One of the most vexing conflicts between the defense's need for sufficient particularity in an accusation and the need to protect children from crime, especially sex crimes, was addressed by the Appellate Division, Second Department in People v. Bennett, via New York Criminal Defense.

In that case, the prosecution charged that a second-grade victim was twice raped within a 7 month window, close to the 9 month window that was previously held to be a per se unreasonable in People v Beauchamp.  The court held that as the window came closer to the 9 months, the court was constrained to apply "heightened scrutiny" to assure that the defense wasn't stymied by the lack of specificity and that the prosecution took every action possible to provide a clearer time frame for when the crime was alleged to have occurred.

[A] significantly lengthy period is a factor to be considered, with "proportionally heightened scrutiny" given to whether the People's inability to provide more precise times can be justified as against the important notice rights of the defendant.

Notwithstanding the requirement that a defendant be informed with particularity of when a crime is alleged to have occurred, the courts have long since abandoned the rule when it came to crimes against kids.  Frequently, no one knows that the crime occurred until long afterward, and children are usually unable to specify a date, and frequently even a season, when the crime occurred.  Confronted with this dilemma, something had to give.  Naturally, it was the defendant's rights that were tossed.

These are nightmare cases.  No one can be unsympathetic toward a child alleged to be a rape victim, and almost everyone wants to see the perpetrator be convicted, not to mention punished harshly.  The minor detail, whether the defendant is the perpetrator, is the rub.  Since children are extraordinarily susceptible to influence, and notoriously bad on providing salient details that one would demand of an adult, these cases  become one huge, fuzzy morass.

When confronted with accusations that are so vague as to provide little to fight against, defendant's are left to defend against a moving target.  They can't provide an alibi, since there is no date of offense when it happened sometime within a 9 month period.  It's impossible to beat up a child on the witness stand, unless one wants to guarantee conviction.  On one side sits the angels, and the devil sits next to the defense lawyer (who is viewed as the devil's minion at best).  It's a very ugly situation.

While the Beauchamp 9 month rule provides some limit, it does little to protect a defendant's right to notice.  The Bennett decision seized upon the fact that the child was able to provide some details that could, with additional investigation, have honed in on the dates when the crime supposedly occurred. 

At trial, the victim testified that the two incidents occurred about two weeks apart when she was in the middle of second grade. The first incident occurred when her mother was at the grocery store with the victim's brother. The second incident occurred when the mother took the brother to the doctor. The People should have inquired as to when the mother took the victim's brother to the doctor and/or should have sought to obtain the brother's medical records to narrow the time frame of the crimes as alleged. The defendant's ability to prepare a defense was further stymied by the fact that the victim testified that the incidents occurred in the middle of her second grade school year, which would have been during the winter, but the amended bill of particulars provided that the incidents occurred when the weather was warm. Under these circumstances, when the time period charged, namely seven months, approaches the nine-month period found to be per se unreasonable in People v Beauchamp (74 NY2d 639; see People v Sedlock, 8 NY3d at 538), the People are subjected to "proportionally heightened scrutiny" as to whether their inability to provide more precise times is justified (id at 539). There is no indication that the People inquired of the mother or of the doctor of the victim's brother regarding as to when the brother was treated.

While this is a thin thread to work with, at least the court placed the duty on the prosecution to work a little harder when they allege a 7 month time frame.  What is unclear is whether the court would have placed the same duty on the prosecution had it been a 5 or 3 month period.  After all, the facts suggest that the prosecution could have identified at least the date of one alleged rape through the doctor's records, and neither the prosecution nor the court offer any explanation for why they shouldn't have been required to do so rather than charge a vague period of months at all.

The bottom line, particularly in cases where sympathies and prejudice run so strong, is that the less specificity provided the defense, the fewer tools available to address the charges.  If the crime is discrete, then a date and time should be charged so that the defendant can defend the charge.  Without particulars, there is nothing to defend against except vagaries, and this makes for an impossible situation.

It is understandable that children cannot provide the level of detail one would expect of an adult.  It is not understandable, however, that the prosecution is given a pass in providing particulars when, with diligence, it could do so.  This is true whether the period charged is a week or a year.  Why this should vary because of "heightened scrutiny" as the length of the period grows longer makes little sense.  If particulars can be determined, they should be. 

The slippery slope of putting the defendant's right to notice on a sliding scale lends itself to this sort of mischief.  While the Bennett court no doubt believed it was doing the right thing for the defendant, who was denied his right to specificity and his ability to defend, there is no reason to endorse sloppy investigation or prosecution simply because the victim is a child.  Once the door is opened to sacrificing the defendant's rights in the name of expediency and sympathy, it's almost impossible to get it shut again.