Why "First Time-Second Time" Elections Are Insufficient

by: Ryan Scott • December 19, 2025 • no comments

Assume defendant is charged with twenty crimes over the same five year period in the exact same location. Assume also that the crime happened on a weekly basis. Assume also that you cannot tell from the discovery or indictment the specific incidents that are the basis for crimes 1-20.

Because you keep up on the law, you file a demurrer/motion to require election. The state responds by electing in part as follow. Count 2 is the first time a specific crime occurred. Count 3 is the second time that same crime occurred. Is that enough to save the state? Here's an argument taken from an appellate brief why it is not.

Counts 2-3 alleged the “first time” and the “second time”, respectively that rape was alleged to have occurred. They are also representative of the way the state had “elected” with regard to the other counts. Was that sufficient?

The answer is no, for the obvious reason that “first time” or “second time” provide no factual detail that would be necessary to preparing a defense. The following hypothetical illustrates that point. Assume a “residential abuser” case that a complainant was able to provide more specificity than the usual detail in her forensic interview. She alleges that the first time the abuse occurred was right after the spring final exams of her sophomore year. But at trial, she testifies that the first time the abuse occurred was when she wanted to go to her sophomore homecoming. If the state were to elect one or the other, that would be the kind of specific detail that a defendant would have an opportunity to adequately defend against. But if the state’s only election pre-trial is “first time abuse occurred,” it still would not specify the allegation (final exams or homecoming) he has to defend against. “First time” provides no factual specifics that would allow a defendant to defend himself. In this case, because neither “first time” nor “second time” provided the necessary factual specificity, the election was inadequate and if the demurrer was not granted, the motion to elect should have been.