No. 01-1757 Stogner v. California - FindLaw: Supreme Court Center

22
Although a statute of limitations provides a potential
bar to prosecution at a later date, it is “available” only to
the extent that, if the State fails to prosecute within a
specified period of time, the defendant may invoke it to
prevent his prosecution. The incipient nature of a statute
of limitations defense at the time the crime is committed
makes evident the fundamental difference in purpose and
effect between it and a defense of the type described in
Collins. A statute of limitations has no effect on the criminal
nature of an act; a person who is successful in asserting
a statute of limitations bar is just as much a criminal
as he or she was the day the act was committed. In contrast,
“pure” defenses, such as self-defense and heat of
passion, are available at the time the crime is committed.
Because they relate to an element of the defense, if successful
they transform what otherwise would have been a
criminal act into something that is not criminal or is of a
lesser criminal nature when applied to the defendant. 3
It is well-settled by both state and federal courts that
the statute of limitations may be extended during its term
without running afoul of the Ex Post Facto Clause. See
People v. Frazer, 21 Cal. 4th at 760-65 & n.25 (collecting
the burden of proof to the defendant to establish the statute of limitations
as a defense).
3
Likewise, the State could not retroactively abolish the defense of
mistaken identification. Identity, meaning the doing of the criminal act
by the defendant, is an essential element of any crime. United States v.
Garcia-Rosa, 876 F.2d 209, 224 n.12 (1st Cir. 1989); see United States v.
Danzey, 594 F.2d 905, 911-14 (2d Cir. 1979); e.g. People v. Hall, 28
Cal. 3d 143, 158-59, 616 P.2d 826 (1980). Petitioner is therefore wrong
in asserting that the State’s position would permit legislation that
retroactively abolishes that defense. (Pet. Br. 23-24)