Criminal Statutes of Limitations

Statutes of limitations establish time limits for charging defendants with a crime.

By , Attorney

Statutes of limitations establish time limits for starting criminal proceedings. Basically, these time limits are meant to prevent police and prosecutors from sitting on criminal charges for lengthy amounts of time. To promote fair trials and obtain justice, prosecutions are best conducted while memories are fresh and evidence and witnesses are still available, and defendants shouldn't be forced to defend old, stale allegations.

Read on to understand how criminal statutes of limitations work and what happens if the time limit passes. You can skip to criminal statutes of limitations in your state if you're in a hurry.

What Is a Statute of Limitations?

State and federal laws define and set statutes of limitations—time limits—for bringing both civil and criminal cases. In civil cases, the judge can throw out a lawsuit if a plaintiff waits too long to bring a case. The same holds true in criminal cases.

What Are Criminal Statutes of Limitations?

Once a crime occurs (or, sometimes, is discovered), the prosecutor only has a certain amount of time to file or press charges in the case. The actual time limit—whether it's one year or 20 years—generally varies by crime. Less serious crimes tend to have shorter limits, while prosecutors typically have more time to file more serious charges.

Do All Crimes Have Statutes of Limitations?

No. In many states, certain crimes don't have a statute of limitations, meaning the prosecutor can file these charges at any time, even if 20, 30, or more years have passed since the crime happened. These crimes tend to be murder, treason, and rape offenses. A few states have no statutes of limitations for any felony.

How Long Does the Prosecutor Have to File Criminal Charges?

So, how long after a crime is committed can someone be prosecuted? For most felonies, a prosecutor has several years (sometimes decades) to bring the case. Misdemeanor-level charges must generally be charged within a year or two.

Typical Statutes of Limitations in Criminal Cases

The time limits set in the law differ widely from one state to another. By way of example, here are some time limits suggested by the Model Penal Code:

  • murder charges: no time limit
  • felony charges: six years
  • misdemeanor charges: two years, and
  • petty misdemeanors and infractions: six months.

Some states follow the Model Penal Code's example and set only a few limitations periods. Other states' limitation periods are much more complicated. A state might have different time limits for crimes involving homicide, sexual assault, violence, fraud, official misconduct, theft, and more. They might also vary depending on the offense-level, evidence, victim's age, and other factors.

For instance, several states have enacted laws that extend time limits for crimes where DNA evidence is collected. So if the general time limit is six years for a felony, the law might allow the DA to file charges within nine years if DNA evidence was collected. Many states have special limitation periods that apply in child sex cases, recognizing that many child victims don't report crimes until they are older. A state law may allow a prosecutor to file charges in child sex cases up until the victim's 40th birthday or start the limitations period only after the victim reports the crime.

Can States Change Their Statutes of Limitations and Make Them Longer?

Yes and no. States change their laws all the time, including statutes of limitations. However, because of a constitutional provision (that prohibits ex post facto laws), states cannot give prosecutors extra time for crimes where the previous limitations period already expired. (Basically, the law can't revive a dead case.) But, if the time limit hasn't expired on a case, it's fair game.

Let's say the statute of limitations for theft in 2000 is five years. Joe steals a car in 2000, which means the prosecutor has until 2005 to file the criminal charges. In 2008, the state legislature changes the limitations period for theft to 10 years. This change doesn't apply to Joe's crime because the limitations period expired in 2005. Had the legislature made the change in 2001 (or anytime before 2005), the new 10-year limitations period would have applied to Joe.

When Does the Clock Start Running on Statutes of Limitations?

Statutes of limitations generally begin to "run" on the date that crimes are committed. So if a person steals a car on June 1, 2010, the clock starts ticking right then. But when a crime unfolds over a period of days, months, or even years, prosecutors and defense attorneys may have conflicting positions about when the clock started running against the time limit. In some cases, the clock might even pause temporarily and start up again (called "tolling").

Say Jane embezzles money from a client over a span of 10 years. For purposes of the statute of limitations, when did the crime(s) start—on day 1 or in year 10? Depending on the state's law, it might be neither: The law may say the clock starts ticking when the victim or authorities discovered or should have discovered the embezzlement. Now let's say Jane gets nervous about being caught and decides to move to another state for three years. Under most states' laws, her move out of state will pause the clock on the statute of limitations and only restart if Jane moves back to the state.

Continuing offenses (the embezzlement example) and absconding (the out-of-state move example) are just two scenarios of many that can impact the "running" or "tolling" of statutes of limitations. Again, these wrinkles in the rules make it a good idea to seek legal advice.

What Happens Once the Statute of Limitations Runs or Expires?

Although you might think that a prosecutor can't file charges once the time limit expires, that's not the case. If a prosecutor charges a "stale case," it may still proceed through the courts. It's up to the defendant to figure out whether the limitations period has indeed run and to raise the issue with the judge. Judges don't take it upon themselves to review cases for possible limitations problems. If the defendant is successful in the claim, the judge will typically dismiss the expired charges.

Complete Bar to Prosecution vs. Affirmative Defense

Some states treat the statute of limitations as a complete bar to jurisdiction, meaning the court doesn't have the authority to hear the matter. In these states, a defendant can't generally waive (give up) this right. If the defendant fails to raise the issue at trial, it can be raised later in an appeal or other challenge. Other states regard limitation periods as affirmative defenses that must be raised before or during trial. If the defense isn't timely raised, the defendant is considered to have waived it and any resulting conviction stands.

Who Decides If the Criminal Statute of Limitations Has Run?

Sometimes, the matter is clear cut. The defendant raises the issue and the judge dismisses the charges. But, as you can see from the information above, it's not always clear what time limit applies and when it started or, perhaps, paused. It's also possible that the prosecutor files multiple charges in a case and they all have different time limits.

If disagreement exists over the law, the judge will make the decision. When a factual dispute is in play, such as when the crime was discovered, the question may go to the jury to decide.

Getting Legal Help

If you have questions about the statute of limitations in a particular case, talk to a criminal defense attorney. The attorney can navigate the law and explain how it applies given the facts of the case.

Selected State-by-State Statutes of Limitations

Every state has detailed laws concerning which statute of limitations applies to various criminal offenses (the periods mentioned above in "Typical Statutes of Limitations" are only examples). Find your state below for information on your state's rules.

Keep in mind that in many instances, when the statute begins to run, when it ends, and whether it should be considered tolled (suspended) will not be addressed in the statutes—these are issues that lawyers raise and judges decide on a case-by-case basis.

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