Time Limits for Criminal Charges: What's the Statute of Limitations

When a crime is reported to the police, the police try to identify the person who committed the crime. Whenever possible the person is quickly identified, located and charged with the crime.

But sometimes there is a delay between when a crime is committed and when the person who committed the crime is identified or apprehended. The statute of limitations is a law that may prevent the prosecution of a crime if a criminal case is not filed within a specified time frame.


What is a Criminal Statute of Limitations

A criminal statute of limitations is a law that prevents the prosecution of older crimes, based upon the amount of time that has passed since the crime was committed. The statute defines a period of time after the commission of a criminal offense, during which the state must initiate a criminal charge. Once that deadline passes, the defense can seek dismissal of any charge that is filed by the state.

States did not pass statutes of limitations because they want people to get away with crimes. They created statutes of limitations out of a recognition that the passage of time makes it difficult to prosecute a case:

  • Witness memories of the events surrounding a crime will fade over time;
  • Some witnesses may be unavailable by the time a charge is filed or can be brought to trial;
  • With a delay in prosecution, evidence may be lost or destroyed

Thus, with the passage of time, it can be very difficult for the state to successfully prosecute a case. For the same reasons, it can also be very difficult for an defendant to prepare a defense to a criminal charge, and may be much harder for an innocent defendant to obtain evidence and testimony that would be required to defend against a charge.

When Does the Statute of Limitations Begin to Run

For most charges, the statute of limitations starts to run at the time a crime is committed. But that's not always the case. Possible exceptions include:

  • Sex offenses against minors: Some states recognize that victims of sex offenses may delay reporting a crime and, particularly for younger victims, may extend the statute of limitations to take that delay into consideration.
  • Fraudulent concealment: For some offenses, depending upon the laws of the jurisdiction where the prosecution occurs, it may be possible for the prosecutor to argue that the statute of limitations started to run at the time the victim recognized, or reasonably should have recognized that a crime occurred. For example, an accountant may be able to hide embezzlement by issuing false financial statements to clients, causing a significant delay in the detection of the crime.

Statute of Limitations for Misdemeanors

The statute of limitations for a misdemeanor crime can vary considerably by state. Many states impose limitations periods of a year or two for a misdemeanor charge, and may have an even shorter limitations period for a petty offense or infraction. Some states have a single statute of limitations that applies to all misdemeanors and most felonies.

As a practical matter, even if the statute of limitations allows a charge to proceed, if a misdemeanor prosecution has not been commenced within a year of the time a crime is reported it is highly unlikely that a prosecution will occur.

Statute of Limitations for Felonies

Most states have statutes of limitations for felony offenses, more serious offenses that can result in prison sentences. A few states don't have statutes of limitations for any felony offenses.

Every state has crimes for which no statute of limitations applies. Typically, no statute of limitations is available for offenses classified as capital offenses: crimes that carry a potential sentence of life in prison or the death penalty. Some states do not have statutes of limitations for offenses such as kidnapping or serious sex offenses involving minor victims. There is no statute of limitations for treason or for federal terrorism charges.

A typical state may have a six year statute of limitations for most felony offenses, but have a fourteen year statute of limitations for sex offenses involving minors, and no statute of limitations at all for murder charges.

Exceptions to the Statute of Limitations

In most states, it is possible for a criminal statute of limitations to be tolled or extended, or for a prosecutor to take action to ensure that a later charge may be filed even if the offender is not identified before the statute of limitations runs. Examples include:

  • Fugitives from Justice: If a defendant flees to another state or nation to avoid prosecution, the defendant's period of absence from the state may extend the statute of limitations.
  • John Doe Indictments: Under unusual circumstances, it may be possible for a prosecutor to charge a "John Doe" or unknown defendant for a crime, and to continue that prosecution against the person later identified to have committed the crime. For example, if a prosecutor has a DNA profile of an offender, the prosecutor might initiate a criminal charge against a John Doe defendant with that specific DNA profile, allowing the offender to be prosecuted based upon that prior indictment even if the statute of limitations would otherwise have run.
  • Agreement: Sometimes a criminal suspect will agree to extend the statute of limitations. Why would a suspect do that? If a prosecutor's further investigation might clear the suspect, but will file charges if no agreement is obtained, it can benefit the suspect to agree to extend the statute of limitations and allow the investigation to continue. Similarly, a  defendant who may be able to get a charge reduction or dismissal based upon cooperation with the prosecution may agree to extend the statute of limitations to avoid being immediately charged and prosecuted for a more serious offense.
  • Prior Law: Like any law, a statute of limitations may be changed. Sometimes a legislature will extend the statute of limitations for a crime. If the statute of limitations has not yet run for an offense under the prior law, the new, longer limitations period applies. However, if the time limit defined by the statute of limitations has already expired, even if that time limit is later extended the charge remains barred by the prior law.
  • Obtaining Evidence from a Foreign Country: In a federal prosecution, the prosecutor may petition to extend the statute of limitations for the time it takes to make and resolve an official request through a foreign court or authority to obtain evidence located in a foreign country.

Statute of Limitations vs. Speedy Trial Rights

Although the idea of a statute of limitations may seem similar to the concept of a speedy trial, there is an important distinction, specifically, when the right begins:

  • The statute of limitations requires that charges be filed within a specified period of time;
  • The right to a speedy trial requires that, once charges are filed, the defendant be brought to trial within a reasonable time.

That is to say, the statute of limitations applies before charges are filed, and stops running when charges are filed. It is at that time, when charges are filed against a defendant, that the defendant's speedy trial rights may be invoked.

Also, speedy trial rights arise from a constitutional right to a speedy trial, as set forth in the Sixth Amendment to the U.S. Constitution and as also reflected in many state constitutions. There is no constitutional requirement that a state pass a statute of limitations for a criminal offense.

Statute of Limitations vs. Due Process Rights

There is no constitutional right to a criminal statute of limitations, even for the least serious criminal offense. But that doesn't mean that the state has the unlimited right to bring start a criminal prosecution long after evidence is lost and memories have faded, and tell the defendant "tough luck for you". When the state does not initiate charges within a reasonable amount of time, the defendant may be able to obtain a dismissal of the charge based upon principles of Due Process.

A Due Process claim involves the assertion by a defendant that the prosecutor did not commence prosecution within a reasonable amount of time and that, as a result of the delay, the defendant's ability to present a defense is materially prejudiced -- that is, the ability to present a defense has been made more difficult as a result of the delay, to the degree that it has become unfair to place the defendant on trial. When asked to rule on a Due Process argument, a court will review all of the factors that the defense alleges to prejudice his or her ability to present a defense, and determine whether the prejudice is so severe that it is no longer fair to have the case proceed to trial.

The reasons why a delay in prosecution may unfairly prejudice a defendant are similar to the reasons to pass statutes of limitations in the first place. Witnesses may have their memories fade, become unavailable, or die before the case reaches court. Evidence may be lost or destroyed. The crime scene may have been dramatically altered since the time of the alleged offense, and may no longer exist.

In most cases, where a statute of limitations applies a court will find that it is consistent with Due Process to commence a prosecution within the statute of limitations. However it may be possible to raise a Due Process claim, if a prosecutor had the reasonable opportunity to bring charges at an earlier date and did not take action within a reasonable amount of time, and the defendant can show that the delay caused material prejudice.

Copyright © 2018 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 8, 2018.