408
Opinion of the Court
conscience of our people as to be ranked as fundamental.' " Ibid. (quoting Patterson v. New York, 432 U. S. 197, 202 (1977)). "Historical practice is probative of whether a procedural rule can be characterized as fundamental." 505 U. S., at 446.
The Constitution itself, of course, makes no mention of new
trials. New trials in criminal cases were not granted in England until the end of the 17th century. And even then, they were available only in misdemeanor cases, though the writ of error coram nobis was available for some errors of fact in felony cases. Orfield, New Trial in Federal Criminal Cases, 2 Vill. L. Rev. 293, 304 (1957). The First Congress provided for new trials for "reasons for which new trials have usually been granted in courts of law." Act of Sept. 24, 1789, ch. 20, § 17, 1 Stat. 83. This rule was early held to extend to criminal cases. See Sparf v. United States, 156 U. S. 51, 175 (1895) (Gray, J., dissenting) (citing cases). One of the grounds upon which new trials were granted was newly discovered evidence. See F. Wharton, Criminal Pleading and Practice §§ 854-874, pp. 584-592 (8th ed. 1880).
The early federal cases adhere to the common-law rule that a new trial may be granted only during the term of court in which the final judgment was entered. See, e. g., United States v. Mayer, 235 U. S. 55, 67 (1914); United States v. Simmons, 27 F. Cas. 1080 (No. 16,289) (CC EDNY 1878). Otherwise, "the court at a subsequent term has power to correct inaccuracies in mere matters of form, or clerical errors." 235 U. S., at 67. In 1934, this Court departed from the common-law rule and adopted a time limit—60 days after final judgment—for filing new trial motions based on newly discovered evidence. Rule II(3), Criminal Rules of Practice and Procedure, 292 U. S. 659, 662. Four years later, we amended Rule II(3) to allow such motions in capital cases "at any time" before the execution took place. 304 U. S. 592 (1938) (codified at 18 U. S. C. § 688 (1940)).
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