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?
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Evidently someone the court wanted to remain convicted was the one with the appeal, you know the bad cases make bad law.
Yeah. I know I’ve gotten the story on Littlejohn before, but I’ll ask again. It does seem result oriented.
An affirmative defense makes absolutely no sense. Ironically, out here in the Eastern District of California, they treat it as a pretrial motion; I don’t know that it deprives the court of jurisdiction, but that would seem to be appropriate. But I do not think that is what we are doing in Ninth District land because, if I remember correctly, the pretrial motion can be waived.
Perhaps tolling was in mind. Yet the proper remedy is not to convert the SOL into an affirmative defense; the adequate remedy is to require the state to offer up proof that tolling is appropriate.
Tolling is a whole ‘nother issue. It seems really counterintuitive.
SOL should be a bar to prosecution and hence a jurisdictional constraint.
Remember the Family Guy episode where Stewie freaks out regarding people who use the phrase “a whole ‘nothing”?
He was talkin’ ’bout you, Gid.
Oooops… “a whole ‘nother.”
I think the right answer is that the affirmative defense/jurisdiction issue is to look at the statute–it’s clearly possible to have statutory language that would make it an affirmative defense.
Connecticut’s statute is framed so that the prosecution itself is unlawful. Hence, the court has no power to create a criminal judgment. Hence jurisdictional issue.
N.B. Given Strickland, I think it pretty clear that the case would ultimately get tossed. It might as well happen earlier. Rule of lenity should also apply here. If the statute is close, then it should be held to be jurisdictional.
Does Connecticut have a tolling concept in its SOL?
Yes it does. If you run away, etc. Also, a warrant tolls the SOL, but it must be served with due diligence and without unreasonable delay.
I am out of my league with all that nitty-gritty stuff.
I just argued this issue today in an ugly sex assault on a child case in Colorado. Here the SOL is considered jurisdictional and can be raised at any point in the proceedings, including post-conviction, even though the statute is silent about when and how the issue should be raised. We also have good case law on the application of the rule of lenity in the SOL context.
My case involves a case recently filed for acts alleged to have occurred in 1987 to 1992, and my client is over 80 years old. A year ago the legislature did away with the SOL in sex assault cases, so defendants are now at risk for a lifetime. I’m trying to convince my judge that the SOL had run prior to the recent amendment and that application of the new SOL would be an ex post facto violation.
Your case law seems like a good example of a bad case making bad law in the appellate context. Colorado’s abolition of the SOL in all sex assault cases is a good example of bad cases making bad policy.
There’s no explicit prospective provision in the new SOL?
Todd, doesnt Stogner v. California address the issue?
http://www.law.cornell.edu/supct/html/01-1757.ZO.html
Gideon: The new SOL classifies sexual assaults in the same category as murder, i.e, there is no longer a SOL for sexual assaults committed as of the date the new law was effective (July 1, 2006). The new SOL also applies to any sexual assault for which the SOL had not already run as of July 1, 2006.
SPO: The principle in Stogner does apply, but Colorado (like most states) has consistenly applied the concept of ex post facto to bar the reviving of SOLs after expiration. I think Stogner was really an anomaly based on some crazy California judges who decided to ignore a whole lot of precedent. The problem in my particular case is that Colorado has amended the SOL applicable to sexual assaults almost every other year for the last 10 years. First, it was 3 years, then it was 10 years, then it was 10 years past the victim’s 18th birthday, and now there is no SOL. Colorado courts have said once the SOL has run, it’s gone; but there is room for the prosecution to argue that sexual assaults committed as long ago as 1992 still come under the law removing the SOL passed in 2006.
I probably should have assumed that you knew what you were doing and could find the relevant S.Ct. case law. Sorry for any offense.
Are the 1987 through 1991 assaults clearly out? The other thing you might look at is the effective date of the statute. I don’t know how Colorado works, but a lot of states make their statutes effective on Jan. 1, July 1 or some other date, unless they are deemed to be an emergency. So, if the charged conucted happened on June 30, 1992 and the SOL ran on June 30, 2002 (under the old 10 yr rule) and the extension of the SOL was passed on May 1, 2002, but effective July 1, 2002, you would fall under Stogner.
You might be able to strike gold by looking at the acts’ effective date. Also, you could dispute when in 1992 the acts occurred. Obviously, a lot of times, the date a crime was committed is not an element of the offense, but here it’s a factual issue.
Anyway, I am sure you’ve thought of all of this crap. I am just a BigLaw transactional lawyer–what do I know?
BigLaw! Heh.
Yep, really f’in BigLaw. Hey, at least I knew the latest ex post facto case off the top of my head . . . . not too bad.
I meant to ask: Who are you and what have you done with SPO?
He’s in a box.
Don’t worry, I am sure I’ll write something to tick you off at some point.