I am putting this in Cafe Society rather than General Questions, because although I’m asking what might be a factual question, it’s possible that the answer simply is, “Don’t believe what you see on TV.” I am asking this question fully with the knowledge that the answer might simply be “TV is not real.”
In the most recent episode I’ve seen of the ABC drama “How to Get Away with Murder”, Annalise Keating is arraigned on charges of passport fraud and possession of a false passport, which watchers of the show know are true. Her legal strategy is to demand a Bill of Particulars, as she suspects that prosecutors are really trying to get her for a host of other crimes (also true, though she’s actually innocent of those - she just helped cover up for the true perpetrators after the fact). Somehow she feels that revealing their plans to charge her with these other crimes will invalidate their attempts to prosecute her for the passport crimes.
I don’t quite understand how that could work. Wasn’t Al Capone sent to prison for tax evasion, even though there’s no question the authorities would have loved to charge him with various bigger crimes related to the mob he ran? Why would the government’s plans to prosecute for something bigger hinder their ability to put someone away for the minor thing they can genuinely prove?
I’ve not seen the show. I’m not a lawyer. And I’m not sure what a Bill of Particulars is. Nevertheless…
A criminal defendant is not obligated to testify at their trial. And the factfinder is not allowed to draw an inference of guilt from said refusal to testify. So I don’t see how a trial for passport fraud aids the authorities in the murder case they’re trying to prove up.
If the defendant does decide to testify, they must be available for cross-examination, they may not give false evidence to the tribunal, and obviously, they can’t lie. IIRC, the scope of the cross-examination may not go into areas not introduced during the witness’s direct examination. I don’t know if the defendant may be asked on cross about collateral matters introduced by another defense witness on that witness’s direct examination. But again, the criminal defendant is not obligated to aid the State’s attempt to put on evidence that the defendant is guilty of that crime, or any other.
Anyway, the way, IMHO, for the authorities to get at what I think you’re saying they’re trying to do, is to have a Civil authority, with authority over the defendant, do the questioning. This can be in a civil suit against the defendant, some other public administrative proceeding, etc… In such a proceeding, the 5th Amendment protection against self-incrimination in not available, yet any admissions may be used as evidence in a subsequent criminal proceeding. Again, IIRC, I’m not a lawyer, and I don’t know if this sort of evidence is allowed to be introduced in a subsequent criminal trial.
But if it were, if you want to impeach the witness’s alibi that you anticipate they’ll use in their criminal trial, get them to admit to impeaching facts ahead of time in another proceeding, where they must answer or face other unpleasant consequences. I seem to recall this tactic being deemed unethical and against the Model Rules of Professional Conduct, but it’s TV.
I’m not sure what function a bill of particulars might serve here (assuming it might be jurisdiction ally available). A bop is a tool to force the prosecution to amplify details of its case without which the defence might be at an impossible disadvantage. If a complainant says she was molested three times in 2009 by her uncle, the uncle might well be entitled to some further explanation of the case against him. What is he said to have done? When specifically were they said to have been done? And so on.
But the prosecution is, by this process, not required to reveal oblique tactical decisions, because saying ‘we are secretly trying to use publicity arising out of this weak case to get more complainants whose cases might be stronger’ says nothing about the specifics of the case about which particulars are sought. Indeed, it would be affirmatively bizarre for an accused to ask a question about that directly as part of the particulars process (because it is irrelevant to that process), and even more bizarre for the prosecution to say that in an application for particulars.
I haven’t seen the episode, but I can’t imagine any great difficulty in particularising a passport fraud and possession charge, and I can’t see any gain in it unless, despite the factual truth of the charge, the prosecution’s evidence is too weak to be capable of adequate particularisation. But even that wouldn’t result in the prosecution blurting out their ulterior motive. She might wish to assert that the prosecution’s case is so weak there must be an ulterior motive, but if the case is so weak it will fall of its own inanition, not because of her assertions about ulterior motives. As you rightly observe, there is no principle that it is an abuse of process to charge a person with provable offences, even if the prosecution can’t prove a more serious suspected offence. Everything depends on the strength of the actual passport charges, which will stand or fall on their own.
The narrative driver of all this particularisation bumble would appear to be to make the protagonist seem proactive and in charge, with cool obscure tools at her fingertips that will allow her to work lawyer-magic, rather than passively await the ordinary working out of the process.
I think you nailed it. I’ve watched and enjoyed HTGAWM from the beginning, and it’s never really been necessary to understand all the legalese to follow what’s going on. Even if they get it wrong (which I assume they do often), the writers do a good job of moving the plot forward clearly enough.
In this case, the gist was basically, “Annalise is using some sort of legal Judo move to shift the momentum in her favor. Ha! She’s so smart!” And that’s all we really need to get.