02 November 2015

Bills Of Particulars In Virginia Criminal Law

A Bill of Particulars are a form of discovery in which a party seeks answers to particular questions. As I understand it, they are a widely used discovery tool in civil practice. However, for those of us who practice criminal law (at least in Virginia) it is a sort of extraordinary discovery tool available only in specific circumstances.

The primary statute which addresses bills of particulars in Virginia is Va. Code § 19.2-230:
A court of record may direct the filing of a bill of particulars at any time before trial. A motion for a bill of particulars shall be made before a plea is entered and at least seven days before the day fixed for trial and the bill of particulars shall be filed within such time as is fixed by the court.
Of course, that doesn't really tell us anything outside of the scheduling of such a motion. T actually find the parameters within which bill can be filed we have to look (1) to case law, and (2) cases involving certain constitutional issues under Va Code § 19.2-266.2.


The appellate courts in Virginia have not viewed bills of this types favorably and the general rule is that they are only available if the defendant cannot determine what he is charged with under the indictment.
The purpose of a bill of particulars is to state sufficient facts regarding the crime to inform an accused in advance of the offense for which he is to be tried. He is entitled to no more. However, when the statutory language does not in itself fully and clearly set forth all material elements of the offense, a trial court may direct the filing of a bill of particulars. The decisive consideration in each case is whether the matter claimed to be left out of the indictment has resulted in depriving an accused of a substantial right and subjects him to the danger of being tried upon a charge for which he has not been indicted.  Sims v. Commonwealth, 28 Va.App. 611 (1998).
The purpose of a bill of particulars is to state sufficient facts regarding the crime to inform an accused in advance of the offense for which he is to be tried. He is entitled to no more.  Swisher v. Commonwealth, 256 Va. 471 (1998).
Practically, this lays out two circumstances in which a bill of particulars is allowed. (a) First, an indictment could reference a statute which references a common law crime (a regular occurrence in Virginia). (b) Second, the indictment could reference a statute which contains more than one offense.

(a) Referencing Common Law

Reason Needed:  The first situation is commonplace in Virginian law. For instance, there is no statutory definition of larceny. Therefore, an indictment for grand larceny is charged under Va. Code § 18.2-95:
Any person who (i) commits larceny from the person of another of money or other thing of value of $5 or more, (ii) commits simple larceny not from the person of another of goods and chattels of the value of $200 or more, or (iii) commits simple larceny not from the person of another of any firearm, regardless of the firearm's value, shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both.
There are some elements above which added to the common law elements of larceny make the theft a grand larceny (felony), but nothing actually defines larceny. Therefore, if (1) you can stand in front of a judge with a straight face and say that you need a bill of particulars because you don't know what elements the prosecutor plans to prove in order to establish larceny, and (2) the judge believes you, then (3) you should get a bill of particulars. More realistically, this should probably apply to more obscure common law being indicted under a statute. An example of this might be if the prosecution indicted misprision of a felony under the misdemeanor catch-all statute Va Code
§ 18.2-12 (any misdemeanor without a set punishment is a lass one misdemeanor). A typical defense attorney would probably not know the elements of that offense and therefore a bill of particulars would make sense. 

What Should Be Allowed:  Under this allowance of a bill, a defense attorney should only be entitled to a list of elements which the prosecutor plans to prove in order to prove the offense. There would not be a need for any factual/evidentiary disclosure to tell the defendant the elements of the offense he is accused under.

(b) More Than One Offense Under the Statute

 Reason Needed:  Again, this is a common occurrence under Virginia's statutes (I imagine this happens everywhere and particularly in the federal system where a "short" statute only fills two pages and has 14 sections). Take the above grand larceny statute for example. A person can be convicted of a felony if $5+ is taken from a person, $200+ is stolen generally, or a firearm is taken. Suppose a defendant is charged generally with "grand larceny as per the elements of ancient common law and the requirements of Va Code § 18.2-95." The defense could move the court for a bill of particulars to determine which of the three elements the felony statute the prosecution is going to rely upon and he should be entitled to the bill.

What Should Be Allowed:  In this case, a bill of particulars would more accurately be called a "bill of winnowing." The prosecutor should be required to choose which element she intends to go forward under. Again, there would be no need to have any factual/evidentiary disclosures in order to tell the defendant exactly what he is being charged with.

In general, Va Code § 19.2-266.2 is a statute stating that requires written defense motions to be filed 7 days before trial and be argued at least three days before trial. Under subsection A it lays out those areas to which this applies:  (i) suppression of evidence on Fourth, Fifth or Sixth Amendments grounds, (ii) dismissal for violation of speedy trial, (iii) dismissal for double jeopardy, or (iv) dismissal because the statute is unconstitutional.  Then, in subsection C. it throws in bills of particulars:

To assist the defense in filing such motions or objections in a timely manner, the circuit court shall, upon motion of the defendant, direct the Commonwealth to file a bill of particulars pursuant to § 19.2-230. The circuit court shall fix the time within which such bill of particulars is to be filed. Upon further motion of the defendant, the circuit court may, upon a showing of good cause, direct the Commonwealth to supplement its bill of particulars. The attorney for the Commonwealth shall certify that the matters stated in the bill of particulars are true and accurate to the best of his knowledge and belief.
Possible Interpretations: There are two ways to interpret that statute. (i) The one which prosecutors would favor is that this section is merely directing trial courts to do what is normally done under § 19.2-230 which might be required to determine whether double jeopardy applies or whether the charge falls under the part of a statute which might be unconstitutional.  (ii) The one which defense attorneys would favor is a mandated requirement of disclosure pertaining to evidentiary matters which might pertain to the gathering of evidence that might violate the 4th, 5th, or 6th Amendment.  Surprisingly, there seems to be little precedential case law on this; the sole mention seems to be in a throw away footnote in Sims v. Commonwealth, 28 Va.App. 611 (1998)(footnote 3):
Appellant contends that Code sec. 19.2-266.2 required the court to order a bill of particulars. However, that statute operates only where the defendant seeks (1) suppression of evidence as violative of search and seizure or self-incrimination protections or (2) dismissal of an indictment "on the ground that a statute upon which it was based is unconstitutional." Appellant has not alleged any grounds to bring this statute into play. His constitutional claims relate only to the non-specificity of the indictment and do not reach the constitutionality of the underlying statutes he was charged with violating.
 While this is clearly dicta, it is the only direction given us and it limits the requirements of this statute to only three occasions: search/seizure issues, self-incrimination issues, and unconstitutionality of a statute. That doesn't make a whole lot of sense, and a trial court interpreting this statute after Sims recognized this and stretched the interpretation to apply to everything listed in § 19.2-266.2See Commonwealth v. Kuhne, 80 Va.Cir. 299 (2010). Technically, the trial judge was wrong when he broadened beyond the scope allowed by the Court of Appeals (never mind that the trial judge's interpretation makes more sense).

What Should Be Allowed: Under the dicta of Sims, the bill of particulars would be limited to evidentiary issues that pertain to search and seizure or self incrimination protections. As applied to a statute it would just require laying out the elements as per a normal § 19.2-230 bill of particulars (recall, § 19.2-266.2 does not apply to "unconstitutional as applied" arguments which therefore can and would be raised at trial after the evidence has been presented). However, keep in mind that there is no strong precedent anywhere for this and either of my two offered interpretations above could prevail in the end as well as the one offered by the Circuit Court judge.

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