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point which the Court very much wished to hear and upon which his appeal was ultimately lost. See, pp. 53-4, supra.

L. Direct criminal appeals

The procedure for the taking of direct criminal appeals from federal district courts had, previous to 1954, been simplified by the Supreme Court in Rules 37-39 of the Federal Rules of Criminal Procedure. The petition for appeal, order allowing appeal, citation and assignment of errors had been expressly abolished, and the only documents required to be filed were a formal notice of appeal and the Jurisdictional Statement. The new Supreme Court Rules, however, apply to direct criminal appeals as well as to all others. On the day that the Court's new Rules were issued, Rule 37 of the Federal Rules of Criminal Procedure was amended so as to eliminate the provisions dealing with appeals to the Supreme Court and to substitute a clause stating that appeals to that Court "when authorized by statute shall be taken in the manner and within the time prescribed by its rules." Rule 37 (b), Federal Rules of Criminal Procedure, as amended April 12, 1954, effective July 1, 1954.

The only direct criminal appeals allowed from district courts to the Supreme Court are those by the Federal Government under the Criminal Appeals Act (18 U.S.C. §3731), the contents and meaning of which have been discussed in Chapter II, pp. 23-7, supra. All other federal criminal appeals go first to the courts of appeals, and to the Supreme Court only by petition for certiorari.

Time to appeal and order appealed from. The appeal is perfected by filing a notice of appeal with the clerk of the district court. This must be done "within thirty days after entry of the judgment or order appealed from." Rule 11 (2). This time cannot be extended. Whether the "judgment or order" is a clerk's docket entry on the day of the opinion or a

written order signed by the judge apparently varies from district to district, and perhaps from case to case. See United States v. Hark, 320 U. S. 531, quoted at p. 162n., supra. A resolution of this problem in the Supreme Court Rules or the Criminal Rules would doubtless be helpful.

Changes in the procedure for taking criminal appeals. As has been stated, the direct criminal appeals are now governed by the same rules as other appeals to the Supreme Court. The new procedure was to a considerable extent modeled upon that previously prescribed in the Federal Rules of Criminal Procedure for appealing criminal cases. The principal differences are (1) that the new notice of appeal also requires the statement of the designation of the portions of the record to be certified and of the questions presented (see pp. 226, 229, supra), and (2) that the Jurisdictional Statement should not be filed with the notice of appeal in the district court but must be filed simultaneously with the record in the Supreme Court. The effect of the change last mentioned is to ease the burden of counsel by giving them considerably more time to prepare the Jurisdictional Statement than the short period of thirty days allowed for the taking of the appeal.



A. What may be certified

The Supreme Court has jurisdiction to review questions certified to it by the United States courts of appeals and by the Court of Claims.1 28 U.S.C. §§1254 (3), 1255 (2).

These provisions read as follows:

"Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:

(3) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy." 28 U.S.C. §1254 (3).

"Cases in the Court of Claims may be reviewed by the Supreme Court by the following methods:

(2) By certification of any question of law by the Court of Claims in any case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions on such question." 28 U.S.C. $1255 (2).

Rule 28 prescribes the form of the certificate which the lower court must prepare, as follows:

"Where a court of appeals or the Court of Claims shall certify to this court a question or proposition of law, concerning which it desires instruction for the proper

1 The practice and procedure in respect to certified questions is critically analyzed and the subject explored at much greater length than is possible here in Moore and Vestal, Present and Potential Role of Certification in Federal Appellate Procedure, 35 Va. L. Rev. 1 (1949).

decision of a cause, the certificate shall contain a statement of the nature of the cause and of the facts on which such question or proposition of law arises. Questions of fact cannot be certified. Only questions or propositions of law may be certified, and they must be distinct and definite." The number of cases certified to the Supreme Court is very few, averaging about one per term in recent years.

Whether questions should be certified is entirely for the lower court to determine. The court, not counsel, prepares and signs the certificate, which is certified by the clerk and forwarded by him to the Supreme Court. For a form, see p. 432, infra. On occasion counsel have suggested, unsuccessfully so far as appears, that a court of appeals certify questions to the Supreme Court, but several courts of appeals have questioned the propriety of such a request.


The controlling statute, quoted above, places no jurisdictional limitation upon the right of the lower court to certify any question in any cases except that the certificate shall relate to a "question of law. . . as to which instructions are desired." The last phrase indicates that the lower court should be in doubt as to the question certified. But the certificate may be submitted at any time, even after judgment where a motion for rehearing is granted."

2 Cella v. Brown, 144 Fed. 742, 765 (C. C. A. 8) certiorari denied, 202 U. S. 620, and cases cited; Williams v. Order of Commercial Travelers, 41 F. 2d 745 (C. C. A. 6); Dickinson v. United States, 174 Fed. 808 (C. C. A. 1). The Second Circuit has declared that it will not certify questions unless the same point is already pending before the Supreme Court. Taylor v. Atlantic Maritime Co., 181 F. 2d 84 (C.A. 2).


& Cella v. Brown, supra; Louisville, N. A. & C. Ry. Co. v. Pope, 74 Fed. 1, 10 (C. C. A. 7).

*Columbus Watch Co. v. Robbins, 148 U. S. 266, 268-269; Sigafus v. Porter, 85 Fed. 689 (C. C. A. 2), reversed on other grounds, 179 U. S. 116; Williams v. Order of Commercial Travelers, 41 F. 2d 745 (C. C. A. 6).


* Wall v. Cox, 181 U. S. 244, 246; Gableman v. Peoria, D. and E. Ry., 101 Fed. 1 (C. C. A. 7), 179 U. S. 335.

Nevertheless, despite the absence of any other statutory restrictions, the Supreme Court has established a number of requirements as to the contents and nature of certificates which are in substance jurisdictional. Supreme Court Rule 28 embodies the general principles in this respect. It provides that only questions of law may be certified and that they must be distinct and definite; the certificate itself must contain a clear and precise statement of the nature of the cause and the facts upon which the legal issues are based.

No facts are considered except those stated in the certificate (Stratton's Independence v. Howbert, 231 U. S. 399, 422), and these must be ultimate facts, not evidentiary facts or evidence from which factual conclusions or inferences are still to be drawn (Cleveland-Cliffs Iron Co. v. Arctic Iron Co., 248 U. S. 178). It is not proper for the certificate to attempt to incorporate the transcript of record by reference. Dillon v. Strathearn S. S. Co., 248 U. S. 182. The Court has frequently dismissed certificates on the ground that it was improper to certify questions of fact or mixed questions of law and fact (United States v. Mayer, 235 U. S. 55, 66; Pflueger v. Sherman, 293 U. S. 55, 57-58), questions which are academic or hypothetical or are dependent upon other questions which may not appropriately be answered, or will not arise unless other questions not decided below or certified are decided in a particular way (Busby v. Electric Utilities Union, 323 U. S. 72, 75 and cases cited), questions of objectionable generality (Pflueger v. Sherman, 293 U. S. 55, 58), or which are so broad or indefinite as to admit of different answers in different circumstances (White v. Johnson, 282 U. S. 367, 371; National Labor Relations Board v. White Swan Co., 313 U. S. 23, 27), questions covering unstated matter lurking in the record (Triplett v. Lowell, 297 U. S. 638, 648; Atlas Ins. Co. v. Southern, 306 U. S. 563, 571-573). A question as to whether an indictment or complaint is sufficient on

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