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Common Law Defenses – Causation, Homicide – “Year and a Day” Rule

State v. Waylon Picotte, 2003 WI 42, on certification
For Picotte: John T. Wasielewski

Issue: Whether conviction for homicide is barred because the victim did not die within a year and a day of infliction of the fatal injuries.

Holding:

¶5. We disagree with the circuit court and hold that the defendant’s conviction in this case is barred by the common-law year-and-a-day rule. In order to reach this conclusion, we must address four successive questions of law that this court decides independent of the circuit court but benefiting from the circuit court’s analysis. The four questions and this court’s answers to them are as follows:

1. Is the common-law year-and-a-day rule the law in Wisconsin? We agree with both the State and the defendant that the year-and-a-day rule has been the law of Wisconsin since statehood, preserved through Article XIV, Section 13 of the Wisconsin Constitution.2. If the year-and-a-day rule is the law in Wisconsin, does this court have the authority to abrogate the rule? This court has the authority to develop the common law and therefore may abrogate the year-and-a-day rule.

3. If this court has the authority to abrogate the year-and-a-day rule, do sufficiently compelling reasons exist for this court to do so now? This court should abrogate a common-law rule when the rule becomes unsound. We conclude that the year-and-a-day rule is an archaic rule that no longer makes sense. Accordingly, the court abolishes the rule.

4. Should the abrogation of the year-and-a-day rule apply to the defendant in the present case? The court may change or abrogate a common-law rule either retroactively or prospectively. We conclude that purely prospective abrogation of the year-and-a-day rule best serves the interests of justice. Thus, prosecutions for murder in which the conduct inflicting the death occurs after the date of this decision are permissible regardless of whether the victim dies more than a year and a day after the infliction of the fatal injury. The prosecution for first-degree reckless homicide in the present case, however, remains subject to the year-and-a-day rule, and because the fatal injury in the present case was inflicted more than a year and a day before the death of the victim, the defendant’s conviction for first-degree reckless homicide is reversed.

This is all clear enough: The year+ rule is viable up to 5/16/03, null subsequently. Conduct ultimately resulting in death must occur on or after 5/17/03 in order to come within the new (post-abrogation) regime. Beyond that, it is “clear that Article XIV, Section 13 specifically incorporates the common law of England as it existed in 1776 into the law of this state.” ¶10. Discerning which common law rules might require resort to such authorities as this (Blackstone); or this (Bracton); or this (Hale). Keep in mind that the supreme court has the authority to abrogate your genealogical effort, ¶24, and isn’t indifferent to its exercise, see State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998).

What, though, of the practical impact of this particular holding? It’s not known how many prosecutions are or might be affected. But State v. Trevor McKee, 2002 WI App 148, holds that neither double jeopardy not lesser-offense statutes bar prosecution for homicide when the victim dies following the defendant’s conviction and sentence for assaultive offenses related to the incident ultimating resulting in that death. In short, McKee eliminates possible procedural bar to prosecution; Picotte eliminates the substantive defense of no-causation. (Causation, of course, remains challengeable, but the “substantial factor” test is so easily met that such a challenge will very rarely be viable.

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