6.8 - IV. The Bill Of Particulars

• Jurisdiction: New York

IV. THE BILL OF PARTICULARS

First, one must proceed to the words of the legislature as of 1982. A bill of particulars is a written statement by the prosecutor specifying “as required by this section” items of “factual” information

which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant’s conduct encompassed by the charge which the people intend to prove at trial on their direct case, and whether the people intend to prove that the defendant acted as principal or accomplice or both. ¹²¹⁶

The prosecutor is not required to include in the bill of particulars “matters of evidence relating to how the people intend to prove the elements of the offense charged or how the people intend to prove any item of factual information included in the bill of particulars.” Following these operative words, CPL § 200.95 specifies the procedure for obtaining a bill of particulars, refusal, court intervention, protective/limiting/conditioning orders and related matter.

“No longer may the court grant or withhold a bill of particulars in its discretion.”¹²¹⁷ “‘The sole function of a bill of particulars is to define more specifically the crime or crimes charged in the indictment, or, . . . to provide clarification of certain matters set forth in the pleading.’ A bill of particulars serves to clarify the pleading; it is not a discovery device.”¹²¹⁸ This is because an indictment, as a pleading, need not be “so specific as to inform the accused of the evidence to be produced against him.”¹²¹⁹ A bill of particulars may be amended during and after the close of the evidence provided there is no undue prejudice to the defendant, the amendment does not change the theory of the People’s case and the People have otherwise acted in good faith.¹²²⁰

A bill of particulars is pursuant to statute and must seek items of factual information not contained in the indictment. For instance, a bill of particulars may not be granted as to the number of grand jurors who heard and voted on the evidence, whether the grand jury proceedings were transcribed, what penal law statutes the grand jurors were supplied with, the legal advice given the grand jury and the interpretation of statutes contained in the indictment, and the substance of evidence given to the grand jury.¹²²¹

Bill of particulars demands that begin with “state whether,” “will it be claimed,” “how” or “and if so whether” are red flags indicating that matter that is not...