3.6 Bill of Particulars

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

3.6 BILL OF PARTICULARS

A nonconstitutional motion to suppress is not within the purview of section 19.2-266.2 and, therefore, does not trigger that section's mandatory granting of a motion for a bill of particulars. Although a nonconstitutional motion to suppress relinquishes the automatic right to a bill of particulars, it has the advantage that, if granted, the ensuing suppression order is not appealable under section 19.2-398. Conversely, however, the failure to make a constitutional motion to suppress results in a waiver of the constitutional issues. The likelihood of federal review in capital cases suggests that motions to suppress should be stated in terms of federal constitutional grounds.

Section 19.2-230 of the Virginia Code governs general bill of particulars practice. A motion for a bill of particulars must be made before the plea is entered and at least seven days before the trial date. Once the motion is made, the trial court "may" direct the Commonwealth to file a bill of particulars. ¹⁰⁰

[Page 75]

Appendix 3-5 contains a sample motion for a bill of particulars pursuant to section 19.2-230.

In Strickler v. Commonwealth, ¹⁰¹ the trial court granted a request that aggravating factors be identified but denied the remainder of the motion, which sought the specific sections of the capital murder statute charged and the identification of evidence to be used in support of both the charge and any aggravating factors at the penalty trial. The court held that if an indictment gives sufficient notice to permit a defense, a bill of particulars is not required. The court also characterized the request for evidence as an unauthorized attempt to obtain discovery. A similar ruling was made in Quesinberry v. Commonwealth, ¹⁰²...