Statute of Limitations

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As you might be able tell from my sidebar, I've been watching a lot of Law & Order lately (all three series that play regularly), and one thing that I've found myself thinking in a number of episodes is that statute of limitations laws often serve injustice more than justice. A serial rapist will go free if they discover who he is one day beyond the five-year statue of limitations. Some crimes don't have a statute of limitations, but a five-year statute of limitations for rape sounds pretty unjust to me given how serious a crime rape is.

I had similar thoughts when we heard about the string of Obama appointees earlier this year who had committed federal crimes by lying on tax forms, sometimes for serious amounts of money, but it was long enough ago that there were absolutely no legal consequences or even requirements to pay up. It just strikes me as unjust. They're criminals, but it's illegal to prosecute them. They ought to be held accountable. So the law seems unjust.

Without doing any research on the history of statutes of limitations, I'd been having that thought. I never got around to exploring the justifications for such laws, though, but I finally did get an explanation on a Special Victims Unit episode (season 1 episode "Limitations") of why there are statutes of limitations. I'd seen this episode years ago, but I guess I hadn't been paying attention well or maybe wasn't raising the question, because a judge explains the original reasoning for such laws in an explanation for how he decides an issue:

The statute of limitations has a long history in common law. It exists to ensure that the defendant receives a fair trial, to make sure that the recollections of witnesses, if any, are fresh, to pressure the government to file charges in a timely manner, and so that, rightly or wrongly, accused citizens need not live their life in fear of the government pursuing them after a long delay.

There seem to me to be three arguments there.

(1) Fair trials require witnesses to have fresh recollections, and a statute of limitations decreases the chances of too-old memories from being used to convict someone unfairly.

(2) Delay in filing charges is bad, and it's good to motivate the government to do so quickly. Statutes of limitations motivate the government to do so quickly, or they'll lose the chance.

(3) It's bad to let the accused live a life of fear of being pursued for a crime after a long delay, and statutes of limitations prevent that.

I have to say that I find these reasons wholly unconvincing. The first one has some merit. The problem is that we don't apply this consistently. Some crimes have no statute of limitations. Maybe it's supposed to be a balancing act, where crimes that are more severe are important enough to allow delayed prosecution in cases where they discover better evidence much later. But if so, why is rape one of the less severe crimes? It shouldn't be. So if this line of reasoning is going to justify some crimes having statutes of limitations but not others, I think we need serious revision of which crimes have them and which ones have longer or shorter limitations. Five years for rape but none for murder seems grossly unjust.

The only other justification I can think of if that rape somehow by its very nature has more risk of unfair trials if there's a delay. Is that so? It's true that rape more often has "he said/she said" kinds of considerations, but it's not more often dependent on testimony than murder. They like to have testimony in both cases, and "he said/she said" testimony should never be enough to convict someone of any crime without further evidence or further testimony. That goes for murder too. It's more difficult to reconstruct motives later on, and that applies to murder too. So I'm not sure this saves the argument.

The second reason also has something going for it. I can understand incentives to get the government to file charges in a timely manner once they have enough evidence to do so. On the other hand, the U.S. Constitution has a double jeopardy prohibition (which I also think can serve injustice often enough, but I doubt it's going away any time soon). If prosecutors bring charges when they can't win a case, and they could have waited until they had a better case, then they might lose the chance to get a conviction. So there might be legitimate reasons to delay even if the person is guilty. If they're not sure who is guilty, then of course they should delay. But is the statute of limitations of five years for rape going to make much difference here? Presumably if they haven't filed charges in five years it's not because they're dilly-dallying. It's because they don't have the evidence. But then when you get the evidence, shouldn't it be fine to pursue it even if it's six years from the crime? So I don't see how this really discourages incompetent delaying enough, and it does prevent morally legitimate pursuit of prosecution.

I have even less sympathy for the third argument. It's true that I wouldn't want the government potentially after me my entire life to prosecute me for something I didn't do or even something I did do, but why should that affect whether we allow it? No one wants to be prosecuted. If they didn't do it, we can hope the process allows enough reasonable doubt, and that's no different with a trial 20 years later than it is with a trial the same year as the incident. If they did do it, then the fear is about avoiding something the person deserves, so we shouldn't cater to that. I don't see how this is all that good a reason. Maybe there are some negatives, but does it justify not being able to prosecute a rapist for a crime committed six years ago when new evidence identifies the perpetrator when it was unknown previously? I don't think so.


I think the main consideration in favor of (2) in today's system is that if your property is collected as evidence the police don't have to return it unless and until either (a) they officially close the investigation, or (b) you are acquitted. If they run out of storage room, they can sell the evidence at auction and when it comes to the time that they would normally have to return it, they can give you the pittance that they made at the auction. As a result of this system, if police have enough evidence to get a warrant to take your stuff, then find out that you are innocent (or can't find enough evidence to prosecute) they will just keep the case open until the statue of limitations runs out so they don't have to return the evidence. (Or rather, so they keep the cash from the auction.)

Nowadays, virtually every search warrant includes computers. There have been numerous cases in which police have auctioned these computers without wiping the hard drives, resulting in identity theft.

Even if it weren't for these serious problems, you still wouldn't want police and prosecutors to have free reign to harass you for the rest of your life on the basis of probable cause alone if there isn't enough evidence to show that you are actually guilty.

I suspect that there is probably some better way of solving these problems than statutes of limitations. We want to protect the rights of the accused (especially the falsely/mistakenly accused), but also see the guilty get punished, and the current system is really flawed in both ways. Still, I wouldn't want to see the statutes of limitations abolished without instituting some stronger protections for the accused.

What if the crime in question has a statute of limitations of 25 years (or if it doesn't even have one)? I'm not sure the problem here is a need for statutes of limitations but a need for reform in laws about retaining of evidence.

After glancing at a couple of law articles, I have a couple of other reasons for the limitation.

1b) In addition to witness memory, perhaps physical evidence is generally considered less reliable if it is collected later; the provenance becomes harder to prove or trust. More important, however, is that exculpatory evidence tends to disappear. The police and the district attorney can identify evidence they want to use and preserve it, perhaps indefinitely. But a person who isn't accused of a crime until 20 years later will have a hard time making his own investigation.

So: Suppose the police in 2009 have a pretty clear idea that they are looking for a criminal matching a certain profile. They don't have a name, maybe, but they have a general description. Or maybe they do have a prime suspect, but they don't have enough proof yet. They will collect and document or preserve specific pieces of evidence that they assume, based on this preconception, will useful to building a case against such a person when they eventually go to court. But then they can't make an arrest or put together a sound case. So twenty years go by. One day in 2029, they turn up a new lead and on that basis finally arrest John Smith (whom I shall presume is innocent). At this point, John Smith is screwed; the police have preserved all sorts of evidence matching his general description -- or even his specific identity, if they fingered him 20 years ago -- but he has almost no chance of establishing an alibi, reexamining the crime scene, or even recalling what he was doing on the day of the crime. Merely because so much time has gone by, the deck is badly stacked against him in court.

4. Except for very serious crimes, the social utility of punishment decreases over time. It makes sense to prosecute a young thief for petty theft; it is likely to dissuade him and other young thieves from thieving. But it probably won't have the same effect on a young man to see a forty-year-old man prosecuted for a petty theft committed when he was twenty. In fact, it could have a perverse effect: it would show that the law doesn't believe in reform and redemption. If the youth has already committed unpunished crimes -- as so many youths have -- he (almost) might as well just keep going, since he'll never be safe from prosecution for even a minor offense. This effect could be especially pronounced in the case of drug offenses, vandalism, or other crimes frequently associated with a particular period of life.

5. Like the constitutional prohibition on ex-post-facto prosecutions, and like laws against blackmail, the statute of limitations tends to prevent the criminal law from being used as a political or personal weapon. It prevents, for example, a political candidate from being jailed (say, by a DA from another party) in his 50s for a drug crime he committed in his 20s. It tends to ensure that criminal prosecutions are initiated only because of a legitimate concern over the crime committed, not for corrupt motives.

And of course, none of these rationales exists in a vacuum; we have to take them together to see why they seemed so compelling in the first place.

In any event, I don't see how the seriousness of rape actually works against the general principle. It might just be that we should class rape in the same category of serious crimes like murder and crimes against humanity, or extend the statute of limitations to some intermediate period.

Yes, I agree. The point I'm making is that in our actual (non-ideal) system, having short statutes of limitations for minor crimes has a mitigating effect on this systemic problem in those cases.

Jonathan, those are better reasons than the ones given by the judge in that episode, but I do think five years for rape is too short.

Kenny, I think that's right, but I still think there's room for reform of some sort, and I think you could deal with that problem in other ways.

a rather lame addition to a serious discussion of the more highminded aspects of law and order : my wife and i love law and order. it is a form-critic's dream! apart from enjoying some of the earlier actors, we love the main character herself : new york. we had hoped to stumble across some NBC crew filming a scene when buying cawffee there one day, but i don't think they are making law and order anymore.


They're still making three of the shows in New York, in addition to several spinoffs elsewhere. The original show has just started showing the 20th season, SVU has just begun its 11th season, and they're now filming the 9th season of Criminal Intent.


Let’s not forget the wrongfully accused who should be given the opportunity to clear their names as quickly as possible. Statutes of limitations deter victims from sitting on their complaints. If I believe that my neighbor stole some tools from my garage, I should bring the charge as promptly as possible and have the matter tried. I shouldn’t be able to sit on the claim for ten years and bring it up when he has irritated me in some unrelated dispute.

Every rule of criminal procedure strikes some balance between the protecting the innocent and punishing the guilty. If our only concern was that the guilty never go free, then we wouldn’t have statutes of limitations, the presumption of innocence, the right to a speedy trial, or the writ of habeus corpus. I don’t think that rape victims should be exempted from the requirement to bring their complaints within some reasonable period of time that protects the rights of the accused although I am not sure that five years is necessarily the right period. There are many legitimate reasons why rape victims are reluctant to bring charges.

As a law school graduate who no longer practices law, I have frequently been impressed with Law and Order and its offshoots, but it takes plenty of liberties. It may not misstate the law very often, but it only gives you as much of the law, or the reasons behind the law, as necessary to advance its story. You will see that one dramatic case where the defendant takes advantage of a technicality to escape justice without seeing the 999 cases where the same rule of criminal procedure prevents the state from overreaching.

BTW, there are various provisions that mitigate the effect of statutes of limitation such as the defendant fleeing the jurisdiction or taking steps to prevent discovery of his crime.

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