701-108 Time limitations. (1) A prosecution for murder, murder in the first and second degrees, attempted murder, and attempted murder in the first and second degrees, criminal conspiracy to commit murder in any degree, criminal solicitation to commit murder in any degree, sexual assault in the first and second degrees, and continuous sexual assault of a minor under the age of fourteen years may be commenced at any time.

(2) Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:

(a) A prosecution for manslaughter where the death was not caused by the operation of a motor vehicle must be commenced within ten years after it is committed;

(b) A prosecution for a class A felony must be commenced within six years after it is committed;

(c) A prosecution for any felony under part IX of chapter 708 must be commenced within five years after it is committed;

(d) A prosecution for any other felony must be commenced within three years after it is committed;

(e) A prosecution for a misdemeanor or parking violation must be commenced within two years after it is committed; and

(f) A prosecution for a petty misdemeanor or a violation other than a parking violation must be commenced within one year after it is committed.

(3) If the period prescribed in subsection (2) has expired, a prosecution may nevertheless be commenced for:

(a) Any offense an element of which is either fraud, deception, as defined in section 708-800, or a breach of fiduciary obligation within three years after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is oneself not a party to the offense, but in no case shall this provision extend the period of limitation by more than six years from the expiration of the period of limitation prescribed in subsection (2);

(b) Any offense based on misconduct in office by a public officer or employee at any time when the defendant is in public office or employment or within two years thereafter, but in no case shall this provision extend the period of limitation by more than three years from the expiration of the period of limitation prescribed in subsection (2); and

(c) Any felony offense involving evidence containing deoxyribonucleic acid from the offender, if a test confirming the presence of deoxyribonucleic acid is performed prior to expiration of the period of limitation prescribed in subsection (2), but in no case shall this provision extend the period of limitation by more than ten years from the expiration of the period of limitation prescribed in subsection (2).

(4) An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated. Time starts to run on the day after the offense is committed.

(5) A prosecution is commenced either when an indictment is found or a complaint filed, or when an arrest warrant or other process is issued, provided that such warrant or process is executed without unreasonable delay.

(6) The period of limitation does not run:

(a) During any time when the accused is continuously absent from the State or has no reasonably ascertainable place of abode or work within the State, but in no case shall this provision extend the period of limitation by more than four years from the expiration of the period of limitation prescribed in subsection (2);

(b) During any time when a prosecution against the accused for the same conduct is pending in this State; or

(c) For any felony offense under chapter 707, part V or VI, during any time when the victim is alive and under eighteen years of age. [L 1972, c 9, pt of 1; am L 1974, c 93, 1; am L 1982, c 28, 2; am L 1983, c 63, 1; am L 1986, c 296, 1; am L 1987, c 181, 2; am L 1993, c 186, 1; gen ch 1993; am L 1995, c 171, 1; am L 1996, c 148, 1; am L 1997, c 149, 1; am L 2001, c 33, 2; am L 2005, c 112, 2; am L 2006, c 99, 1; am L 2014, c 113, 1]

 

Cross References

 

Elements of an offense, see 702-205.

 

COMMENTARY ON 701-108

 

Several important policies underlie the proposed statute of limitations. The most persuasive is the fact that after a certain time, evidence tending to prove or disprove criminal liability becomes stale. Witnesses die, move away, or forget; physical evidence disintegrates, and it becomes impossible to ascertain what actually happened. Statutes of limitations may also be viewed as statutes of repose. Even a person who has committed a penal act is entitled, after the passage of some time, to conduct the person's affairs on the assumption that they will not be disrupted by a prosecution. This is particularly true in the case of someone who has ceased to engage in penal activity and is leading a law-abiding life. These policies explain why, even when a time limitation is extended by one of the provisions in this section, an upper limit is set.

Subsection (1) follows previous Hawaii law in providing no time limitation on murder.[1] Here, the community's justifiable desire to require the murderer to pay for the murderer's act outweighs the policies discussed above.

Subsection (2) represents a change in the prior law. The limitation period was two years, but there were many statutory exceptions:

No person shall be prosecuted for any offense under the laws of the State, except murder in the first and second degrees, manslaughter, rape, assault with intent to ravish, carnal abuse of a minor under the age of twelve years, kidnapping, arson in the first and second degrees, burglary in the first and second degrees, forgery, robbery in the first and second degrees, larceny in the first degree, giving, promising or receiving a bribe, extortion in the first and second degrees, compounding an offense punishable by imprisonment for life, and embezzlement, unless the prosecution for the offense is commenced within two years next after the commission thereof. Nothing herein contained shall bar any prosecution against any person who flees from justice, or absents himself from the State, or so secretes himself that he cannot be found by the officers of the law, so that process cannot be served upon him.[2]

In accord with the policies articulated above, subsection (2) sets more realistic time limitations than prior law. For the most serious class of felonies, other than murder, a six-year period is set, while for the other classes of felonies, three years is deemed sufficient. Consistent with prior law, a two-year period is set for misdemeanors. Prosecution for petty misdemeanors and violations must be commenced within one year.

Subsection (3) seeks to identify situations in which the statute of limitations ought to be tolled. In the cases of fraud, breach of fiduciary obligation, and misconduct in public office, the difficulties of detecting the offense suggest that an extension of the normal time is required. Thus, in the case of fraud and breach of fiduciary obligation, a prosecution may be commenced within one year after discovery, and a prosecution for offenses relating to misconduct in office may be commenced at any time when the defendant is in public office, or within two years thereafter. In both cases, however, the applicable time limitation may not be extended by more than three years.

Subsection (4) defines the time at which an offense is to be considered as committed, and subsection (5) defines the time at which a prosecution is commenced. Subsection (6) tolls the statute of limitations for the period when the accused is continuously absent from the State or has no reasonably ascertainable place of abode therein. This continues the previous law. Note, however, that again the time period may not be extended by more than three years. This seems fair in light of procedures available for extradition. Subsection (6) also declares that the statute of limitations does not run during any time when a prosecution based on the same conduct is pending against the accused. This prevents any claim that the statute has run preventing retrial after reversal on appeal or dismissal for some reason which would not make retrial a matter of double jeopardy.

 

SUPPLEMENTAL COMMENTARY ON 701-108

 

Act 93, Session Laws 1974, amended subsection (2)(c) to include within the two-year time limitation period the commencement of a prosecution for a parking violation.

Act 28, Session Laws 1982, deleted from subsection (2), the reference to 707-740, a section repealed by Act 213, Session Laws 1981.

Act 63, Session Laws 1983, amended subsection (5) to allow prosecution to commence by the filing of a complaint, thereby conforming the section to the 1982 amendment to article I, 10 of the Hawaii State Constitution and to the procedure adopted by the state supreme court, which made the complaint the charging document following a preliminary hearing. Senate Standing Committee Report No. 349, House Standing Committee Report No. 757.

Act 296, Session Laws 1986, increased the limitations period from one to two years after discovery for offenses involving fraud or breach of fiduciary duty. Those cases are difficult to prosecute because misleading or fraudulent bookkeeping and records often hide criminal wrongdoing. The extended limitations period allows authorities more time to collect and analyze those records and documents to determine the nature and extent of criminal activity. Senate Standing Committee Report No. 1084-86.

Act 181, Session Laws 1987, added language to this section to reflect the recently created statutory murder and attempted murder crimes. These crimes are murder in the first and second degree and attempted murder in the first and second degree. Senate Standing Committee Report No. 1130.

Act 186, Session Laws 1993, amended this section to provide for a nonvehicular manslaughter limitations period of ten years. Conference Committee Report No. 67.

Act 171, Session Laws 1995, amended subsection (6) to toll the statute of limitations for bringing a prosecution regarding sexual offenses or child abuse during the time the victim is alive and less than eighteen years of age. The extension of the statute of limitations recognized that child victims may be unable to report crimes to law enforcement within the existing statute of limitations time period. House Standing Committee Report No. 693, Senate Standing Committee Report No. 1205.

Act 148, Session Laws 1996, increased the limitations period for offenses involving fraud or a breach of fiduciary obligation from two to three years after discovery of the offense. The legislature recognized that these complex crimes can take years to uncover, investigate and prove, and can involve numerous victims and large losses. The Act also clarified language relating to the extension of the statute of limitations for offenses involving fraud or a breach of fiduciary obligation, offenses based on misconduct in office by a public officer or employee, and cases in which the accused is continuously absent from the State or has no reasonably ascertainable place of abode or work within the State, by stating that the extensions shall begin from the expiration of the period of limitation prescribed in subsection (2). House Standing Committee Report No. 1015-96, Senate Standing Committee Report No. 2030.

Act 149, Session Laws 1997, amended subsection (1) to include criminal conspiracy to commit murder and criminal solicitation to commit murder as offenses for which prosecution may be commenced at any time. The legislature found that the offense of murder warranted punishment under the Code sufficient to fit the grave consequences of the crime, and that persons found guilty of conspiracy or solicitation to commit murder should also be penalized to a similarly serious degree. Senate Standing Committee Report No. 1600.

Act 33, Session Laws 2001, strengthened the State's computer crime laws by, among other things, setting the statute of limitations for [felony] computer-related crimes to within five years after the crime was committed. The legislature found that society was adopting at a rapid pace, computer technology to conduct activities of daily living. Computer technology was being utilized not only for purposes of business and recreation, but also for criminal activity. Thus, computer-related criminal activity was on the rise as society's dependence on computers increased. Senate Standing Committee Report No. 1508.

Act 112, Session Laws 2005, amended this section by extending the statute of limitations for felony cases where deoxyribonucleic acid evidence has been recovered. Conference Committee Report No. 184.

Act 99, Session Laws 2006, added crimes that include deception as an element to the group of offenses for which the date of discovery is used to calculate the time limitations within which the crime must be charged. Senate Standing Committee Report No. 2244, House Standing Committee Report No. 1119-06.

Act 113, Session Laws 2014, eliminated the statute of limitations for a criminal prosecution of sexual assault in the first or second degree, and continuous sexual assault of a minor under the age of fourteen years. The legislature found that child sexual abuse is an epidemic that unfortunately is not adequately addressed because a vast majority of child sexual abuse victims fail to report their sexual assaults to authorities. Studies have estimated that between sixty to eighty per cent of child sexual abuse victims withhold disclosure. Furthermore, studies examining latency in disclosure report an average delay of three to eighteen years. By eliminating the statute of limitations for criminal actions for claims arising from certain sexual assault crimes, Act 113 recognized and provided the time it generally takes for victims of child sexual abuse to develop the strength and courage to report incidences of child sexual abuse. Conference Committee Report No. 57-14, Senate Standing Committee Report No. 3321.

 

Case Notes

 

Date of the most recent act of a continuing offense governs application of statute of limitations. 62 H. 364, 616 P.2d 193 (1980).

Statute of limitations of prior law held applicable to defendant absent from State. 62 H. 474, 617 P.2d 84 (1980).

Subsection (6)(a) does not apply as a "defense" for purposes of 701-101(2). 62 H. 474, 617 P.2d 84 (1980).

Under subsection (4), an offense of a continuing nature such as the possession of mace is committed when the course of conduct is terminated. 63 H. 345, 627 P.2d 776 (1981).

Subsection (5) does not define when adversary criminal judicial proceedings commence for purpose of determining when the Sixth Amendment right to counsel attaches. 63 H. 354, 628 P.2d 1018 (1981).

Court correctly concluded that statute of limitations for conspiracy to commit murder is three years (under 1993 version of this section). 84 H. 280, 933 P.2d 617 (1997).

Where defendant entered no contest plea knowingly and voluntarily, defendant effectively waived the statute of limitations upon entry of plea. 103 H. 214, 81 P.3d 394 (2003).

For purposes of the tolling provisions of subsection (3)(a), the fraudulent component of 708-830(2) is the use of deception in the taking of property. 111 H. 17, 137 P.3d 331 (2006).

When the charged offense is theft by deception, as defined by 708-830(2), and the prosecution is relying on the tolling provision of subsection (3)(a), relating to "any offense an element of which is fraud", the prosecution must not only allege the timely date or dates of commission of the offense in the indictment, but also the earliest date of the "discovery of the offense by an aggrieved party or a person who has a legal duty to represent the aggrieved party"; where indictment failed to aver the date of the earliest discovery of the alleged offenses, trial court order dismissing the indictment with prejudice affirmed. 111 H. 17, 137 P.3d 331 (2006).

 

__________

701-108 Commentary:

 

1. H.R.S. 707-1.

 

2. Id.

 

 

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