In a 4-3 decision, SCOW holds that the State may assert a vague charging period (i.e “late summer to early fall”) for repeated child sexual assault, but then constructively narrow the charging period after trial in order to bring a second prosecution for child sexual assault without violating the Double Jeopardy Clause.
As explained in our post on the court of appeals decision, the State charged Schultz with repeated sexual assault of a child under 15 in “the late summer to early fall of 2012.” M.T., the victim, admitted having sex with another man in early to mid-October. On the morning of Schultz’s trial, the State was still waiting for the results of a paternity test but decided to proceed with the trial anyway.
A jury acquitted Schultz of repeated child sexual assault. A few days later, test results showed that Schultz was the father of M.T.’s baby, which was conceived on October 19th. So the State charged Schultz with committing sexual assault “on or about October 19th.” The circuit court and court of appeals held that “October 19th” is not part of the “late summer and early fall” time frame.
The majority opinion (written by Rebecca Bradley) affirms:
¶55 We hold that when the State charges a defendant in a subsequent prosecution for conduct the defendant contends overlaps the first prosecution’s timeframe, courts may examine the entire record of the first proceeding to determine the actual scope of jeopardy in the first proceeding. The test to determine whether the earlier timeframe included the second is not what a reasonable person would think the earlier timeframe includes. Instead, the reviewing court ascertains the parameters of the offense for which the defendant was actually in jeopardy during the first proceeding by reviewing all of the evidence, testimony, and arguments of the parties.
¶56 The State’s prosecution of Schultz for sexual assault of a child under 16, “on or about October 19, 2012,” did not violate the double jeopardy provisions of the Fifth Amendment or Article I, Section 8. This second prosecution for sexual assault was not identical in fact to the first prosecution for repeated sexual assault of a child in “late summer to early fall of 2012.” A court’s determination of the scope of jeopardy in a prior criminal prosecution is based upon the entire record of the first proceeding, including the evidence introduced at trial. It is the entire record of the first proceeding that reveals the details of the offense for which the defendant was actually in jeopardy during the first prosecution.
A tad defensive about its reasoning, the majority added an “Admonition” at the end of its opinion:
¶53 Our opinion should not be read to approve attempts by the State to use imprecise charging language in an effort to skirt the protections against double jeopardy. As the court of appeals correctly noted, defendants faced with uncertain language in a charging document should raise the issue to the circuit court through an appropriate motion. See Wis. Stat. § 971.31 (pretrial motions including defects in the indictment); State v. Miller, 2002 WI App 197, ¶¶8–9, 257 Wis. 2d 124, 650 N.W.2d 850 (motion to dismiss based on vague or overbroad charging period and motion requesting a more definite and certain statement); Fawcett, 145 Wis. 2d at 250–51 (due process challenges to the sufficiency of an indictment).
In other words, the State can be vague as long as the defense doesn’t object.
Hagedorn filed a dissent by AWB and RFD. He notes the rule that a complaint for child sexual assault needn’t set forth precise allegations of the date the crime occurred because it is hard for children to remember specific dates and details. Dissent, ¶62. But the corollary is that the State must “endure a rigid double jeopardy analysis if a later prosecution based upon the same transaction during the same time frame is charged.” Dissent, ¶65 (quoting State v. Fawcett, 145 Wis. 2d 244, 255, 426 N.W.2d 91 (Ct. App. 1988). “This guarantees that the State’s pleading flexibility is not acting as both a sword and a shield against the defendant.” Dissent, ¶70.
Unlike the majority, the dissent would follow United States v. Olmeda, 461 F.3d 271 (2d Cir. 2006). Among other things, Olmeda held that courts must decide whether a “reasonable person familiar with the the totality of the and circumstances would construe the initial indictment, at the time jeopardy in the first case, to cover the offense that is charged in the subsequent prosecution.” Majority, ¶46 (quoting Olmeda at 282).