Rule 571 of Criminal Procedure allows for a formal arraignment. This is a date set by the Court where a Defendant is called forward and told he has a right to be represented by counsel, the nature of the charges against him, the right to file a Bill of Particulars, Discovery Motions and finally any omnibus pre- trial motions within specific time limits. Usually immediately after a preliminary hearing, a Defendant and his attorney waive in writing the need for formal arraignment certifying that the Defendant understands the nature of the charges against him and his pre-trial rights within a certain time period. This is a forgotten procedure in our Courts because of pre-trials and notices. In Lackawanna County, a pre-trial is held six weeks after a case has been bound over by a District Judge. The same is true for Luzerne and Wayne Counties. All our local counties have specific rules on the manner in which you waive arraignment and who is served. A practicing attorney needs to know the specific local rules and procedures before getting involved in a complex criminal case.
The first thing that must be done is to follow Rule 572 and ask for a Bill of Particulars. This needs to be filed within 7 days of the arraignment, the Waiver of Arraignment or pre-trial. In this motion, a request is made to the Government or District Attorney to set forth specific particulars of the case. Upon failure or refusal of the District Attorney or Government to furnish a Bill of Particulars, the Defendant may make a Motion for Relief of the Court within 7 days after the time of refusal. The traditional function of a Bill of Particulars is to clarify from the pleadings and to limit the evidence which can be offered to support an information.
Next, a defense attorney needs to file Rule of Criminal Procedure, Rule 573, which is pre-trial discovery and inspection. The only problem is that some of the evidence such as statements and witnesses are held by the police department as part of their prosecution and they have not turned it over to the District Attorney in time for pre-trial inspection by the Defendant. This is called an informal request. However, if the prosecution refuses to grant Discovery or is just too busy to call and say come on over to look at their case, a defense attorney, within 14 days of the arraignment or pre-trial, shall file a formal Motion for Discovery or Inspection. In this matter, disclosure by the Commonwealth is mandatory when it speaks of areas which the Commonwealth shall permit the Defendant’s attorney to examine photographs and any evidence favorable to the accused that is a matter either to guilt or to punishment and is in the possession of the District Attorney’s office. They must also turn over any statements or confessions that the Defendant has made, whether they are oral or written. The Commonwealth must present the Defendant’s prior criminal record and the results of any identification situations by voice, photograph or in person identification. They must also turn over any reports and results of scientific tests, expert opinions, polygraph examination or other physical or mental examination results as well as any objects including documents, photographs, fingerprints or other tangible evidence such as transcripts, recordings, electronic surveillance and also the authority by which said transcripts or recordings were obtained.
Finally, the Court has discretion on ordering the District Attorney to provide the names and addresses of eyewitnesses and written or recorded statements of witnesses that the Commonwealth intends to call at trial. However, if the county’s District Attorney Office has an open file policy from the start, this is not necessary.
One must be aware that a Defendant, who does not have to provide anything by way of defense, may be ordered by the Judge to provide reasonable notice of witnesses that the Defendant intends to call at trial as well as any experts along with their report.
There is also a continuing duty to disclose any information the Commonwealth develops during the course of their investigation up until the time of trial.
Usually a Motion for Discovery or Bill of Particulars is accompanied by a short and specific Brief on the issue. All Motions and Briefs along with answers shall be filed with the Court, with the Judge and with all parties involved.
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