Statute of Limitations

Statutes of limitations are legal deadlines for filing criminal charges. They are essential because:  

• Statutes of limitations are crucial in preserving evidence and ensuring a fair trial. As time passes, evidence can deteriorate, witnesses can forget details or become unavailable, and memories can become less reliable. This can significantly hinder the fairness of a trial, particularly for the defendant. The statutes of limitations help maintain this balance.  
• Statutes of limitations shield the defendant’s rights, providing a sense of security. It’s generally unjust to leave someone under the perpetual threat of prosecution. These statutes protect individuals from facing charges for actions long in the past when mounting a defense might be extremely challenging.
• Resource Management: Statutes of limitations play a crucial role in efficiently managing law enforcement and court resources. These institutions have limited resources, and prioritizing recent crimes helps them focus on cases with fresher evidence and more readily available witnesses.
• Public Interest: Statutes of limitations are not just about justice; they also consider the public interest. Allowing people to move on with their lives after a certain period, especially for less serious offenses, benefits society. This broader impact is an important aspect of these legal concepts.
• Serious crimes often have no statute of limitations. This includes offenses like murder, war crimes, and crimes against humanity.
• Statutes of limitations can be ‘tolled’ (paused) under certain circumstances. For instance, if the defendant flees the jurisdiction or if the crime is concealed, the statute of limitations may be extended. This means that the clock on the statute of limitations stops running during these periods, ensuring that the defendant cannot escape justice by simply waiting out the time limit.

The statute of limitations (SoL) in Article 43, UCMJ, limits the ability to prosecute specific charges at court-martial. While the general rule is five years, many offenses, such as sex offenses, have longer SoLs. For example:

• There is no SoL for AWOL in times of war, murder, rape, sexual assault, rape or sexual assault of a child, maiming of a child, kidnapping of a child, or any other offense punishable by death, or
• having committed a child abuse offense against a child and sworn charges and specifications are received during the life of the child or within ten years after the date on which the offense was committed, whichever provides a longer period.

It is important for military defense counsel to always check the SoL for each specification and make a motion to dismiss if appropriate. However, keep in mind several points (1) the SoL can be waived, usually as part of a pretrial agreement (PTA), or (2) can be waived or forfeited by defense counsel not making a timely motion to dismiss.

A common term in a PTA is that the accused will “waive all waivable” motions. The accused needs to understand how that bargaining chip works. And military judges have to be careful when that comes up. It is unclear what happened during the PTA discussions in Espejo. Espejo was charged with multiple sexual assaults of a child over time. He pleaded guilty with a PTA and was sentenced to 50 years confinement. The main issues were:

Statute of Limitations: There is no discussion during the trial or the PTA proceeding about the applicability of the SoL to one of the charges. It appears neither the defense and prosecution lawyers nor the judge realized there was an SoL problem with one of the specifications. Ergo, the military judge’s error in accepting a guilty plea to a charge outside the statute of limitations is a serious issue. Had the military judge asked the right questions, there’s possibly a valid waiver would have been identified and thus no issue on appeal. However, there was an error, and upon sentence reassessment, the confinement was reduced to 43 years.

Plea Agreement: The plea agreement contained language that violated the Appellant’s post-trial and appellate rights. Specifically, the language in question restricted the Appellant’s ability to appeal the case. This language was struck from the agreement. The court opinion reads as if this was the prosecution being creative in bargaining, which didn’t succeed.