Retroactive Statutes of Limitations (Part 1)

by | Aug 14, 2023 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On March 29, 2023, a three-judge appellate panel decided the Cape May County case of State v. Jerry Rosado. The principal issue under N.J.S.A. 2C:1-6 concerned whether the 2002 DNA-tolling amendment applied retroactively to a sexual assault that occurred in 1990.

Judge Gilson wrote for the panel in relevant part: This appeal presents a novel question: does the January 3, 2002 amendment to the criminal statute of limitations, N.J.S.A. 2C:1-6, apply to and toll the five-year limitations period in effect in 1990, when defendant allegedly committed a sexual assault? Our interpretations of N.J.S.A. 2C:1-6 and its amendments are reinforced by constitutional principles. It is well-settled that a statute should generally be construed to avoid a constitutional violation. State v. Carter (2021); State v. Burkert (2017). If the 2002 amendment to the criminal statute of limitations were interpreted to apply as the State argues, that application to defendant’s charge would violate his constitutional ex post facto rights.

A statute of limitations in a criminal case creates an “absolute bar” to prosecution. The State bears the burden of proving that the offense was committed within the prescribed limitations period. In other words, although the Legislature does not have to enact a statute of limitations, once it does, it has conferred a substantive right to potential defendants. See Stogner v. California (2003). Accordingly, the ex post facto clauses of the federal Constitution prohibit the federal government and states from enacting laws with certain retroactive effects. Ibid. (citing U.S. Const. art. I, § 9, cl. 3; id. § 10, cl. 1). The federal ex post facto clauses prevent the time for prosecution to be extended in any case where the pre-existing limitations period has already expired. Ibid. Accordingly, so does the ex post facto clause of the New Jersey Constitution. See State v. Perez (2015) (noting “New Jersey’s ex post facto jurisprudence follows the federal jurisprudence”).

The import of the last paragraph is that if the DNA-tolling statute were enacted in 1989, the defendant could be prosecuted. Since it was enacted in 2002, he cannot be prosecuted for the sexual assault.