John Doe Indictments in New York:
An Opportunity to Examine Statutes of Limitations

By SHERRY F. COLB
Wednesday, Aug. 13, 2003

Earlier this month, New York Mayor Michael R. Bloomberg announced the "John Doe Indictment Project." As part of this project, district attorneys in New York would issue indictments against culprits in the most serious unsolved sex crimes committed in the last ten years. The effort would be supported in part by a $350,000 grant from the U.S. Department of Justice.

The statute of limitations for felonies in New York State is ordinarily five years. When the identity of a suspect is unknown, however, then the statute is extended by an additional five. The identity of every one of the suspects to be indicted under the John Doe project remains unknown to the authorities at this time.

How can these men be indicted, you may ask, if prosecutors do not know who they are? Through their DNA. For each suspect who will be indicted, DNA evidence was recovered and tested after the assault in question.

By indicting suspects based on their DNA profiles, prosecutors intend to toll - that is, stop the clock on - the statute of limitations. As a result, if and when the DNA is matched to specific human beings - in one month, a decade, or fifty years - those human beings may stand trial for sexual assault.

Tolling the statute of limitations by indicting unknown suspects raises two important questions. First, are prosecutors undermining the purposes of the statute of limitations when they proceed in this manner? And second, if they are, is that a problem? The answer to the first question is yes. The answer to the second, depending as it does on the value one places on statutes of limitations, is a resounding "Maybe."

The Purposes of Statutes of Limitations

A statute of limitations is a window of time during which a lawsuit, or criminal charges, must either be initiated or forfeited. To prosecute you for criminal tax evasion, for example, the Internal Revenue Service (IRS) must identify a crime that you committed in the last six years. The IRS cannot, for example, charge you now with cheating on your taxes in 1990 or 1995, even if you did in fact cheat during those years. The statute of limitations thus represents a kind of expiration date for criminal (as well as civil) wrongs.

To understand the purposes behind statutes of limitations, consider a hypothetical example. Assume that you are a law-abiding citizen who does your best to pay whatever taxes you owe the government. Assume further that you do your own taxes and therefore worry that perhaps you, unwittingly, failed to pay everything you owe. In order to prove that you did the best you could, you retain records of your income and expenses and keep those records in shoeboxes behind your refrigerator.

If there were no statute of limitations on tax evasion, then the shoeboxes might eventually take over your kitchen. But because of the statute, you can dump a shoebox into the trash every year and thus maintain a stable dynamic equilibrium of six boxes.

One purpose of the statute of limitations is therefore to permit a potential suspect who is in fact innocent to relax and stop accumulating defensive evidence. Once the statute runs, it's over, and everyone can move on. The statute may also permit a guilty suspect to throw out the false affidavits he has been collecting, of course, but that is best described as an incidental benefit he receives rather than an objective of the statute of limitations.

Beyond the need to preserve evidence for a defense in case an accusation materializes, the statute of limitations also provides potential suspects with a sense of emotional or psychological repose. If you worry that perhaps your 1998 trip to Spain did not really qualify as a business expense for your dermatology practice, you are able to stop worrying in 2004, because you know that you may no longer be prosecuted for it, regardless of the merits.

If you do not make questionable tax decisions in the future, moreover, that sense of repose and peace can continue indefinitely. One might thus describe the statute of limitations as the law's version of turning over a new leaf. Potential mistakes (and worse) can be left in the past and forgotten.

The Costs of Statutes of Limitations: Lost Deterrence, and Missed Punishment

Statutes of limitations are not an unambiguous good. To the extent that the criminal law is supposed to deter criminal behavior, the possibility of repose can undermine that effect. If you are tempted to falsely declare your trip to Spain as a cost of practicing dermatology, for example, you might ask the following two questions: how much money will I save by evading taxes? And how likely am I to get away with this evasion?

If the IRS has only six years in which to audit your returns and discover your offense, then the likelihood of getting away with tax evasion is substantial. As a consequence, you are that much more likely to conclude that the risk of apprehension is worth taking.

In addition to reducing deterrence, it is also morally costly to discover a perpetrator and be powerless to punish him for his crime. In the case of a violent crime such as rape, as opposed to tax evasion, that cost seems especially great.

In the case of such a crime, moreover, the victim is unlikely to experience repose, no matter how much time has passed.

For the guilty rapist, in other words, we might not feel that he should be able to turn over a new leaf without paying for his crime, even though the police were unable to track him down within ten years.

Statutes of Limitations and Violent Crime

Though the injustice of permitting a rapist to get away with his crime may be greater than in the case of the successful tax evader, the need for a statute of limitations might be greater in such cases as well. Unlike the taxpayer and his kitchen full of shoeboxes, the accused rapist is unlikely to have proof that can be so easily boxed for later use in exonerating him at trial.

What the rape suspect, found through DNA, has - if anything - are the following sorts of evidence: a friend who remembers having spent the entire evening with him during the time of the rape; the woman who was dating him at the time and would testify that he was gentle and nonviolent; the victim's recollection that her rapist was much shorter than the man now on trial for the crime or the victim's recollection that she had consensual sex with a relative stranger - the suspect - prior to being raped by a different man. And finally, the suspect might have police witnesses who are willing to testify about mix-ups in the evidence lockers.

John Doe Rape Indictments: Are They Fair?

For prosecutors, indicting John Does through their DNA might seem more than fair. From their perspective, DNA does not lie and can cut through the fuzz of eye-witness testimonial accounts that are sometimes as flawed near the time of the crime as they are ten years later. (We have seen just how flawed they can be in recent years, when DNA has cleared numerous people who had been convicted of rape and even murder on the basis of eyewitness testimony by people who were sure the defendant was the perpetrator.)

For defendants and their attorneys, however, the passage of time can make an effective defense virtually impossible. And when DNA links a defendant and a victim, an effective defense could not be more crucial.

The friend who spent the evening with the suspect is likely to have no recollection of that evening ten years later, particularly if there was nothing special about the day for that witness. The woman who was dating the suspect at the time may be impossible to find after ten years and may, even if found, remember little about her former boyfriend, for good or ill. The victim's recollection of her rapist's appearance will have faded, along with any possibility that it could help exonerate the suspect. And the victim's memories of consensual sex with the suspect prior to the rape may also have faded, especially if time has affected the suspect's appearance. Finally, the passage of time will probably detrimentally affect police officers' recollections of any lapses in evidence storage.

The Fairness Concern For Serious Crimes

In some sense, the different considerations regarding statutes of limitations cut in opposite directions in rape cases. On the one hand, because the acts that took place are serious and extremely harmful, the need for justice is great, and the expiration of a time limit on prosecution accordingly unfortunate. Repose, moreover, is not necessarily something that we want to extend to people guilty of such heinous offenses. Furthermore, innocent people are unlikely to be worrying or anticipating that years from now, DNA will link them to a crime they did not commit and about which they might not even have heard.

The emotional and psychological factors in the New York indictments thus weigh against the whole notion of a statute of limitations, and therefore also against the idea of reading the law expansively to effectuate the purposes of such a statute by prohibiting DNA-only indictments.

On the other hand, fairness considerations weigh heavily in the other direction. In the rare case in which DNA evidence implicates an innocent man - because of poor evidence storage, because of multiple partners, or because of something more nefarious like a police frame-up - the passage of many years will make defense an almost hopeless proposition.

For those who ultimately prosecute the John Does who are now being indicted through DNA, the question will be how much time can pass before reasonable doubts that might once have existed will have vanished into thin air, without a trace.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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