Bill of Particulars

• Jurisdiction: Nebraska,United States
• Citation: Vol. 76
• Publication year: 2021

76 Nebraska L. Rev. 872. Bill of Particulars

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Jeffrey H. Bush*

Child Sexual Assault: The Future of the Bill of Particulars and Plea in Bar After State v. Martinez, 250 Neb. 597, 550 N.W.2d 655 (1996)

TABLE OF CONTENTS

I. Introduction 873
II. Recent Developments 874
A. State v. Quick: The Problem Stated 875
1. Quick and the "Clear Record" Rule 875
2. Criticism of Quick 877
B. State v. Martinez: The Problem Resolved? 878
1. Court of Appeals: Martinez I 879
2. Criticism of Martinez I 881
C. Supreme Court: Martinez II 883
1. Limited Scope of Martinez II 884
2. Issues Raised by Martinez II 885
D. State v. Case: The Constitutional
Protection of the Bill of Particulars 886
1. Motion for a Bill of Particulars Treated as
Motion to Quash 886
2. Bill of Particulars and Double Jeopardy 887
III. Historical Background of the Bill of
Particulars and Plea in Bar 888
A. Federal Influence 889
B. English Background 891
1. Plea in Bar 892
2. Bill of Particulars 893
IV. The Problem with Quick 895

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V. Conclusion: A Few Proposals on Bill of
Particulars Issues 896

I. INTRODUCTION

Recent Nebraska cases, such as State v. Case,(fn1) raise the issue of whether the bill of particulars will have continued vitality in child sexual assault cases. In child sexual assault cases, courts generally have relaxed certain procedural standards while still seeking to preserve the defendant's right to due process.(fn2) The bill of particulars accomplishes this purpose by allowing a defendant to file a motion for a bill of particulars to force the prosecution to set forth the time, place, manner, and means of the crime charged. The purpose of this procedural device is to provide the defendant with sufficient notice of the charges against him so he may prepare his defense.

With specific reference to the protection of double jeopardy, Ne-braska courts have recognized in child sexual assault cases a "blanket bar" to a second prosecution for assaults committed against the same victim within the same time frame.(fn3) This blanket bar is intended to relax the requirement that the prosecution allege specific acts with particularity, while protecting a defendant against prosecution for any act committed within the time frame alleged. Courts sometimes hold that a defendant's right to a bill of particulars is adequate protection from vague allegations of sexual assault(fn4) because a prosecutor is forced to particularize what alleged acts the defendant committed within a specific time frame. If there is a blanket bar, however, a prosecutor may, in a single count, allege an indefinite series of acts occurring within a specific time frame without being required to furnish any particulars. Therefore, in this class of cases the blanket bar makes a bill of particulars superfluous.

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Two aspects of these cases may concern courts, prosecutors, and defense attorneys. The first aspect is the limitation on a defendant's right to a bill of particulars.(fn5) Second, these cases limit the State's right to bring separate prosecutions for a series of transactions, and courts may extend this limitation to criminal cases other than child sexual assault cases. If these concerns have merit, then a defendant will have difficulty receiving a bill of particulars, and prosecutors will lose their traditional discretion to bring separate prosecutions for each offense in a series of offenses.(fn6)

This Article discusses the bill of particulars in recent child sexual assault cases. Part II provides a criticism of recent cases, emphasizing whether it was necessary for the courts to forge a new jurisprudence on the subject of bills of particulars. Part III discusses the history of the bill of particulars in Nebraska. Part IV identifies the specific problem giving rise to this change in the law. Finally, Part V concludes with proposals for future treatment of these issues.

II. RECENT DEVELOPMENTS

A. State v. Quick: The Problem Stated

This Part discusses recent Nebraska cases on the bill of particulars and concludes that courts have engaged in an unprecedented revision of prior holdings. This revision of Nebraska jurisprudence on the bill of particulars began in State v. Quick.(fn7)

1. Quick and the "Clear Record" Rule

In Quick, the State charged the defendant with one count of first degree sexual assault under section 28-319(1)(c) of the Nebraska statutes. The State alleged that the defendant, Gary Quick, subjected his mentally retarded daughter to sexual penetration. Originally, the State alleged the abuse occurred during a period from March 27, 1988 to April 9, 1988. By selecting this time frame, the State intended to cover the last in a series of sexual assaults described by the child victim. The victim reported to authorities that Quick had abused her approximately four times. The victim stated in a pretrial deposition

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that the last of the four assaults occurred within one week of April 9, 1988. At trial, the State intended to prove the fourth and final assault,(fn8) although the State offered evidence of the series of four assaults.

During the trial, the victim stated that when all four assaults occurred, her father would feign a heart attack and then would be transported by rescue squad to the hospital. But, the records of the emergency medical personnel reflected only two occasions when Quick was transported by rescue squad in 1987: on April 26 and August 4. At the conclusion of the State's case, the State moved to amend the information to conform to the evidence by changing the beginning date of the time period from March 27, 1988 to April 25, 1987. This expanded the time frame from two weeks to almost one year within which the alleged sexual assault might have occurred.

The defendant was convicted and appealed, assigning as error the trial court's ruling to allow the amendment of the information. In deciding the issues involved in the appeal, the court applied State v. Pis-korski.(fn9) The facts in Piskorski involved a complaint in county court that initially charged that "[o]n or about December, 1982, . . . Piskor-ski . . . subject[ed] [the victim] to sexual penetration . . . in violation of Section 28-319(1)(a)."(fn10) The next day, the State filed an amended complaint.(fn11) The State then filed an information particularizing the time frame to allege that the offense had occurred "[o]n or after De-cember 11, 1982 and before December 25, 1982."(fn12) Before trial, Pis-korski's motion to quash the information as too vague was denied, and the trial began. At the close of the State's case, the information was amended over objection to further expand the time frame "to allege that the assault occurred on or after September 1, 1982, and before December 25, 1982."(fn13)

On appeal to the Nebraska Supreme Court, Piskorski argued that because the State introduced evidence of several occasions between September and December when Piskorski may have assaulted the victim, he could not know which specific act was involved in his conviction and which act was barred. The supreme court found this argument meritless, stating that a defendant "may go outside the in

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formation itself to determine what charge the conviction was based upon in order to raise it as a bar to a subsequent prosecution."(fn14)

The court found that in Piskorski's case, the jury had been instructed that it could arrive at a guilty verdict based only on an incident when the mother was present, and the child's testimony could be corroborated.(fn15) The jury had been instructed not to consider any other incident described in the child's testimony because such incidents "completely lack[ed] any corroboration and the defendant was never identified as the actor therein."(fn16) In short, the record was clear that only one incident occurred when the mother was present, and thus the defendant could determine which act resulted in the conviction and thus was a bar to further prosecution.(fn17)

The appeals court in Quick distinguished Piskorski on the ground that in Piskorski, "the Supreme Court recited facts specific to the record in Piskorski's case that clearly identified the particular act for which Piskorski was convicted."(fn18) By contrast, in Quick, the court of appeals could not determine from the record the occasion of alleged criminal conduct for which the defendant had been convicted. The court of appeals read Piskorski as standing for the proposition that "[w]hen a conviction could be based on any of two or more occasions of indistinguishable criminal conduct alleged at trial, the record must clearly indicate which occasion of criminal conduct supports the conviction in order for the judgment to serve as a bar to future prosecution."(fn19)

Applying the rule derived from Piskorski to the facts in Quick, the court of appeals reasoned as follows:

We are unable to conceive of facts, within or outside the record, that Quick could use to prove that a future prosecution for first degree sexual assault of the victim would be barred by the conviction now before us If faced with a future prosecution for sexual assault of the victim, Quick might file a bill of

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particulars to force the State to specify which assault was being alleged in the subsequent prosecution. However, the State could pick whichever alleged assault it preferred. The factual pattern of each of the alleged assaults is identical. In Piskorski, the defendant could rely on a distinguishing fact to prevent the State from prosecuting him for the same assault for which he already had been convicted. In the case before us, there would be no way for Quick to prove that he had already been convicted of the assault alleged in a subsequent prosecution.(fn20)

Therefore, the court reversed Quick's conviction and remanded the case for retrial.(fn21)

2. Criticism of Quick

If Quick's...