The Tolling of Statutes of Limitations (Part 5)

We now apply our analysis to the facts of these cases. In Jones, police obtained a DNA profile from skeletal remains that were unidentified until 2012. That year, based on Iyonna’s statements identifying Likisha and James as participants in her sister’s disappearance, police obtained and tested DNA samples from Iyonna and Kerse. Comparing Iyonna’s and Kerse’s DNA to the then-unidentified DNA profile, police established familial links with Jon-Niece’s remains. None of defendants’ DNA was found on the remains. With Iyonna’s corroborating statements and the familial link between and among the DNA profiles, a grand jury in 2013 returned an indictment charging defendants with substantive and conspiratorial offenses long after the expiration of the five-year statute of limitations.

The State attempts to salvage its case by applying the DNA-tolling exception through the uncovering of the victim Jon-Niece’s DNA from her remains and its indirect link to defendants. That is, according to the State, the DNA-tolling provision should apply because the State did not possess any link to Jon-Niece’s remains until 2012 when it acquired Iyonna’s and Kerse’s DNA.

As explained above, the DNA-tolling exception tolls the statute of limitations only when the State possesses DNA extracted from physical evidence that directly identifies the defendant. The DNA evidence obtained from the physical evidence in Jones — the remains — established no link beyond a familial connection to Iyonna and Kerse. That evidence certainly did not directly implicate defendants as perpetrators of the substantive crimes charged. The implication came only through third-party testimony, which N.J.S.A. 2C:1-6(c) does not operate to preserve.

We find the DNA-tolling exception inapplicable to the State’s substantive charges against Likisha and James. Without the exception, the statute of limitations expired, and the indictment as to those charges should have been dismissed.

Unfortunately for the defendants, the prosecution was not required to inform the grand jury of the statute of limitations issues. Prosecutors are only required to inform grand jurors of “clearly exculpatory” evidence, as opposed to procedural defenses.