Although, for new sexual assaults, sec. 939.74(2d)(b) makes it unnecessary to swear out John Doe warrants and file complaints prior to expiration of the statute of limitations, it is still wise to do so for older ones.
Section 939.74(2d)(b) took effect Sept. 1, 2001. For crimes occurring before, Sept. 1, 1995, the six-year statute of limitations would already have run by that date, and prosecution would probably be barred if no John Doe complaint was filed.
Admittedly, the terms of the statute itself would not bar such a prosecution, but the ex post facto clause probably would. Furthermore, the legislative history expressly states that such an action would be barred: The treatment of section 939.74(1), (2)(c), and (2d) first applies to offenses not barred from prosecution on the effective date [Sept. 1, 2001] of this subsection.
As noted above, for crimes occurring after Sept. 1, 2001, it is irrelevant whether a John Doe complaint is filed. Provided that a DNA sample is collected by police, the only limitation is that a complaint naming the defendant is filed within one year of actually identifying him through the DNA database.
For crimes occurring between Sept. 1, 1995 and Sept. 1, 2001, the matter is more complicated. As with crimes after Sept. 1, 2001, by the terms of the new statute, a John Doe complaint would not have to be filed. Furthermore, the reasoning in the recent case of State v. Haines, 2002 WI App 130, 256 Wis.2d 226, 647 N.W.2d 311, would apply and permit such a prosecution.
In Haines, the court of appeals held that the extension of the statute of limitations for sexual assault of a child did not violate the ex post facto clause, as to those defendants for whom the statute of limitations had not run when the statute of limitations was extended.
Nevertheless, the Wisconsin Supreme Court granted review in Haines, and heard oral arguments on the case in February, so, pending final word, it would behoove prosecutors to file John Doe complaints prior to the expiration of six years for those cases, if they have a DNA profile of the offender, but no match to any person.
Finally, it must be noted that sec. 939.74(2d)(b) and (c) only apply to sexual assaults, and sexual assaults of children, respectively. Those may be the usual crimes involving DNA evidence, but are not exclusively so. For any other crime for which a DNA sample is available (save homicide which has no statute of limitations), a John Doe complaint must still be filed within six years.
– David Ziemer
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David Ziemer can be reached by email.