a public defender

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One of the first things I learned (among several hundred others) in the criminal clinic at the law school was seeking a bill of particulars. The State files a short-form information, you ask for the long-form version. You make the State commit to its theory of the case and lay out, specifically, the exact nature of the charges. This seems only fair and serves to validate Due Process. The defendant must have notice of the charges against him and the statutes he is alleged to have violated (I’m not saying you do this in every case - you have to use your judgment, but that’s for another day).

Translated into real life, though, this almost never happens the way you want it to. Scott complains here of the government not wanting to provide particulars because it didn’t want to limit the basis for the charges. More than the moving target of the conduct, it is the moving target of time that I find to be impossible to defend against.

Consider the sexual assault case. The “victim” is sexually abused and a few months or even a year later reports it to the authorities. Or in child sex assault cases, several years later. The prosecutor files the information, alleging a violation of the child sex statutes. The particulars?

From 2002-2005, this defendant sexually assaulted this “victim”. Defend that. It’s impossible. The only way to win a case like that is to undermine the credibility of the “victim”. You cannot present an alibi defense, simply because you cannot provide an alibi for 3 straight years. Try it; it’s just not possible. If you say I was out of town on Monday, the State says it could have been Tuesday. Could have, would have, should have. Yet this is okay.

The state does not have to prove, and often does not even put on evidence of, when it is that this crime is said to have been committed. This allows them to paint with a very broad brush, increasing the pressure on a defendant to take a plea offer.

I don’t know what can be done about this other than to take a stand every time the state alleges something like this. Ask for a bill of particulars; argue that it’s impossible to defend against; that you don’t have notice. Because you don’t, really.