28 July 2010
Statute of Limitations
There are, however, several exceptions to the general rule. To know if any of these exceptions apply, you really should seek the advice of an attorney that specializes in military law. Some of the more common exceptions are the following:
a) A person charged with absence without leave or missing movement during wartime, or with any offense punishable by death may be tried and punished at any time without limitation.
b) Another relatively new exception dealing with child-abuse cases is a result of a 2005 and 2007 amendment. Under these amendments, a person charged in a child abuse case may be tried at anytime through the life of the child-victim or for five years, whichever is longer. If the case arises from allegations before 24 November 2003, be sure to pay very close attention to whether the amendment applies and if so, how.
c) For continuing offenses, the date the offense is committed is considered to be the last day of the offense; note however, that absence without leave and desertion are not considered to be continuing offenses but rather to have occurred on the day the soldier absented himself. See United States v. Tunnell, 23 M.J. 110 (1986).
d) Periods in which the accused is absent without authority, fleeing from justice, absent from a territory in which the United States has power to apprehend him, in the custody of civil authorities, or in the hands of the enemy are excluded in computing the period of limitations under Article 43 UCMJ.
e) During wartime, the President has the power to extend the period of limitations for offenses for which it may be detrimental to national security to try during the period of hostilities. Similarly, Article 43(f) extends the statute of limitations for certain offenses committed during wartime.
f) Finally, other statutes may toll the statute limitation under Article 43. See, United States v. Doutry, 48 MJ 102 (1998).
In computing the statute of limitations, fractions of a day are excluded, and neither the date the offense was committed nor the date of receipt of charges by the summary court-martial convening authority are counted. Tunnell, 23 M.J. at 110. Additionally, a “year” is deemed to be a calendar year, not 365 days. Tunnell, 23 M.J. at 112.
Article 43 (g) provides that, if the charges or specifications are dismissed as defective or insufficient for any cause and the statute of limitations has run or will expire in the next 180 days, the government has 180 days from the date of dismissal to forward the new charges or specifications to the summary court-martial convening authority. A violation of the statute of limitations is not an absolute bar to try offenses. A motion to dismiss because of a violation of the statute of limitations is waived if it is not raised by the defense prior to adjournment R.C.M. 907(b)(2)(B). The waiver rule will not apply if the accused is unaware of his right to raise the statute of limitations and the military judge fails to inform the accused of his right to assert the statute. The requirement to inform the accused of this right also applies to guilty pleas. See United States v. Fahey, 33 M.J. 920 (A.C.M.R.1991).
Once the accused raises the issue of the statute of limitations, R.C.M. 905(c)(2)(B) places the burden of persuasion upon the government to show, by a preponderance of the evidence, that the limitations period has not elapsed.