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SCOW to address the test for determining the scope of jeopardy in successive prosecutions

State v. Alexander M. Schultz, 2017AP1977-CR, petition for review granted 4/9/19; case activity (including briefs)

Issues (derived from petition for review):

When determining whether two offenses charged in successive prosecutions are the same in fact for purposes of the Double Jeopardy Clause, how does the court determine the scope of jeopardy when the charged timeframe is ambiguous?

When there is ambiguity in the timeframe of the charging document who bears the burden resulting from the ambiguity–the defendant or the State?

The State prosecuted Schultz for sexually assaulting a child “on or about October 19, 2012” even though he was previously prosecuted for, and acquitted of, repeated sexual assault of the same child “in the late summer to early fall of 2012.” Schultz argues that the second prosecution violated his constitutional right to be free from Double Jeopardy.  There are no Wisconsin cases explaining how courts are to determine the scope of jeopardy when it is unclear whether successive prosecutions are the same in fact. Schultz argues that the court should look to a reasonable person’s understanding of the scope of jeopardy at the time jeopardy attached in the first prosecution and disregard subsequent proceedings. He notes that federal case law supports his position. See e.g. United Stated v. Olmeda, 461 F.3d 271, 282 (2nd Cir. 2006). In contrast, the State argues that the court should decide how a reasonable person would understand the scope of jeopardy in light of the entire record in the first prosecution. The court of appeals sided with the State.  See our post on the court of appeals opinion here. SCOW will weigh in next term.




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