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257.9 Statute Of Limitations

    257.9.1 Statute of Limitations: Right to Instruction
    257.9.2 Reversible Error To Refuse Instruction On Statute Of Limitations As Defense Theory
    257.9.3 Statute of Limitations: Lesser Standard Or Burden Does Not Apply To Other Elements
    257.9.4 Statute Of Limitations: Tolling From Failure Of Victim To Discover
    257.9.5 Statute Of Limitations As Jurisdictional Element
    257.9.6 Ex Post Facto Violation To Revive Time-Barred Prosecutions By Extension Of Statute Of Limitations
    257.9.7 Lack Of Notice As Defense Theory To Amended Charges Which Relate Back To Time-Barred Offense

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PRACTICE NOTE: See U.S. v. Edwards (11th Cir. 1992) 968 F2d 1148, 1153 [conflicting evidence as to when offense was completed required instruction on statute of limitations’ defense].

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    257.9.2    Reversible Error To Refuse Instruction On Statute Of Limitations As Defense Theory

PRACTICE NOTE: See U.S. v. Edwards (11th Cir. 1992) 968 F2d 1148, 1153.

RESEARCH NOTES:

Robinson, Criminal Law Defenses (West, 1984) (1999 Pocket Part) § 202. Wharton’s Criminal Law (15th Ed. 1993) §§ 92-96.

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    257.9.3    Statute Of Limitations: Lesser Standard Or Burden Does Not Apply To Other Elements

RATIONALE: When different standards of proof apply to different elements the jury may improperly apply the wrong standard. Therefore, the instructions should clearly specify which standards apply to which elements

POINTS AND AUTHORITIES: Many jurisdictions do not require proof beyond a reasonable doubt that the offense occurred within the statute of limitations. Some merely require the prosecution to prove this fact by a preponderance of the evidence (see e.g., People v. Zamora (CA 1976) 18 C3d 538, 565-66 [134 CR 784]), while others make the statute of limitations an affirmative defense which the defendant must prove by a preponderance of the evidence. (See e.g., State v. Figueroa (CT 1995) 665 A2d 63, 82-83 [statute of limitations is affirmative defense and burden is on defendant to prove elements of defense by a preponderance of the evidence].)

    However, the instructions must make clear that any different standard or burden used for the statute of limitations applies only to the statute of limitations and not to any of the other elements of the charge which must be proven by the prosecution beyond a reasonable doubt. (See e.g., In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

    The prosecution must prove that the offense was committed [within the statute of limitations] [prior to the date of _______] by a preponderance of the evidence. A preponderance of the evidence is ____________ (insert definition of preponderance of evidence).

    All other elements must be proven by the higher standard of proof beyond a reasonable doubt.

[Source: FORECITE National™.]

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RATIONALE: Special instruction may be necessary for the jury to understand that the statute of limitations begins running when the police or victim had notice of the suspicious circumstances.

POINTS AND AUTHORITIES: Generally, the statute of limitations begins running when the crime is completed and continues to run so long as either the police or victim were on notice that the crime was committed. (See People v. Bell (CA 1996) 45 CA4th 1030, 1066-67 [53 CR2d 156].) The California standard is whether the victim or police had actual notice of circumstances sufficient to raise suspicion and which would, through exercise of reasonable diligence, "might have" or "could have" led to discovery of the crime. (People v. Zamora (CA 1976) 18 C3d 538, 565-66, 571-72 [134 CR 784].) It is not necessary for the reasonable diligence of the victim or the police to have discovered the defendant's identity. Only discovery of the corpus delicti of the crime is necessary. (See Zamora, 18 C3d at 573.)

    Zamora also concluded that the California statutes require the prosecution to plead and prove a tolling of the statute. (Zamora, 18 C3d 564-65, fn 26.) This requires -- when any action is brought after the statute of limitations -- that the prosecution plead and prove: (1) when and how the facts concerning the fraud became known; (2) lack of knowledge prior to that time; (3) that he had no means of knowledge or notice which followed by inquiry would have shown at an earlier date the circumstances upon which the cause of action is founded. (Zamora, 18 C3d at 562.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

    The defendant may not be convicted of _________ (insert charged offense) if either the alleged victim or the criminal law enforcement authorities had actual notice of circumstances sufficient to make them suspicious of __________ (defendant) and which through the exercise of reasonable diligence would have led them to make inquiries which could have revealed evidence of the _______________________ (charged offense) [prior to the expiration of the statute of limitations] [prior to _____________ (insert date statute of limitations expired)].

[See People v. Zamora (CA 1976) 18 C3d 538, 565-66, 571-72 [134 CR 784]; see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.74 [Limitation Of Action–Fraud, Theft, Breech Of Fiduciary Duty, Official Misconduct] (West, 6th Ed. 1996).]

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PRACTICE NOTE: The statute of limitations in a criminal case is jurisdictional in nature and creates a bar to criminal prosecution. (Wharton’s Criminal Law (West, 15th ed. 1993) § 92, pp. 628-29.) Generally, a statute of limitations claim may be raised any time before or after judgment.  (Ibid.) The burden of proving that the prosecution was timely is on the prosecution. (Id. at 637; but see United States v. Ramirez (11th Cir. 2003) 324 F3d 1225 [when a statute-of-limitations defense is clear on the face of the indictment and requires no further development of facts at trial, defendant waives his right to that defense by failing to raise it in a pretrial motion].)

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PRACTICE NOTE: The United States Supreme Court has held that once a prosecution has been barred by a statute of limitations, a state may not reauthorize it by retroactively extending the limitations period. (Stogner v. California (2003) 539 US 607 [123 SCt 2446; 156 LEd2d 544].) The Court held that the Constitution’s prohibition of ex post facto laws forbids a law that "(1) permits resurrection of otherwise time-barred criminal prosecutions, and (2) was itself enacted after pre-existing limitations periods had expired."

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PRACTICE NOTE: "[I]f the allegations and charges are substantially the same in the old and new indictments, the assumption is that the defendant has been placed on notice of the charges against him. That is, he knows he will be called to account for certain activities and should prepare a defense." (United States v. Schmick (5th Cir. 1990) 904 F2d 936, 940.) Thus, when the facts alleged have not been changed, although additional details have been alleged, new charges brought outside the statute of limitations are timely. (State v. Chernotik (SD 2003) 671 NW2d 264.)