Fawcett factors in Wisconsin

2021See State v. Hurley, 2015 WI 35, ¶53 , 361 Wis. 2d 529 , 861 N.W.2d 174 . ¶10 Initially, citing State v. R.A.R., 148 Wis. 2d 408 , 435 N.W.2d 315 (Ct. App. 1988), Santana argues that the first three Fawcett factors do not apply in his case because he makes no claim that the State could have obtained a more specific time period through greater diligence.

2021See State v. Hurley, 2015 WI 35, ¶53 , 361 Wis. 2d 529 , 861 N.W.2d 174 . ¶10 Initially, citing State v. R.A.R., 148 Wis. 2d 408 , 435 N.W.2d 315 (Ct. App. 1988), Santana argues that the first three Fawcett factors do not apply in his case because he makes no claim that the State could have obtained a more specific time period through greater diligence.

2022On appeal, the State’s response brief expands on that argument, and includes a discussion of the applicability of several factors that are considered when 11 evaluating the sufficiency of a complaint of child sexual assault, known as the Fawcett factors.4 See Kempainen, 361 Wis. 2d 450, ¶¶23-24 . ¶29 Yorke did not refute the State’s argument in his reply brief.

2022Stark, 162 Wis. 2d at 545 ; see also Kempainen, 361 Wis. 2d 450, ¶28 (endorsing a “totality of the circumstances” approach and noting courts may consider the seven Fawcett factors and any other relevant factors helpful to determining whether a complaint is sufficient to satisfy due process). ¶13 Here, the time period alleged was not constitutionally infirm, nor has Heins demonstrated the State was required to do more to narrow the time period.

2021See State v. Hurley, 2015 WI 35, ¶53 , 361 Wis. 2d 529 , 861 N.W.2d 174 . ¶10 Initially, citing State v. R.A.R., 148 Wis. 2d 408 , 435 N.W.2d 315 (Ct. App. 1988), Santana argues that the first three Fawcett factors do not apply in his case because he makes no claim that the State could have obtained a more specific time period through greater diligence.

2021See State v. Hurley, 2015 WI 35, ¶53 , 361 Wis. 2d 529 , 861 N.W.2d 174 . ¶10 Initially, citing State v. R.A.R., 148 Wis. 2d 408 , 435 N.W.2d 315 (Ct. App. 1988), Santana argues that the first three Fawcett factors do not apply in his case because he makes no claim that the State could have obtained a more specific time period through greater diligence.

2015See also State v. Miller, 2002 WI App 197 , 257 Wis. 2d 124 , 650 N.W.2d 850 (applying all seven Fawcett factors despite the absence of any claim of a lack of prosecutorial diligence).

2015See also State v. Miller, 2002 WI App 197 , 257 Wis. 2d 124 , 650 N.W.2d 850 (applying all seven Fawcett factors despite the absence of any claim of a lack of prosecutorial diligence).

1988We used seven factors to assist in applying the test for sufficiency from Holesome v. State, 40 Wis. 2d 95, 102 , 161 N.W.2d 283, 287 (1968), which examines "whether the accusation is such that the defendant [can] determine whether it states an offense to which he is able to plead and prepare a defense and whether conviction or acquittal is a bar to another prosecution for the same offense." Fawcett, 145 Wis. 2d at 253 , 426 N.W.2d at 95 . [1] The seven Fawcett factors, taken almost verbatim from People v. Morris, 461 N.E.2d 1256, 1260 (N.Y. 1984), include: (1) the age and intelligence of the

1988The seven Fawcett factors, taken almost verbatim from People v. Morris, 461 N.E.2d 1256, 1260 (N.Y. 1984), include: (1) the age and intelligence of the victim and other witnesses; (2) the surrounding circumstances; and (3) the nature of the alleged offense, including whether it is likely to occur at a specific time or to have been discovered immediately.

2015State v. Fawcett, 145 Wis. 2d 244 , 253 426 N.W.2d 91 (Ct. App. 1988). 6 In State v. R.A.R., 148 Wis. 2d 408 , 411, 435 N.W.2d 315 (Ct. App. 1988), the court of appeals concluded that a court may consider the first three Fawcett factors only in situations where the defendant claims the State could have obtained a more definite charging period through diligent efforts. 7 Neither Kempainen nor the State raise the double jeopardy factor, whether conviction would be a bar to another prosecution.

2015Second, the first three Fawcett factors necessarily inform other factors, such as the seventh factor, "the ability of the victim or complaining witness to particularize the date and time of the alleged transaction or offense." Id. at 253 .

2021The Complaints Are Constitutionally Sufficient. ¶26 We now consider the seven Fawcett factors, and conclude that the charging time periods “provided adequate notice and thus did not violate 8 In addition to the seven Fawcett factors, courts “may consider any other relevant factors necessary to determine whether the complaint … ‘states an offense to which [the defendant can] … prepare a defense.’” Kempainen, 361 Wis. 2d 450, ¶4 (quoting Holesome v. State, 40 Wis. 2d 95, 102 , 161 N.W.2d 283 (1968)).

2021The Complaints Are Constitutionally Sufficient. ¶26 We now consider the seven Fawcett factors, and conclude that the charging time periods “provided adequate notice and thus did not violate 8 In addition to the seven Fawcett factors, courts “may consider any other relevant factors necessary to determine whether the complaint … ‘states an offense to which [the defendant can] … prepare a defense.’” Kempainen, 361 Wis. 2d 450, ¶4 (quoting Holesome v. State, 40 Wis. 2d 95, 102 , 161 N.W.2d 283 (1968)).