Mimesis Law
22 July 2019

Statutes Of Limitations Ensure Due Process

November 11, 2016 (Fault Lines) – Fault Lines managing editor Scott Greenfield recently wrote about the statute of limitations. Here’s how he described its purpose:

The statute of limitations exists for a clear reason, to provide a defendant with the opportunity to defend himself, to gather evidence, witnesses and challenge the accusation. Even a decade later, it’s impossible to proffer an alibi defense that you weren’t in Philly the night of the alleged sexual assault, but in Des Moines. Try getting the evidence from the airline, or the railroad, for a random date a decade ago, no less a generation ago. Even if you had a dozen witnesses to back you up, no one remembers what happened on an otherwise unremarkable June 7th 30 years ago. This is basic due process stuff, the ability to defend.

That pretty much is the nutshell version of it. Generally speaking, the time limit is set at some time in the future where it will be presumptively difficult to gather evidence. And there are usually statutes of limitations in both criminal and civil suits. So, it prevents the state from charging a felony identity theft decades after the incident. Likewise, it would prohibit suit for failure to deliver goods after the passage of decades.

In this light, the doctrine also works to reward diligence in pursuing suit. The harmed person is not any less harmed with the passage of time. But there is certainly a strong inference that if the victim did not timely pursue a remedy, then the harm must not have risen to the level of wanting to pursue redress. Eventually, the interest in maintaining the status quo (a/k/a finality) takes priority and the right to even pursue a remedy is extinguished.

Now, there are exceptions to that. A person might be entitled to equitable tolling; the harmed party was unaware of the harm until recently; or the wrongdoer may have acted in such a way to prevent them from asserting the statute of limitations. But in the ordinary case, you snooze, you lose.

In criminal cases, that approach has some harshness. It’s not just about money or negligence; someone could have raped, murdered, or maimed another. And while this is usually a direct victim, there is also some sense that the community at large suffers from crime. Moreover, it is the State, rather than an individual victim, that must bring criminal charges. Although the statute of limitations look similar, the resulting harm from a short and strict statute in criminal matters is potentially greater.

It follows then, there are sometimes colorable reasons to tweak time periods in criminal matters. For example, states like Ohio lengthened its statute in the case of rape, where DNA confirms the suspect’s identity. In the cases where the rapist is a stranger, this change makes sense. In a roundabout way, the offender used his or her anonymity to avoid capture; so, that person should not receive the benefit of the statute. And DNA is a reliable forensic method.

So, why would criminal defense attorneys and prosecutors both be against it? The devil is always in the details. Consider the case where the victim knew the offender’s identity and that the crime was reported. It’s not evident why a later DNA match should increase the statute of limitations. Before the match, there was some reason why the case, if reported, wasn’t prosecuted for the proceeding twenty-five years. After the long delay, the case is doubtfully better, yet it will still consume public resources. Proceeding forward after the delay then is of questionable value, especially if, while the crime was at its freshest, no action was taken to report it or cooperate with an investigation.

Particular when the case is going to revolve around consent, stale, spoiled, and destroyed evidence, it does not suddenly get better because some folks believe hard enough. Scott argues that longer statutes often are just a form of special pleading accompanied by snowflake legislation:

Most telling, however, is that these changes, designed to undermine due process for the lie of a chance to test their cases in court apply only to allegations of crimes against women. Only sexual crimes. Somebody beat you to a pulp on the street, breaking 32 bones? Meh. But if in the process he touched a vagina, as opposed to stuck his finger into your eye socket, it changes everything.

But everything is different when it’s a sexual assault of a woman. Aren’t her feelings of whatever more important than fundamental due process? Of course they are. The law says so, and let’s be honest, you can’t explain why but you share her feelings anyway. After all, they’re just, you know, girls, and, well jeez, they’re too fragile to be expected to function like, gosh, human beings, and they have feelings. But then, better to change legal doctrine than be honest about the problem.

While it’s usually thought of as a right of the accused, you can conceive of statute of limitations as an indirect limitation on majority rule. The angry mob cannot demand prosecutions for crimes that occurred in the distant past. Well, they can, if they get the statute of limitations changed.

Legislators, understandably, are responding to pressure from victims and families, who, also understandably, want justice. And the amount of sex abuse committed on children is probably under-reported. But eliminating or extending the statute of limitations is perhaps not among the best ways to address those problems.

And it’s probably not going to get advocates where they want to go. As Scott eluded to, there is this thing called due process. Generally speaking, due process is something of which we’re quite proud. So, re-writing the statute is one thing, getting the courts to play along is another.

In State v. Jones,[1] the Supreme Court of Ohio addressed a prosecution of a rape case 20 years after it was reported. The case was filed one day before the statute ran—whew! But while that was necessary, it is not insufficient. A defendant can still argue that the delay prejudiced the defendant. If the defendant is successful, then the State has to explain that the delay is justified; otherwise the State loses.

Of course, a due process claim is not the same thing as a due process claim for pre-indictment delay. The statute of limitations is black and white; the due process is anything but that. Further, unlike the statute, the defendant is charged, probably arrested, in jail or out on bond, and requires a lawyer before the defendant can raise the pre-indictment delay issue. Thus, they are not substitutes for one another. On the other hand, the doctrine of pre-indictment delay is increasingly more important as statute of limitations get lengthened or eliminated.

Greenfield is right to demand a rational basis for tinkering with statute of limitations. If law makers and advocates understood that due process is something more than a Christmas ornament we keep in the attic most of the year, we’d be better as a society for it. They should be concerned with due process too. But Scott and I know that’s not how the sausage gets made, especially when election results give youngsters the vapors. But law making should not be confused with a fainting couch.

[1] Check out the lawyers for amici.

3 Comments on this post.

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  • Jeff Gamso
    11 November 2016 at 4:40 pm - Reply

    What, exactly, are you suggesting by urging folks to check out the list of lawyers for amici in State v. Jones?

    A respectful (sort of) query by one of said lawyers. (Catch that “said lawyers,” a demonstration that I can speak in legal.)

  • Brian
    11 November 2016 at 4:52 pm - Reply

    Minor quibble – shouldn’t that be “fainting couch” not “feinting couch” in the last sentence?

    • shg
      11 November 2016 at 5:03 pm - Reply

      It should, but feinting was kinda funny. Oh, alright, fixed.