Bill of Particulars
A defendant must make a motion for a bill of particulars in order to get one.
TRUE or FALSE?
FALSE
The Court can (and often does) order the Commonwealth to provide one as a matter of course.
Before the Commonwealth can be compelled to identity any expert witness it intends to have testify at trial, what does the defendant have to do?
Make a written request.
RCr 7.24(3)
A witness entered a plea agreement with the Commonwealth which included a condition that he "testify truthfully" at the defendant's trial. Does the Commonwealth have to turn that information over to the defendant? Why or why not?
Yes.
It is exculpatory.
Tamme v. Commonwealth
On the second day of trial, the attorney for the Commonwealth turned over the substance of an oral statement made by the defendant to the defendant's sister. In summarily denying the defendant's motion to exclude the statement, the judge said "they don't have to turn over an oral statement unless it's either ____________ or ___________"
"incriminating" or "exculpatory"
RCr 7.24(1) RCr 7.24(5)
Why should the Commonwealth have to give Mr. Ball a copy of his recorded statement? Mr. Ball was there. Presumably he knows what he said.
Mr. Ball is entitled to adequate notice of the proof so he can prepare his defense. This includes refuting the testimony regarding the statement or explaining the context in which the statement was made.
Trigg v. Commonwealth
When should the court grant a defendant's motion for a bill of particulars?
When it is fairly necessary to enable the defendant to understand and prepare his or her defense without prejudicial surprise.
Wolbrecht v. Commonwealth
An expert is permitted to testify to an additional or undisclosed principle or premise if it is readily deducible from the conclusions contained in his or her report.
TRUE or FALSE?
TRUE
Jones v. Commonwealth
The Commonwealth but not the defendant can be compelled to require it's retained expert to generate a report.
TRUE or FALSE
FALSE. Neither side can be compelled to do that.
Com. v. Nichols (Ky. 2009)
Even if the oral statement the defendant made to his sister was not turned over in a timely manner, and was incriminating or exculpatory, the defendant still may not be entitled to relief of some kind. Why not?
The defendant is only entitled to relief following a discovery violation where (s)he has been prejudiced as a result.
Clutter v. Commonwealth
Mr. Ball wants the personnel file on each of the investigating officers in the case to see if there is anything in there that could affect their credibility (e.g. a written reprimand for lying about where they were working off duty). Is he entitled to those files?
No. But he is entitled to any information contained in those files that affects the officers' credibility.
Brady v. Maryland Rolli v. Commonwealth
In order to determine whether a bill of particulars is "sufficient", it has to be considered along with the ________ as well as the tendered __________.
indictment
discovery
Brown v. Commonwealth
The "written summary of any expert testimony" the attorney for the Commonwealth is required to furnish must identify the witness, his or her qualifications, the opinions (s)he intends to offer, and what one other thing?
The bases and reasons for the opinions the expert intends to offer.
RCr 7.24(1)(c)
The rules of discovery require the Commonwealth to provide the defendant with a list of witnesses it intends to call at trial no later than forty-eight hours prior to trial.
TRUE or FALSE?
FALSE
Cardine v. Commonwealth
The defendant's sister recorded his oral incriminating statements. The attorney for the Commonwealth objected to the motion because, although aware of the recording, it was _________________. The court agreed and denied the motion.
(Fill-in the blank)
not in the Commonwealth's possession, custody, or control.
RCr 7.24(1)(a)
Mr. Ball doesn't trust the attorney for the Commonwealth to review the police witnesses' personnel files and then turn over everything that could affect their credibility. What can he do?
Ask the Court to review the files in camera and decide what, if anything, is disoverable.
RCr 7.24(8)
If the defendant is not sufficiently informed by the indictment of the precise nature of the charges, (s)he should move the court to order the Commonwealth to provide a bill of particulars. What happens if (s)he doesn't?
(S)he waives "the defect" and, as such, cannot raise that issue on appeal.
Elam v. Commonwealth
The Commonwealth is only entitled to reciprocal discovery of the defendant's expert(s) if the defendant has requested disclosure of the Commonwealth's expert(s) under RCr 7.24(1)(c) and these two other things happen.
The Commonwealth has complied with the defendant's request and has made a written request for the defense to do the same.
RCr 7.24(3)(a)
What happens to the exculpatory evidence in the Commonwealth's possession if the defendant fails to make a written request that it be turned over in discovery.
It still gets turned over.
Com. v. Bussell
Even though the attorney for the Commonwealth didn't know about a taped statement the police had taken from the complaining witness, failure to turn it over was a discovery violation. Why?
The police officers' awareness of the tape statement is imputed to the attorney for the Commonwealth.
Anderson v. Commonwealth
On the day before the trial was scheduled to start, the attorney for the Commonwealth found a witness who says she saw Mr. Ball running out of the 7th Street Market carrying a gun on the day of the robbery. What should (s)he do?
(S)he should promptly inform Mr. Ball and/or his attorney and/or the court about the new information.
RCr 7.24(10)
Once the Commonwealth has provided the defendant with a bill of particulars, it is neither necessary nor appropriate to supplement or amend it.
TRUE or FALSE?
FALSE.
A bill of particulars may be amended at any time subject to such conditions as justice requires.
RCr 6.22
Neither the Commonwealth nor the defendant are required to furnish a summary of the testimony of an expert's testimony until they have finally decided to introduce that testimony at trial.
TRUE or FALSE?
TRUE if it can be demonstrated by clear and convincing evidence that it could not, in a timely fashion, have reasonably foreseen a need to introduce it, and the opposing party is not unfairly prejudiced.
FALSE if it can't.
RCr 7.24(4)
Upon written request, the Commonwealth is required to turn over any notes taken by the attorney for the Commonwealth and the police officer during an interview of an eyewitness.
TRUE of FALSE?
FALSE
Hillard v. Commonwealth
No later than 48 hours prior to trial, the Commonwealth has to turn over any written or recorded statements of its witnesses that related to the witnesses' testimony, but only if the statement is either ______________ or ____________.
Signed or initialed by the witness OR purports to be a substantially verbatim statement made by the witness
-RCr 7.26 (1)(a) and (b)
A conviction will only be set aside where there is a reasonable probability that had the evidence been disclosed, the result at trial would have been different.
Weaver v. Commonwealth