Statute of Limitations for Solicitation: Expert Defense Strategy

The statute of limitations in a criminal case is a procedural rule that bars prosecution after a specified period following the completion of the alleged crime, and the rule serves important functions including protecting defendants against the injustice of stale prosecutions in which witnesses' memories have faded, documentary evidence has been lost, and the defendant's ability to reconstruct a credible alibi has been severely compromised by the passage of time. Statute-of-limitations-for-solicitation and criminal-defense counsel can evaluate whether the applicable limitations period for the specific solicitation charge has expired, assess the date on which the limitations period began to run and whether any recognized exception has tolled the period, and advise on whether a statute of limitations defense is available and how to assert it most effectively.

The start date of the limitations period in a solicitation case is typically the date on which the last element of the offense was completed, and for a solicitation offense involving a series of related acts over a period of time, the courts must determine whether the entire course of conduct constitutes a single continuing offense whose period begins at the conclusion of the series, or whether each individual act is a separate offense with its own period beginning on the date of that act. Statute-of-limitations and criminal-evidence counsel can advise on the legal standards for calculating the start date of the limitations period in a solicitation case, assess whether the alleged offense constitutes a continuing crime or a single completed act for limitations purposes, and develop the legal argument for the limitations calculation that is most favorable to the defendant.

The most significant exception to the general rule that solicitation offenses are subject to a fixed limitations period is the exception for offenses committed against minor victims, and most states have enacted special statutes that either extend the limitations period for sexual offenses against minors to a period of years following the victim's eighteenth birthday, or eliminate the limitations period entirely for the most serious categories of child sexual exploitation offense. Online-child-sexual-exploitation and online-sex-crimes counsel can advise on the specific statutory exceptions that extend, suspend, or eliminate the limitations period in cases involving the solicitation of minors, assess whether the minor victim exception or the elimination of the limitations period for child sexual exploitation offenses applies to the specific charge, and develop the defense strategy for cases in which the normal limitations period may not provide a complete defense.

Most states impose a limitations period of two to three years for misdemeanor solicitation and a period of three to six years for felony solicitation, and federal solicitation charges under statutes such as the Mann Act or the PROTECT Act are subject to the five-year federal limitations period unless the victim is a minor, in which case the limitations period does not begin until the victim reaches the age of majority. Misdemeanor-criminal and federal-criminal-defense counsel can advise on the specific limitations period applicable to each level of solicitation charge under the applicable state and federal law, assess whether the charged conduct falls within the felony or misdemeanor category and the implications of that classification for the length of the limitations period, and develop the defense strategy most appropriate to the specific charge.

The table below compares the four most common situations that affect the running of the statute of limitations in a solicitation case and identifies the legal status of the limitations period, the legal consequence of each situation, and the defense strategy most appropriate to each.

Criminal-defense and criminal-complaint-defense counsel can advise on the specific circumstances under which the limitations period is tolled by the defendant's absence from the jurisdiction, assess whether the defendant's foreign residence satisfies the tolling provision under the applicable state law, and develop the legal argument for the limitations defense in cases where the defendant was present in the jurisdiction throughout the entire limitations period.

The indictment of a co-defendant can have severe and often unexpected consequences for the limitations period of an unindicted participant, because several states toll the limitations period for all members of a criminal conspiracy from the date of any co-conspirator's indictment, and the defendant who believed the limitations period had safely expired may discover that charges against a co-defendant have restarted the clock on their own potential prosecution. Criminal-appeals and statute-of-limitations counsel can advise on the legal effect of a co-defendant's indictment on the running of the limitations period for the defendant, assess whether the applicable state law provides that the co-defendant's indictment tolls the period for all participants, and develop the strategy for challenging the tolling argument when the defendant's individual limitations period had already expired before the co-defendant was indicted.

The defendant who wishes to raise the statute of limitations defense must file a motion to dismiss establishing that the limitations period began to run on a specific date, that the applicable period has elapsed, that no tolling exception applies, and that the indictment was filed after the expiration of the applicable period, and the defendant who presents this motion with supporting documentary evidence establishing each element is entitled to a dismissal without the need for a trial on the merits. Criminal-defense-consultation and post-conviction-relief counsel can advise on the evidentiary record required to establish the statute of limitations defense in a solicitation prosecution, assess whether the available evidence regarding the date of the alleged offense, the date of indictment, and any tolling provisions is sufficient to support a motion to dismiss on limitations grounds, and develop the litigation strategy for presenting the limitations defense most effectively.

The law firm's defense strategy in a solicitation case involving a statute of limitations issue begins with a forensic analysis of digital records, communication logs, financial transactions, and travel records to establish the precise date on which the alleged offense was completed, and extends through the preparation and presentation of the limitations defense, the suppression of stale evidence whose reliability has been compromised by the passage of time, and the appeal of any adverse limitations ruling. Statute-of-limitations-for-solicitation and sex-crime-defendants counsel can advise on the full range of legal strategies available to a person facing a solicitation charge based on allegedly past conduct, assess whether the statute of limitations, suppression of stale evidence, or other defenses provide the basis for a complete defense, and develop the integrated legal strategy that most effectively protects the defendant's rights and minimizes the risk of conviction.