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The Importance of 'Particulars' in Criminal Fraud Cases
The indictment against your client reads in relevant part as follows: "In or about and between January 2019 and February 2020, the defendants, JOHN DOE and JANE DOE, co-owners of Acme Technology Co., made materially false and misleading statements and omissions to investors regarding, among other things, (i) the current and future revenues of Acme; (ii) the sales forecasts for Acme's main product; (iii) the amount of debt on Acme's balance sheet; and (iv) the executive compensation owed to the defendants." Such broadly worded charges, which describe the nature of the crime but do not identify specific misstatements, are common in fraud prosecutions.
How can counsel effectively defend against alleged false and misleading statements when the substance and timing of the statements are described only in general terms? The problem is especially acute because the defense may turn not simply on whether a given statement was false but also on what the speaker knew and believed at the specific time the statement was made.
The most obvious procedural move is to seek a bill of particulars, which, if granted, would require the government to provide such "particulars" as the substance and timing of the statements at issue. But success on a motion for particulars is highly uncertain. Courts frequently deny particulars in fraud prosecutions, holding that an indictment that provides the general categories of false statements, together with discovery or other pre-trial disclosures by the government, is sufficient to satisfy the demands of due process.
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