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In United States v. Marion, the U.S. Supreme Court decided that the Sixth Amendment provides protection for the accused from prejudice resulting from delays in bringing a case to trial only for a defendant who has been charged and held to answer for the accusations. Delay in bringing charges after the commission of the offense does not implicate the Sixth Amendment speedy trial guarantee and only runs afoul of the Fifth Amendment due process clause if the delay was intentional to gain a substantial tactical advantage over the accused.1 Although the courts of some states have reached a different result on state constitutional grounds,2 Marion is followed by most jurisdictions.
The Marion Court recognized that “[p]assage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself.”3 It observed that statutes of limitations provide the primary guarantee against bringing “overly stale criminal charges” to prevent possible prejudice resulting from the passage of time between the offense and charge or arrest. The Court wrote, “These statutes provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.”4
Citing its opinion in Toussie v. United States, the Court further elaborated on the purpose of statutes of limitations:
The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.5
The time limit for bringing a given criminal charge reflects the legislatures’ balancing of the potential prejudice to the accused with the societal interest in prosecuting those who have committed criminal offenses. This balancing process often results in periods of limitations in a given jurisdiction ranging from two years in misdemeanor offenses to no limitation at all for charges of murder. The rest fall in between with no consistency from jurisdiction to jurisdiction.
Because the political process of legislative action sets the statutes of limitations, they are subject to the influence of current events and changing societal views on certain offenses. Currently, there is a wave of support to either greatly extend or do away with altogether the statutes of limitations applicable to sexual assaults and similar offenses. Although the push to make these changes didn’t begin as a result of the Bill Cosby case, it has certainly provided a rallying cry for the proponents.
This topic stirs deep emotions among those that advocate for change. Most proponents couch their arguments in terms of a struggle for the right of sexual assault survivors to achieve justice. I in no way intend to diminish the emotional and physical trauma suffered by victims of sexual abuse. What I write about here is maintaining the integrity of a legal system where individuals are charged with committing those acts and where liberty may be taken away for all or a substantial portion of the remainder of their lives. In order for that process to proceed in a manner in which the accused has a meaningful opportunity to present a defense, there simply must be some time limit for bringing the case. Otherwise, the accused case will likely be prejudiced as the Marion Court correctly observed.
The arguments for removing the statute of limitations for sexual offenses are somewhat different depending on which of two broad categories of the offenses are under discussion. In cases where the identity of the alleged perpetrator is unknown, the so-called stranger on stranger case, the argument goes that this type of offense should be regarded as seriously as murder and should, therefore, be afforded the same status with respect to the statute of limitations. Proponents also argue that offenders of this type often repeat their offenses, and the older offense is solved only as a result of more recent cases.
First, the potential for prejudice to the accused’s ability to present a defense exists for murder charges as it does for any other offense. Society has skewed the balance against a presumption of prejudice resulting from delay and for preserving the right to prosecute alleged perpetrators based on the judgment that murder is the ultimate transgression against an individual and society. Allowing prosecutions to proceed decades after an allege offense sacrifices the integrity of the proceeding and may put the accused at an extreme disadvantage. The risk of a wrongful conviction is too great when the most essential elements of a defense may have become unavailable. If the balance tips in favor of no statute of limitations in murder cases, it does so ever so slightly. With any other offense we should resist the urge to similarly skew the balance.
Second, when the accused is alleged to have committed both a recent crime and others outside the statute of limitations, existing rules of evidence may well allow the admissibility of the barred offense as evidence of guilt in the one subject to trial. While the defendant may not be punished separately for the older offense, the past may contribute to the conviction or punishment of the later one. The ultimate goal of punishing for the conduct and preventing subsequent acts may be achieved despite the statute of limitations.
A good deal of the debate concerning relaxing or abolishing the statute of limitation for sexual assaults has centered around cases in which the alleged perpetrator was known to the alleged victim but the report of the incident was delayed for years. Proponents of change argue that victims of sexual abuse from known assailants often are intimidated by the prospect of reporting the incident because the person involved was in a position of power over them, they were concerned that their report would not be taken seriously or handled properly by the police, or that the trauma of the event left them in an emotional state that rendered them incapable of withstanding the ordeal of an investigation and trial. The main issue in this category of cases is most often, but certainly not always, consent. Having tried sexual assault cases of both types — where consent was the issue and where the identity of the perpetrator was contested — my experience has been that the full and accurate recollection of the witnesses may often be more essential to the defense in the former than in the latter. For instance, if the theory of the prosecution is that consent could not be given because of the complaining witness’s state of intoxication, then the impressions of witnesses as to the degree of intoxication, nuances of conversations and actions indicating awareness of surrounding, and perhaps bar tabs or credit card receipts showing how much was imbibed would be of tremendous importance. All of this valuable evidence is ephemeral. That is why we rush to take witness statements and preserve documents at the first opportunity after we begin to represent our clients.
Rather than compromise the ability of the accused to defend by extending the length of time in which cases may be brought, I suggest examining the factors that discourage victims of sexual assault from coming forward for an extended period of time. If part of the problem is the attitude of the police or prosecutors toward these types of allegations, then focus on changing those attitudes. If the process is intimidating, then take steps to provide emotional support for individuals who make reports. If the trauma of the event inhibits a victim’s ability for some period of time to relate to authorities what has taken place, then we should study what factors would shorten that time and what is a reasonable amount of time for those factors to subside. If qualified studies show current statutes of limitations to be too short to allow for recovery from the trauma of the incident to an extent that the person can be reasonably expected to relate the experience to the authorities, then the limitations period could be extended as required, but no more.
- United States v. Marion, 404 U.S. 307, 320-326 (1971).
- See People v. Mirenda, 174 Cal. App. 4th 1313, 1327, 95 Cal. Rptr. 3d 702, 712 (2009).
- Marion, 404 U.S. at 321.
- Id. at 322.
- Id. at 323, citing Toussie v. United States, 397 U.S. 112, 114-115 (1970).
About the Author
A certified criminal law specialist, E.G. “Gerry” Morris has been practicing criminal defense law for 37 years. His practice focuses primarily on trials in state and federal courts, but he also handles state and federal appeals as well as post-judgment actions. He is a frequent lecturer at continuing legal education programs.
Law Office of E.G. Morris
2202 Lake Austin Blvd.
Austin, TX 78703