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Define the question. What happened? How do they know? (Person or thing as evidence). Do not waste time with asking, "Why did it happened?" Follow the initial interview, you will have an idea of the extent of the Commonwealth's evidence. If the defendant is charged with possession and he was arrested on the street with nothing on his person, you can bet it is a "throw down" case. Usually without conscious effort, the key element will become obvious. By example, the client is charged with possession of cocaine with intent to distribute. He is found with four bags on his person, each bag an individually wrapped bag corner. The only issue in controversy is with "intent to distribute." No one can form their mouth to say it is not cocaine or that the defendant is not in possession. That is going to be the start of the defense.

To insure that you have the necessary facts to formulate an hypothesis of what happened, not what is the defense, but what happened? A bill of particulars may be necessary.

In every case the following two motions should be filed prior to preliminary hearing: Rule 7C:5 discovery and Demand for Particulars. Rule 7C:5 of the Rules of the Virginia Supreme Court permits discovery, at the General District level to limited information. The rule permits discovery limited to statements of the defendant and the defendant's criminal record. Do not file motions demanding tender of the government's witness list or a copy of their stats. No one is going to give it to you and you will have established yourself as a fool. Some attorneys will tell you that you should not file a motion for discovery because the prosecutor will give you "open file" in their jurisdiction. The "open file" practice will not limit the police officer from editing or adding information, not in the file, when he takes the stand. A simple motion under rule 7C:5, demanding tender of all statements of the defendant made to law enforcement, answered in writing, prevents anyone from adding statements attributable to your client in the future.

In some jurisdictions General District Court judges will not adhere to the rules, including Rule 7C:5. Usually, the less intelligent the judge or the judge's perception of his or her powerlessness in the scheme of jurisprudence, the greater the resistance to enforcement. On the other hand, weak judges can be reminded of the importance of their role by attorneys who expect compliance with the rules "just like a real court." Treat the judge as the type of judge and with the importance you would expect the best judge to possess. A Rule 7C:5 motion is not complex. The text will read as follows:

COMES NOW, DEFENDANT, defendant herein, by and through his attorney of record and files this, his Motion for Discovery and Inspection, and moves, pursuant to Rule 7C:5 of the Rules of the Virginia Supreme Court for tender, in writing, of the following specifics known to be in possession of the Commonwealth.

The information sought is:

1. All statements alleged to be those of the defendant made to any law enforcement personnel. The request anticipates and demands tender of all such statements regardless of form: whether in writing, electronically recorded or contained within the recollection of such law enforcement witness.

2. The criminal record of the defendant as would be alleged for purposes of impeachment should the defendant avail himself of his right to testify in his defense.

WHEREFORE, premises considered, defendant prays that the above and foregoing Motion for Discovery and Inspection be, in all things, granted and the Commonwealth order to tender, in writing, the above described information, not less then fifteen days prior to hearing.

Respectfully submitted,

DEFENDANT

This motion is usually the same in every case and should be maintained in the hard drive of your computer.

A request for particulars is not discovery. Discovery seeks tender of specific aspects of the government's evidence. Notice, as contained in a Request for Bill of Particulars, demands tender of the allegation. Discovery deals with how the government will prove your client's guilt. Notice, or particulars, deals with the allegation: what the hell are they saying your client did to get arrested. The request for particulars is one of the most misunderstood rights guaranteed by the Sixth Amendment. The request, or demand, for particulars is a constitutional right and it is not an aspect of discovery. When the country was founded, one thing they hoped to accomplish was to prevent citizens from being tried without knowing why they are being brought before the authorities. Every citizen was entitled to know, preferably in writing, exactly what they said he did so that he could properly prepare a defense. Who, What, When, and Where with sufficient specificity is constitutionally required. Too many attorneys, defense and prosecution, view warrants and indictments as tickets authorizing admission to trial. Warrants and indictments as tickets authorizing admission to trial. Warrants and indictments define the parameters under which trial can commence. Virginia follows a short form rule allowing something less than a five page indictment as preferred by our federal brothers; however, every warrant must have the name of the accused described the offense charged, identify the jurisdiction and the date. The charging document must include the name of any common law offense or the appropriate code section. Simply stated, if everything needed to fully advise of you of what allegedly happened is not contained within the warrant or indictment you are entitled to notice and should file a Motion for Bill of Particulars.

There are some prosecutors who will object to demands for particulars because Rule 7C:5 limits discovery to defendant's statements and criminal record. Imagine being arrested. You ask "why am I arrested?" You are given a warrant alleging bank robbery. You ask "what bank did I rob?" We are not going to tell you. "When did I rob this bank?" We are not going to tell you. Needless to say it would be hard to formulate a defense. Notice is the constitutional right, under the Sixth Amendment of the United States constitution and Article One, Section 8 of the Virginia constitution. Even though a Request for Bill of Particulars is covered by a statute, at the general district court level in section 16.1-69.25:1, Code of Virginia, the right in a criminal case to notice, or a bill of particulars, is constitutional in dimension. The opinion in Pine v. Commonwealth, 121 Va.812, 93 S.E. 652 (1917) gives an excellent explanation of the Sixth Amendment right to notice and the constitutional implications and reversal for failure to grant notice. It is suggested that everyone who wants to be a true trial criminal trial advocate read the opinion in Pine. There are problems with getting particulars in criminal case. The fact that notice is not discovery, which is not constitutionally guaranteed, but based upon the constitutional rights under the Sixth Amendment escapes many judges, most of whom have never been advocates for the expansion and protection of the constitution. Recent case law has several limited the scope of protection afforded by the Sixth Amendment. The harmless error doctrine, even as to constitutional errors, has severely limited the sanction for denial of notice and thus, the impact of the protection. The only way to adequately protect the Sixth Amendment is to move for continuance every time something is discussed or introduced during trial which is not apparent from the warrant.

The protection would apply to preliminary hearings in Virginia, because of Section 19.2-183, Code of Virginia, statutorily guaranteeing a defendant the right to present evidence in his defense during a preliminary hearing and requiring application of the rules of evidence during such hearings. Contrast that requirement with the usual standards for determination of probable cause, which permit hearsay. In Virginia the rules of evidence identical to those for trial, apply in preliminary hearings. Without actual notice, of the type guaranteed by the Sixth Amendment and described in the opinion in Pine, supra, a defendant cannot defend himself or present evidence in a preliminary hearing. A request for particulars or demand for notice should be filed in every criminal case charged. No trial can begin, nor an intelligent investigation begun, without being advised of what it is alleged the client did in violation of the law. This is more important than what actually happened.

IN THE GENERAL DISTRICT COURT FOR ----- COUNTY

... COMES NOW, LADY DEFENDANT, hereinafter referred to as defendant, by and through her attorney of record and files this, her Request for Bill of Particulars and pursuant to ' 16.1:-69.251, Code of Virginia, Article One, Section 8 of the Constitution of the Commonwealth of Virginia and the Sixth Amendment of the Constitution of the United States, moves for an order, directing the Commonwealth Attorney to tender, in writing, each of the following requested particulars. Each of the requested particulars are necessary to fully advise the defendant of the nature of the charges presently pending, to enable the defendant to answer such charges or to plead double jeopardy to a future charge.

In support of the request the defendant would allege the following:

1. Defendant stands charged by felony warrant, alleging a violation of: '18.2-51, Code of Virginia, Malicious Wounding, a felony, which states: A[The defendant] did unlawfully and feloniously in violation of ... maliciously, stab, cut, or wound JOE BLOW with the intent to maim, disfigure, disable, or kill@.

2. the information in the summons does not fully advise the defendant of the acts she is alleged to have committed.

3. the particulars requested are:

1. If it is alleged that the defendant=s words constituted part of the offense, please state, specifically, those words alleged to be spoken.

2. If it is alleged that the defendant=s physical actions, in relation to the victim or any person constituted part of the offense, please state, specifically, those physical acts alleged to have been committed.

3. Please state whether it is alleged the defendant used any weapons or other objects as a weapon during the alleged incident upon the person of the victim.

PREMISES CONSIDERED, defendant prays that the above and foregoing Request for Bill of Particulars be, in all things, granted and that the Commonwealth be compelled to tender, in writing, such particulars, at least, ten (10) days prior to hearing or trial.

Respectfully submitted,

In felonies, a bill of particulars is more important because the indictment should result from the submission of facts to a grand jury. Simply stated, a prosecutor cannot present one set of facts to a grand jury and then, at trial, when his theory blows up in his face, allege another basis, not presented. See: Sixth Amendment, United States Constitution Article One, Section 8, Virginia Constitution Section 16.1-69.25:1, Code of Virginia, (Misd) and Section 19.2-230, Code of Virginia (Fel)

Once you have identified the parameters of the question, i.e., you understand the offense for which your client has been charged, you are ready to start acquiring information or evidence. This is investigation. Remember that you win cases by knowing more about the facts than your opponent.