Daily Archives: March 5, 2008

TMYK: Statute of Limitations is an affirmative defense

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The Statute of Limitations is a legislatively enacted section of the penal code that states:

(b) No person may be prosecuted for any offense, except a capital felony, a class A felony or a violation of section 53a-54d or 53a-169, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense, except a capital felony, a class A felony or a violation of section 53a-54d or 53a-169, except within one year next after the offense has been committed.

The practice book also provides (Section 41-18):

The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information:

(3) Statute of limitations

A Motion to Dismiss exists to test the court’s jurisdiction.

However, caselaw indicates the exact opposite:

Years ago, the United States Supreme Court indicated that “[t]he statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases. . . .” Biddinger v. Commissioner of Police, 245 U.S. 128 (1917). Courts have cited Biddinger for the proposition that the statute is an affirmative defense waived unless asserted at trial.

We think that the more acceptable and better reasoned approach is not to treat the statute of limitations as jurisdictional and hence nonwaivable but as an affirmative defense and hence waivable. In doing so, we incline to the position that, although the protection is given to a criminal defendant by a statute, it is in the nature of a “substantive right,” extending, where timely asserted, immunity from prosecution. See United States v. Gulf Oil Corporation, 408 F. Sup. 450, 455 (W.D. Pa. 1975); United States v. Haramic, 125 F. Sup. 128 (W.D. Pa. 1954); 22 C.J.S., Criminal Law ยง 223, p. 574.

State v. Littlejohn, 199 Conn. 631, 640 (1986). The result of that holding is that the statute of limitations must be raised during trial, just like a normal affirmative defense, after the close of the state’s case-in-chief and if not done, is waived.

Why? The legislature has established time-limits within which individuals must be prosecuted or the state forfeits the right to institute criminal actions against them. It would seem that if a defendant cannot be legally prosecuted after the expiration of the time period, then a court does not have jurisdiction to hear that matter. Why has it been turned into an affirmative defense that must be asserted by the defendant?

Any clue?

Holy mo-zzzzzzzzz (ARO 3/5/08)

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As you can judge by the title, today’s advance release opinions from the Supreme and Appellate Court seem promising but quickly put me to sleep. That may have nothing to do with the opinions themselves.

The Supreme Court issued State v. John M., in which the defendant claimed that the trial court abused its discretion in not permitting the defendant to question the victim about her motive in testifying. His theory was that the victim’s account of the abuse was starkly similar to the victim’s mother’s own abuse as a child and that it would tend to show that the victim’s story was “coached”. The defendant was also precluded from testifying about the victim’s mother’s abuse. The court pulled out the oldest trick in the book, saying that even if the trial court had abused its discretion, because it was a bench trial and the trial court didn’t seem too impressed with that theory, the error would be harmless. The Court also upheld the exclusion of testimony regarding the victim’s mother’s animus toward the defendant, because apparently that is irrelevant to the claim that the defendant abused the victim. What’s that you say? It goes to bias? Well, it seems there was plenty of other evidence from which the trial court could infer animus.

Moving to the Appellate Court, first up is State v. Gonzalez. Basically everybody screwed up. Issues weren’t properly preserved, they weren’t briefed, what seems like a viable motion for new trial based on newly discovered evidence wasn’t properly presented. Clusterf*ck. Habeas coming.

Next, in State v. Abreu, the defendant wanted to introduce evidence of the victim’s “job” as a drug dealer to infer that he was armed and about to attack him or the victim’s BAC or the victim’s status as a fugitive or the victim’s criminal record to support his theory of self-defense. The Court emphatically says “NO”.

This is where I fall asleep. The rest are unremarkable. Read for yourself.