2.4 PRETRIAL MOTIONS
2.401 Motion for Bill of Particulars. The defendant may request a bill of particulars to gain more information about the charges against him or her. In criminal cases in district courts not of record, the statute provides that the motion must be made at least seven days before trial and before a plea has been entered. 129 In criminal cases in circuit court, the basic requirements are the same, and the judge will set the time for the bill of particulars to be filed by the Commonwealth. 130 The court must direct the
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Commonwealth to file a bill of particulars if the defense requests it and may, for good cause shown and if an additional motion is made, direct it to supplement the original filing. 131
2.402 Motion for Discovery. Rule 7C:5 of the Rules of the Virginia Supreme Court dictates the practice of discovery motions in a general district court for misdemeanor trials and for preliminary hearings in felony cases. Motions for discovery must be filed at least 10 days before trial. The defense is entitled to discover the accused's written or recorded statements and the substance of any oral statements. The defense is also entitled to the accused's criminal record. Subsection (f) of the rule states that the court has the authority to sanction the Commonwealth for failure to provide discovery by ordering compliance with the terms of the discovery order and by granting the defendant a continuance. Section 19.2-265.4(B) of the Virginia Code goes a step further for circuit court trials and states that the court can prohibit the Commonwealth from introducing evidence that it failed to disclose pursuant to the discovery order. The duty to disclose is continuing and applies to any additional evidence or material discovered by the Commonwealth before or during the trial. 132 Rule 3A:11 of the Virginia Supreme Court governs circuit court discovery practice, and the amendments that became effective July 1, 2020 will give defendants much greater access to the information underlying the Commonwealth's case.
Exculpatory evidence, also known as Brady 133 material, is also a proper subject of a defense discovery request. Failure to disclose exculpatory evidence that is material to a determination of guilt or to sentencing issues may be an error of constitutional dimension that implicates the due process rights of the defendant.
2.403 Motion to Suppress. Sections 19.2-60 and 19.2-266.2 of the Virginia Code regulate the practice for filing motions to suppress evidence. If the court grants a motion to suppress, the seized property cannot be admitted into evidence at any hearing or trial and must be restored to the owner as soon as practicable—but if the motion is granted by a court not of record, the ruling affects only the admissibility of evidence in a hearing or trial before that court but has no effect on any later hearing or trial in a court of record. 134
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A motion made under this section is decided according to the established rules governing the suppression of evidence.
Once a motion to suppress is made, an evidentiary hearing must occur. At that hearing, it is the Commonwealth's burden to put on evidence and...
