Criminal defense lawyers in most states have to be concerned with the statutes of limitations on criminal offenses. Statutes of limitations establish time limits for starting criminal proceedings. The rules reflect society’s wish to proceed with prosecutions while memories are fresh and evidence and witnesses are still available. However, in South Carolina there are no overarching criminal statutes of limitations, and few statutes of limitations for individual offenses (statutes like S.C. Code Ann. § 34-11-60, regarding bad/fraudulent checks, may be a rare exception). For most crimes, offenders may be prosecuted no matter how much time has lapsed since the incident.
Statutes of limitations generally start to “run” on the date that crimes are committed. If the applicable time limit expires before criminal proceedings begin, charges should not be filed (it’s up to the defendant, however, to raise the problem).
Typical Statutes of Limitations
The time limits that statutes of limitations establish vary from one state to another and according to the seriousness of a crime. In general, the more serious a crime, the more time a state has to begin criminal proceedings. By way of example, here are some time limits set forth in the current version of Section 1.06 of the “Model Penal Code,” which are similar to those of many states:
murder charges: no time limit
serious felony charges: six years
misdemeanor charges: two years, and
petty misdemeanors and infractions: six months.
States cannot retroactively change the rules to allow prosecution of crimes that are already barred by an existing statute of limitations. For example, assume that Will sexually molests a teenager named Joe. Joe doesn’t report what happened for many years. By the time he tells the police about the molestation, the statute of limitations has expired. Although the legislature can enact a new law that would allow the state more time to prosecute offenders, that new law won’t apply retroactively to Will’s case. (Stogner v. California, U.S. Sup. Ct. 2003.)
CASE EXAMPLE: STATUTES OF LIMITATIONS
Larry breaks into a neighbor’s house and steals an Italian lamp that he has always wanted for his own apartment. The neighbor reports the burglary to the police. However, the police misplace the report and, as a result, don’t begin investigating the crime until many months later. By the time the police arrest Larry and the prosecutor is ready to begin criminal proceedings, the state’s three-year statute of limitations on burglary has expired. As a result, Larry cannot be prosecuted for burglary. If the prosecutor were to begin criminal proceedings, Larry would be entitled to have the case dismissed.
When Does the Clock Start and Stop?
When a crime unfolds over a period of days, months, or even years, prosecutors and defense attorneys may have conflicting positions about when the statute of limitations started to run or was tolled.
In addition, the clock is ticking only during the time that a suspect remains in the state where the crime was committed and has a fixed place of residence or work. In the example above, assume that after committing the burglary, Larry moves to another state for three years. A few months after he returns, the police arrest him for burglary. In these circumstances, the state’s three-year statute of limitations does not prevent Larry’s prosecution for burglary, because the statute of limitations was not running down during the three years that Larry was in a different state.
The Law is Changing
The law in this area is changing and evolving. Many states now allow a case involving sex charges to be brought within one year from the date that DNA evidence establishes the identity of the suspect, regardless of how much time has passed. In cases involving crimes against minors, the majority of states provide that the statute of limitations does not begin to run until the victim turns 18. The laws vary greatly state by state; any time limit for bringing an action will depend on the rules of the state where the crime was committed.
What Happens if a Prosecutor Charges a Case Whose Statute of Limitations Period Has Run?
If a prosecutor charges a “stale case,” it may still proceed through the courts. It’s up to the defendant to figure out whether the statute has “run,” and to raise the issue with the judge. Judges do not take it upon themselves to review cases for possible limitations problems.
Claiming that the statute of limitations has expired is known as raising an “affirmative defense.” Defendants have to petition for dismissal based on a violation of the statute of limitations. For example, if someone pleads guilty to a reduced charge and later learns that the statute of limitations had expired, that person is out of luck. By law, he waived his right to rely on the statute of limitations by not raising the defense while the case was pending.
Your Right to a Speedy Trial and the Statute of Limitations
Statutes of limitations, which establish time limits for starting criminal proceedings, are distinguished from the Sixth Amendment right to a speedy trial, which applies to the length of time between the beginning of criminal proceedings and cases going to trial. For example, a case could be properly brought within the applicable statute of limitations, but dismissed if the prosecutor failed to move it along and a judge decided that the defendant’s right to a speedy trial was violated.
However, in South Carolina there are no overarching criminal statutes of limitations, and few statutes of limitations for individual offenses (statutes like S.C. Code Ann. § 34-11-60, regarding bad/fraudulent checks, may be a rare exception). For most crimes, offenders may be prosecuted no matter how much time has lapsed since the incident.
Source: Alan L. Adlestein, Conflict of the Criminal Statute of Limitations with Lesser Offenses at Trial, 37 Wm. & Mary L. Rev. 199 (1995), http://scholarship.law.wm.edu/wmlr/vol37/iss1/10; S.C. Code Ann. § 34-11-60.