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Third Circuit holds Fed. R. App. P. 4(b) not jurisdictional, and explicates the rule on questioning a defendant at trial on post-arrest silence.

By Candace Hom, Melinda Ghilardi, Nancy Rimmer, Sarah Gannett, Renee Pietropaolo and Tieffa Harper

In Gov?t of V.I. v. Martinez, No. 08-2694 (3d. Cir. Sept. 8, 2010) the Third Circuit clarified two rules, on procedural, one substantive.The defendant was convicted in the Territorial Court of the Virgin Islands for kidnapping for rape. The Appellate Division of the District Court of the Virgin Islands affirmed.Martinez then appealed to the Third Circuit -- late. The procedural issue that the Third Circuit addressed was Martinez?s untimely filing of his notice of appeal.The Court ruled that the time limitation in Federal Rule of Appellate 4(b), while a "rigid" deadline, is a claim-processing rule subject to forfeiture, and not jurisdictional. In other words, if a criminal defendant files a late notice of appeal, and the Government moves to dismiss the appeal for filing out of time, the Court will dismiss the appeal...continue to full post

Full post as published by Third Circuit Blog on September 29, 2010 (boomark / email).