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Indictment specificity for sex offenses

One of the problems in defending a child molestation case is that the indictment will specify twenty or thirty counts, all allegedly occurring between dates that can be months or even years apart.  The child will testify that the crimes happened on many occasions, but will have no idea as to specific dates and times.

The difficulties this presents are highlighted in the 8th District's recent decision in State v. YaacovThe case presented the same sad facts too many of those cases do:  persistent sexual abuse of a girl by her father over several years.  The problem confronted by the defense was an indictment for 42 counts of rape, 40 counts of gross sexual imposition, and 42 counts of sexual battery, with a date of offense of "April 21, 2001 to January 31, 2004."  The problem confronted by appellate counsel was assigning the lack of specificity as error, when trial counsel had failed to object to it or to demand a more specific bill or particulars.

But the appellate court had some problems, too, in affirming the conviction of 122 of the 124 counts.  (The trial court had dismissed two of them.)  The first obstacle was the US 6th Circuit's opinion in a habeas case last year, Valentine v. Konteh, which is definitely a must-read for attorneys handling these types of cases.  In Valentine, the child victim described a typical incident of the sexual abuse she'd undergone, and testified that it happened "fifteen or twenty times," resulting in defendant's conviction of twenty counts each of rape and felonious sexual penetration.  The 6th Circuit tossed out all but one conviction of each, holding that such a procedure raised due process concerns about a defendant's double jeopardy rights.  One of the requirements for an indictment, as the Supreme Court noted back in 1962, is to make sure everybody knows exactly what the defendant was convicted of, so that he can claim double jeopardy if he's charged with more such offenses over the same time period.  If it's not clear exactly what offenses he was convicted of committing, the Valentine court held, he can't do that.

That wasn't a problem, the 8th District decided:

In the instant case, Y.C. was able to recall when, where, and how the abuse occurred. Although she was not able to give specific dates, partly because her diary was missing, she was able to put each incident in a time frame by detailing where it happened, which house they were living in, where she was working when certain incidents occurred, and who employed Yaacov at the various times she was molested.

The second problem was that while the courts grant a great deal of latitude in such cases, as this 8th District case from last year shows, there are limits, as indicated by this 6th District case from 2001:  essentially, where

the failure to allege a specific date results in material detriment to the accused's ability to fairly defend himself, as where the accused asserts an alibi or claims that he was indisputably elsewhere during part, but not all, of the interval specified.

That didn't turn out to be too much of a hurdle, either, at least according to the court:

We also find that the failure to allege specific dates did not prejudice Yaacov's ability to defend himself because his defense strategy centered on his claim that he never engaged in sexual conduct with his daughter, regardless of the date or place she alleged the abuse took place.

That contention is hard to square Yaacov's second assignment of error:

Yaacov claims that his counsel was ineffective for failing to file a motion for a more specific bill of particulars or a motion to dismiss because the indictment was not specific. He also claims that his counsel failed to file a notice of alibi and present witnesses who would have shown that he was working as a trucker and was home only sporadically during the three years the abuse occurred.

Obviously, there's some inconsistency in arguing that Yaacov wasn't entitled to more specific information because he wasn't relying on alibi as a defense, then claiming that his lawyer wasn't ineffective in not asking for the information that would have allowed him to present an alibi defense.  Still, it's hard to quibble with the result, if only because in this case the prosecution did provide detailed evidence as to the specific incidents.

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