A Bill of Particulars
In many cases, a favorite prosecution tactic is to file a complaint containing numerous counts where each count contains identical language. This is especially true is sex offense cases.
In a recent case, a client was charged with one count of touching a girl 8 years ago (she is now 21 years old), yet the girl claimed he touched her an “unknown” amount of times. She said in her story that she just could not remember how many times she was touched… but what do you want to bet that her story will change and by the time we go to trial she will change her story and miraculously have a very specific detailed memory. Do you think we will ever learn about all the sessions she has with the State paid counselor? Do you think that counselor stays on the State approved list if she does not “help” the prosecutors?
The defendant who is overwhelmed by all of the charges is put in a position of having to guess just what the district attorney is even alleging took place. The numerous counts with repetitive language are extremely difficult to defend against.
The defendant should never be made to face a complaint containing duplicative and repetitive language. In this situation, the defense attorney can strike back by filing a motion for a bill of particulars.
According to the Colorado Rules of Criminal Procedure, Rule 7 (g), the Defense Attorney can file a motion for a bill of particulars. The purpose of this motion is to force the district attorney to define specifically the underlying facts alleged to have been committed within each offense charged. A bill of particulars calls for an exposition of the facts that the prosecution intends to prove and limits the proof at trial to those areas described in the bill.
A bill of particulars also allows the defense to “properly prepare his or her defense” in terms of a possible alibi, witnesses, times and dates of the accused crime and other details that aid in the defenses argument.
A bill of particulars allows for the defense to request specific information regarding his or her charges in order to “avoid prejudice surprise”.
A bill of particulars further ensures that a defendant is not made to face multiple counts that in actuality rely on the same alleged act or conduct. A bill of particulars helps ensure that the defendant is not twice put in jeopardy for the same alleged act.
When addressing motions requesting bills of particulars, the trial judge should consider whether the requested information is necessary for the defendant to prepare his defense and to avoid prejudicial surprise. Although the trial judge has discretion in granting or denying a bill of particulars, a denial of this motion could be grounds for appeal depending on the specifics of the case.
A bill of particulars is especially important in sex assault cases where the accused faces more than one count that contains identical language. Obtaining a bill of particulars helps the defendant and his attorney secure a fair trial. By knowing the specific details to a crime, your defense attorney will better be able to prepare you and your case to be seen in front of a trial judge as well as jury of your peers.
But remember, a motion for a bill of particulars may be made only within 14 days after arraignment or at such other time before or after arraignment as may be prescribed by rule or order. SO we have 14 days to get in this request (sometimes they do not even get us the Discovery or police reports within 14 days.
Compare this with the prosecutor who can amend the charges as to form or substance freely at any time before the trial, of possibly during the trial while waiting for VERDICT!
Are you sure this is a level playing field?
By Shannon Lynch