The State’s position would require courts to take multiple leaps in the investigative chain to find that the tolling provision applies. Under the State’s interpretation, the tolling provision would apply even when the primary evidence used to support its prosecution of a defendant is not the DNA evidence but rather a statement by a third party. In Twiggs, for example, the DNA evidence connected a co-defendant to the crime who then implicated defendant Twiggs. Such evidence is the very kind of stale evidence the criminal statutes of limitations operate to guard against. Unlike when a perpetrator is identified by DNA evidence, a prosecution based solely on the word of another who is identified by DNA raises the precise jeopardy the statute is intended to avoid: the difficulties in mounting a defense when the basic facts have become obscured by time.
The statute of limitations is not intended to assist the State in its investigations; it is intended to protect a defendant’s ability to sustain his or her defense. Outside of the limitations period, a defendant faces a diminished ability to find alibi witnesses and evidence to defend against “basic facts [that] have become obscured by time.” Unlike other forms of evidence, DNA evidence can never become stale. DNA evidence has proven to be a reliable source of evidence linking a perpetrator to a crime. It logically flows that the DNA-tolling provision only tolls the statute of limitations when the State is in possession of the defendant’s DNA. We conclude that, for the DNA-tolling provision to apply, the State must have DNA evidence that establishes a direct link between physical evidence already within its possession and the defendant it seeks to prosecute.
The State’s proposed interpretation would allow gamesmanship to the detriment of the accused. For example, in a difficult to prove case, law enforcement could wait several years before bringing charges. With the passage of time, exculpatory witnesses, memories, and other evidence are lost while the DNA and case against the accused is preserved.