior to trial shall be reviewable on appeal pursuant to Rule 36.10 of Appellate Procedure — Criminal 3.
Rule 22.3 (a) When a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court shall determine whether the prosecution intends to offer the statement in evidence at the trial. If so, the court shall not use a joint trial with dual juries but shall instead require the prosecuting attorney to elect one (1) of the following courses:
(i) a joint trial at which the statement is not admitted into evidence against any defendant;. . . .
We adopt the amendments to both rules and republish the rules as set out below. We express our gratitude to the members of the Criminal Practice Committee for their work. These amendments are effective immediately.
RULE 16.2. MOTIONS TO SUPPRESS EVIDENCE.
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(d) An order granting a motion to suppress prior to trial shall be reviewable on appeal pursuant to Rule of Appellate Procedure — Criminal 3.
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RULE 22.3. SEVERANCE OF DEFENDANTS.
(a) When a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court shall determine whether the prosecution intends to offer the statement in evidence at the trial. If so, the court shall not use a joint trial with dual juries but shall instead require the prosecuting attorney to elect one (1) of the following courses:
(i) a joint trial at which the statement is not admitted into evidence against any defendant;
(ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, provided that, as deleted, the statement will not prejudice the moving defendant; or
(iii) severance of the moving defendant.
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Reporter's Note, 2005 Amendment: In Woolbright v. State, ___ Ark. ___, ___ S.W.3d ___ (2004), the Supreme Court barred the use of dual juries until development of a rule that specifically addresses the practical considerations necessary to safeguard the rights of defendants. The 2005 amendments modified subsection (a) to incorporate this holding.