Here is a report of an arrest of a suspect wanted for two rapes in Massachusetts in 1989. He is also being charged with robbery and auto theft--I am not sure of those dates. This goes to show in spite of whatever statute of limitations laws in MA, there ware provisions allowing for continued pursuit of suspects for a very long time.
As I said in my last post, sexual abuse especially of minors form a large proportion of the historical cases that make it into the law reports. I think most people would agree it's unrealistic to expect a 12-year-old who is being abused by a family member to promptly report the abuse to police. And more generally, it's now generally accepted in law that victims can take a long time to be emotionally and psychologically ready to report sexual assaults. I don't see any principled way of building a limitation period that accommodates all the realities of these situations, other than the general principle that a prosecution may only be brought if there is a reasonable prospect of conviction and the prosecution is in the public interest.
One of the reforms in response to recent sex abuse scandals is that in a lot of jurisdiction the "clock" on the statute of limitations for such crimes does not start until the alleged victim has reached the age of majority. At the very least this removes the burden of expecting a traumatized minor to navigate the criminal justice system.
And if the accused is presumed to be innocent, it's hardly fair to them to expect them to answer questions convincingly about something which, if they are innocent, they know nothing about and never happened.
Why should the accused facing historical charges be placed in a better position than any other accused on these two issues?
The point is not that a person should be in a better position in relation to historical charges, but that elapse of too much time puts them in a worse position.
An innocent person accused of having done something recently is much more likely to be able to bring evidence to rebut the allegations than an innocent person accused of having done something a long time ago, a time which will likely have no particular significance for them since they had done nothing. And that’s just considering the possibility of mistake. Limitation is also protection against a malicious prosecution where a deliberately false accusation is brought about long ago alleged events.
Some (many?) statutes of limitations do have provisions to allow application to the court to bring cases out of time where there are special circumstances justifying the delay, or justifying bringing the case in spite of the delay.
I take your point, though I don't think it was the point I was responding to. It seemed to me that Enoch was making arguments that proved too much.
I think there are probably both theoretical and practical problems with concept of special circumstances applications, both in the sense that they muddy the waters between the prosecution service and the Court (putting the Court in the position of having to authorize prosecutions) and also about what kind of evidence would have to be called on such an application. If you want time limitations to seems better to have clear rules, with the understanding that sometimes these rules mean that prosecutions will not be able to brought in cases where a prosecution is merited.
I think there are probably both theoretical and practical problems with concept of special circumstances applications, both in the sense that they muddy the waters between the prosecution service and the Court (putting the Court in the position of having to authorize prosecutions) and also about what kind of evidence would have to be called on such an application.
Does that really "muddy the waters between the prosecution service and the Court"? Courts routinely rule on the admissibility of evidence even in cases where the statute of limitations isn't a factor. They'll even sometimes pass summary judgments on whether some or all of a case can proceed, taking that bit of discretion out of a prosecutor's hands.
An innocent person accused of having done something recently is much more likely to be able to bring evidence to rebut the allegations than an innocent person accused of having done something a long time ago, a time which will likely have no particular significance for them since they had done nothing. And that’s just considering the possibility of mistake. Limitation is also protection against a malicious prosecution where a deliberately false accusation is brought about long ago alleged events.
Sorry to double-post but I want to at least highlight the danger of implicitly reversing the burden of proof in this line of reasoning. Of course it would be better if an innocent person could bring rock-solid evidence that they are innocent. But the whole point of the presumption of innocence and the criminal standard of proof if that the accused doesn't have to do this. I cannot easily imagine any realistic scenario where an accused is going to have to say (let alone prove) exactly where they were on this date 20 years to avoid being convicted of an offence. It may well be have been different however many years ago before the courts fully understood the frailties of eyewitness evidence. But in 2024 a trial where the Crown's case is based on 20 year old eyewitness evidence is not a case where the defence has to call evidence. Or at least it should be in a well-functioning criminal justice system.
As a side point, if there evidence about the circumstances of the allegation that would undermine its credibility or relability (e.g., that it was motivated by revenge), I think this would normally be evidence contemporaneous with the allegation and not evidence from the time of the alleged offence.
I suppose the bottom line for me is the limitation periods are blunt instruments and it may be better to ensure that the ordinary rules of criminal procedure are doing their job properly.
I think there are probably both theoretical and practical problems with concept of special circumstances applications, both in the sense that they muddy the waters between the prosecution service and the Court (putting the Court in the position of having to authorize prosecutions) and also about what kind of evidence would have to be called on such an application.
Does that really "muddy the waters between the prosecution service and the Court"? Courts routinely rule on the admissibility of evidence even in cases where the statute of limitations isn't a factor. They'll even sometimes pass summary judgments on whether some or all of a case can proceed, taking that bit of discretion out of a prosecutor's hands.
It depends on what the Court is being asked to rule on. At one extreme, the answer to the question whether the case has been brought within the limitation period is usually obvious and no one is going to litigate it. But the more the question becomes one of whether there is a reasonable prospect of conviction (RPC) and a public interest in proceeding, the more it looks like the Court is usurping the role of the prosecutor.
A ruling on admissibility of evidence is an ordinary part of criminal trial. Summary judgment motions have the curious feature that the test for getting past a summary judgment motion can be lower than the test for RPC. So it can be implicit in the results of summary judgment that the prosecution made the wrong call on RPC. Or it could be that the evidence didn't come out in the way the prosecution reasonably expected it might come out, or that the Court disagreed with the prosecution's view on some question of law where this was open to debate. And of course this is all happening after litigation, where the initial decision to prosecute is generally made before any litigation happens. (The prosecution's obligation to assess RPC is ongoing. It's rare that the prosecution changes its mind about RPC and abandons an entire prosecution in the middle of a trial before there is a ruling, but it can happen. It's not uncommon that the prosecution will have to concede at the end of the evidence that one or more specific counts were not proven beyond reasonable doubt.)
An innocent person accused of having done something recently is much more likely to be able to bring evidence to rebut the allegations than an innocent person accused of having done something a long time ago, a time which will likely have no particular significance for them since they had done nothing. And that’s just considering the possibility of mistake. Limitation is also protection against a malicious prosecution where a deliberately false accusation is brought about long ago alleged events.
Sorry to double-post but I want to at least highlight the danger of implicitly reversing the burden of proof in this line of reasoning. <snip>
I can see how it could be read this way. But if the prosecution (or plaintiff) fails to make a case to the required standard then it can be thrown out on the defendant’s application that there is no case to answer. If the prosecution has sufficient evidence to have a reasonable prospect of conviction, then the likelihood is that the defendant will want to bring countering evidence. If they are innocent, then a case brought a long time after the event in question will put them at a significant disadvantage.
I think there are probably both theoretical and practical problems with concept of special circumstances applications, both in the sense that they muddy the waters between the prosecution service and the Court (putting the Court in the position of having to authorize prosecutions) and also about what kind of evidence would have to be called on such an application.
Does that really "muddy the waters between the prosecution service and the Court"? Courts routinely rule on the admissibility of evidence even in cases where the statute of limitations isn't a factor. They'll even sometimes pass summary judgments on whether some or all of a case can proceed, taking that bit of discretion out of a prosecutor's hands.
It depends on what the Court is being asked to rule on. At one extreme, the answer to the question whether the case has been brought within the limitation period is usually obvious and no one is going to litigate it. But the more the question becomes one of whether there is a reasonable prospect of conviction (RPC) and a public interest in proceeding, the more it looks like the Court is usurping the role of the prosecutor. <snip>
In civil cases it is a fairly regular thing that a person may apply for permission to bring a claim out of time. I don’t know about prosecutions out of time in the UK.
The court wouldn’t be being asked to rule on reasonable prospect of conviction. The two main questions asked would be about whether there are justifiable reasons for the failure to bring the case in time, and how far the delay is likely to cause difficulty to the defence, and/or prevent a fair trial.
An innocent person accused of having done something recently is much more likely to be able to bring evidence to rebut the allegations than an innocent person accused of having done something a long time ago, a time which will likely have no particular significance for them since they had done nothing. And that’s just considering the possibility of mistake. Limitation is also protection against a malicious prosecution where a deliberately false accusation is brought about long ago alleged events.
Sorry to double-post but I want to at least highlight the danger of implicitly reversing the burden of proof in this line of reasoning. <snip>
I can see how it could be read this way. But if the prosecution (or plaintiff) fails to make a case to the required standard then it can be thrown out on the defendant’s application that there is no case to answer. If the prosecution has sufficient evidence to have a reasonable prospect of conviction, then the likelihood is that the defendant will want to bring countering evidence. If they are innocent, then a case brought a long time after the event in question will put them at a significant disadvantage.
I think there are probably both theoretical and practical problems with concept of special circumstances applications, both in the sense that they muddy the waters between the prosecution service and the Court (putting the Court in the position of having to authorize prosecutions) and also about what kind of evidence would have to be called on such an application.
Does that really "muddy the waters between the prosecution service and the Court"? Courts routinely rule on the admissibility of evidence even in cases where the statute of limitations isn't a factor. They'll even sometimes pass summary judgments on whether some or all of a case can proceed, taking that bit of discretion out of a prosecutor's hands.
It depends on what the Court is being asked to rule on. At one extreme, the answer to the question whether the case has been brought within the limitation period is usually obvious and no one is going to litigate it. But the more the question becomes one of whether there is a reasonable prospect of conviction (RPC) and a public interest in proceeding, the more it looks like the Court is usurping the role of the prosecutor. <snip>
In civil cases it is a fairly regular thing that a person may apply for permission to bring a claim out of time.
Really? That is not a thing at all where I am. A defendant can waive a statute of limitations defense by failing to assert it in an answer or motion to dismiss, but there is no mechanism for a plaintiff to apply for permission to bring an otherwise time-barred claim.
@BroJames we may have to agree to disagree but it seems to me you may still be approaching this with civil litigation assumptions about burden of proof. About half the time in Canadian criminal practice the defence calls no evidence and simply argues the Crown hasn’t met its burden - not on a summary dismissal application, but on the main trial. Even if the accused testifies, the quality of the evidence necessary to raise a reasonable doubt isn’t nearly equivalent to that needed to prove a case beyond reasonable doubt. And when assessing the accused’s evidence for a trial long after the offences were allegedly committed the judge or jury will have to do so on the basis that the accused is presumed innocent and to have no particular reason to remember in detail whatever happened 10 or 20 years ago.
The thing that has me more concerned about the possible effect of the passage of time is the loss of independent evidence (e.g., documents) that could be relevant to the accused’s defence. An accused can ask that their prosecution be stayed (i.e., discontinued by the Court) if police negligently lose evidence. Although loss of evidence through passage of time may be nobody’s fault it may be possible to adapt some principles - AIUI usually these applications are decided at the end of the trial where the actual effect of the missing evidence on the fairness of the trial is easier to assess.
Yes @Marsupial, I’m probably thinking of really quite marginal cases and “hard cases make bad law“.
As it is I live in a jurisdiction which for the most part does not have limitations on criminal prosecutions. And I’m not concerned to change that, nor would I campaign to change that.
My experience of criminal law is quite limited (compared to my civil litigation experience) but I think, in this jurisdiction, the application of the usual rules about burden of proof and standard of proof does in practice provide adequate protection in relation to the possibility of a prosecution arising from events long ago.
Comments
One of the reforms in response to recent sex abuse scandals is that in a lot of jurisdiction the "clock" on the statute of limitations for such crimes does not start until the alleged victim has reached the age of majority. At the very least this removes the burden of expecting a traumatized minor to navigate the criminal justice system.
This is pretty much always the case in jurisdictions that have statutes of limitations.
I take your point, though I don't think it was the point I was responding to. It seemed to me that Enoch was making arguments that proved too much.
I think there are probably both theoretical and practical problems with concept of special circumstances applications, both in the sense that they muddy the waters between the prosecution service and the Court (putting the Court in the position of having to authorize prosecutions) and also about what kind of evidence would have to be called on such an application. If you want time limitations to seems better to have clear rules, with the understanding that sometimes these rules mean that prosecutions will not be able to brought in cases where a prosecution is merited.
Does that really "muddy the waters between the prosecution service and the Court"? Courts routinely rule on the admissibility of evidence even in cases where the statute of limitations isn't a factor. They'll even sometimes pass summary judgments on whether some or all of a case can proceed, taking that bit of discretion out of a prosecutor's hands.
Sorry to double-post but I want to at least highlight the danger of implicitly reversing the burden of proof in this line of reasoning. Of course it would be better if an innocent person could bring rock-solid evidence that they are innocent. But the whole point of the presumption of innocence and the criminal standard of proof if that the accused doesn't have to do this. I cannot easily imagine any realistic scenario where an accused is going to have to say (let alone prove) exactly where they were on this date 20 years to avoid being convicted of an offence. It may well be have been different however many years ago before the courts fully understood the frailties of eyewitness evidence. But in 2024 a trial where the Crown's case is based on 20 year old eyewitness evidence is not a case where the defence has to call evidence. Or at least it should be in a well-functioning criminal justice system.
As a side point, if there evidence about the circumstances of the allegation that would undermine its credibility or relability (e.g., that it was motivated by revenge), I think this would normally be evidence contemporaneous with the allegation and not evidence from the time of the alleged offence.
I suppose the bottom line for me is the limitation periods are blunt instruments and it may be better to ensure that the ordinary rules of criminal procedure are doing their job properly.
It depends on what the Court is being asked to rule on. At one extreme, the answer to the question whether the case has been brought within the limitation period is usually obvious and no one is going to litigate it. But the more the question becomes one of whether there is a reasonable prospect of conviction (RPC) and a public interest in proceeding, the more it looks like the Court is usurping the role of the prosecutor.
A ruling on admissibility of evidence is an ordinary part of criminal trial. Summary judgment motions have the curious feature that the test for getting past a summary judgment motion can be lower than the test for RPC. So it can be implicit in the results of summary judgment that the prosecution made the wrong call on RPC. Or it could be that the evidence didn't come out in the way the prosecution reasonably expected it might come out, or that the Court disagreed with the prosecution's view on some question of law where this was open to debate. And of course this is all happening after litigation, where the initial decision to prosecute is generally made before any litigation happens. (The prosecution's obligation to assess RPC is ongoing. It's rare that the prosecution changes its mind about RPC and abandons an entire prosecution in the middle of a trial before there is a ruling, but it can happen. It's not uncommon that the prosecution will have to concede at the end of the evidence that one or more specific counts were not proven beyond reasonable doubt.)
I can see how it could be read this way. But if the prosecution (or plaintiff) fails to make a case to the required standard then it can be thrown out on the defendant’s application that there is no case to answer. If the prosecution has sufficient evidence to have a reasonable prospect of conviction, then the likelihood is that the defendant will want to bring countering evidence. If they are innocent, then a case brought a long time after the event in question will put them at a significant disadvantage.
In civil cases it is a fairly regular thing that a person may apply for permission to bring a claim out of time. I don’t know about prosecutions out of time in the UK.
The court wouldn’t be being asked to rule on reasonable prospect of conviction. The two main questions asked would be about whether there are justifiable reasons for the failure to bring the case in time, and how far the delay is likely to cause difficulty to the defence, and/or prevent a fair trial.
The thing that has me more concerned about the possible effect of the passage of time is the loss of independent evidence (e.g., documents) that could be relevant to the accused’s defence. An accused can ask that their prosecution be stayed (i.e., discontinued by the Court) if police negligently lose evidence. Although loss of evidence through passage of time may be nobody’s fault it may be possible to adapt some principles - AIUI usually these applications are decided at the end of the trial where the actual effect of the missing evidence on the fairness of the trial is easier to assess.
As it is I live in a jurisdiction which for the most part does not have limitations on criminal prosecutions. And I’m not concerned to change that, nor would I campaign to change that.
My experience of criminal law is quite limited (compared to my civil litigation experience) but I think, in this jurisdiction, the application of the usual rules about burden of proof and standard of proof does in practice provide adequate protection in relation to the possibility of a prosecution arising from events long ago.