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A Call for Harmonization Between the Rules of Criminal and Civil Procedure By Niles S. Illich, Ph.D.
Niles Illich is a criminal-appellate attorney at Scott H. Palmer, P.C. in Dallas. He practices in the Fifth, Seventh, Ninth, and Tenth circuits; federal district courts in Texas and Maryland; and all of the state-appellate courts in Texas. Illich has filed more than 100 briefs and has participated in almost 50 oral arguments. He has represented high-profile clients—including clients charged with slavery under 18 U.S.C. § 1589—but also people convicted of routine criminal acts. Illich earned his J.D. from the University of Houston Law Center in 2009. After graduating from law school, he clerked for Hon. Evelyn V. Keyes on the First Court of Appeals in Houston, where he received a foundational education in legal writing. Illich also holds a Ph.D. in 19th-century German history.
The Federal Rules of Civil Procedure date from 1938, and the Rules of Criminal Procedure followed in the Sumners Courts Act of June 29, 1940.1 In the nearly 80 years that these rules have governed civil and criminal litigation, they have been revised numerous times. But the revisions have not emphasized harmony between the rules. This lack of harmony has resulted in important disparities between the rules. Public policy and justice encourage consideration of importing some of the procedural defenses in the civil rules into the criminal rules. This column considers two such defensive tools: challenges to the pleadings and no-evidence summary judgment.
Pleadings Rules 7 through 15 govern civil pleadings. But Rule 8, the “General Rules of Pleading,” requires that all pleadings contain “(2) a short and plain statement of the claim showing that the pleader is entitled to relief.”2 Additionally, Rule 12(b)(6) provides a defense for a “failure to state a claim upon which relief can be granted.”3 Litigation under Rule 12(b)(6) has become a convention of civil litigation.4 Statistics suggest that between 15 and 17 percent of cases asserting a claim as direct as a breach of contract—and where the plaintiff is represented by counsel—are dismissed under Rule 12(b)(6).5 The use of Rule 12(b)(6) results in careful and detailed pleadings. The U.S. Supreme Court has explained that civil pleadings must “contain enough information to state a claim to relief that is plausible on its face.”6 Thus, a complaint must allege enough facts to move the claim “across the line from conceivable to plausible.”7 Determining whether the plausibility standard has been met is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”8 But in criminal cases the pleadings do not face the same scrutiny. Under Rule 7, an indictment or information “must be a plain, concise, and definite written statement of the essential facts constituting the offense … the indictment or information must give the official
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or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.” The criminal rules do not have an equivalent to Rule 12(b)(6) but do permit for the filing of a bill of particulars.9 But a bill of particulars falls well short of a motion under Rule 12(b)(6). First, a district court should not grant a bill of particulars if “the information sought is provided in the indictment or in some acceptable alternate form,”10 such as discovery. Further, specific information—information that might be essential to a defense—such as information about the formation of an alleged conspiracy, is not appropriate for a bill of particulars.11 Instead, a bill of particulars should be issued only where necessary: 1) to inform the accused of the charges against him with sufficient precision to enable him to prepare his defense and avoid surprise, and 2) to enable him to plead his acquittal or conviction in bar of any further prosecution for the same offense.12 A district court also has strong discretion as to whether to issue a bill of particulars—as opposed to a motion under Rule 12(b)(6) where the district court must dismiss if the pleading standards are not met.13 The practical effect is for there to be only a few motions for bills of particulars and fewer granted. These limitations on criminal pleadings result in pleadings that would never be sufficient under the civil rules. A recent pleading from the Northern District of Texas for a kidnapping charge—a charge that carries a potential life sentence—reads: On or about (SPECIFIC DATE),14 in the Northern District of Texas, the defendant (REDACTED), aided and abetted by others known and unknown to the Grand Jury, did unlawfully and willfully seize, confine, inveigle, kidnap, abduct, and carry away and hold Adult Victim 1 (“AV1”) for ransom and reward and some purpose or benefit, and did use a means, facility, and instrumentality of interstate and foreign commerce to-wit: a vehicle, specifically, a (VEHICLE), bearing VIN (REDACTED),
