Public Defense

TMYK: Statute of Limitations is an affirmative defense

By Gideon

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 § 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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Full post as published by A Public Defender on March 05, 2008 (boomark / email).