Bill of Particulars

OVERVIEW

The defense may file a motion for a bill of particulars, which allows defendants to elicit greater detail regarding the charges against them. Rule 7 states that “the court may direct the government to file a bill of particulars,” and “the defendant may move for a bill of particulars before or within 14 days after arraignment or at a later time if the court permits.”[1] This allows the defense to understand the prosecution’s case, prevent surprise during the trial, address vagueness or ambiguity in the charges, and potentially file motions to dismiss or strike certain charges or materials. For example, the defense can move to strike images from the bill of particulars that were not presented to the grand jury.[2] A bill of particulars is not, however, “a tool for the defense to obtain detailed disclosure of all evidence held by the government before trial.”[3]

However, if the indictment and discovery materials are sufficient enough for the defense to prepare for the trial, a defendant may not be entitled to a bill of particulars. For example, the Sixth Circuit found that when the government’s indictment specified the charges against the defendant, alleged that the defendant used his computer to advertise, possess, and distribute child pornography over a specific seven-week period of time, provided a report of the government’s forensic investigation, provided hard drives of evidence, and invited the defense to view all the pornography files that had been downloaded from the defendant’s computer, the defendant was not prejudiced by the denial of his request for a bill of particulars.[4]

The Ninth Circuit explains that the “purposes of a bill of particulars are to minimize the danger of a surprise at trial and to provide sufficient information on the nature of the charges to allow a preparation of a defense … These purposes are served if the indictment itself provides sufficient details of the charges and if the Government provides full discovery to the defense.”[5]

When requesting for the Court to enter an order directing the government to file a Bill of Particulars, it is useful to specify the information being sought. For example, the Defense may specify in the motion that they are requesting identification of the images alleged in specific counts, or identification of a victim in specific counts. This will ensure that the Defense is sufficiently able to prepare for trial.

[1]  Fed. R. Crim. P. 7

[2] United States v. McLay, No. CR. 4-15-B-W, 2005 WL 757613, at *1 (D. Me. Mar. 28, 2005) (Unpublished)

[3] United States v. Crayton, 357 F.3d 560, 568 (6th Cir. 2004); United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993)

[4] United States v. Tillotson, 490 F. App’x 775 (6th Cir. 2012) (Unpublished)

[5] United States v. Mitchell, 744 F.2d 701, 705 (9th Cir. 1984)