Often enough, an accused is confronted with an arrest warrant for an offense that “happened years ago.” Usually, it happens during a traffic stop when the officer informs the driver that “he is going to have to take him in on a warrant.”
Can the government really proceed with an arrest, prosecution and conviction for conduct that happened long ago, and without formal notice or arrest of the accused within a reasonable amount of time?
Statute Of Limitations
Be mindful, that we are not describing an offense that is so old that the statute of limitations has expired. However, sometimes even when the state beats the statute of limitations clock an accused may move forward and win on a motion to dismiss for prosecutorial delay.
Dismissal May Be Appropriate
In some circumstances, when the State fails to arrest; notify; or advance a criminal case promptly a defendant may successfully move the trial court for a dismissal of the charges. What I want to do here is describe the legal standard that a court will apply.
When Exactly Were The Charges Brought?
First, we must determine exactly when the accused was formerly charged.
Ordinarily, this is not a complicated endeavor. Most charging instruments are printed or stamped with the dates they were formerly filed with the court. This date serves as a clear dividing line between the two types of legal standards that will be described in this analysis.
Was It A Misdemeanor or Felony Offense?
Distinguishing between misdemeanor and felony offenses becomes critically important when determining the date that an individual has been legally charged with a crime.
When Felony Cases Start
Thus, a felony charge only official begins after a grand jury is convened and signs a true bill for charges. When this happens, we say that “an indictment has been handed down”or that a person has been “indicted”. A felony charge can also formally begin when witnesses testify in front of a judge, usually a police person. This is called a preliminary hearing, and we say that that the judge issues an “information.”
When Misdemeanor Cases Start
Misdemeanor charges may begin with same process outlined above or with a complaint. A complaint is simply a charging instrument that is verified and signed by a police officer or complaining victim.
No other formal hearing in court or any other procedure before a grand jury is required.
Warrant For Arrest With No Accompanying Charge
Police departments are quite fond of issuing a complaint and an arrest warrant for an individual and leaving it “on the books” until the individual is arrested.
Usually, the arrest is by happenstance the next time the person is involved in a traffic stop or encounters police who identify him. It must be understood that a “felony” complaint is not an authorized charging instrument and in Illinois does not officially start a criminal prosecution.
The Right To A Speedy Trial
Now then, let’s move on to the two independent legal doctrines are at play when we discuss prosecutorial delays in a criminal prosecution.
“The right to a speedy trial guaranteed by the sixth amendment (U.S. Const., amend.VI) applies only within ‘the confines of a formal criminal prosecution,’ that is, once a defendant has been arrested or charged. The constitutional guarantee of due process, which protects a criminal defendant against proceedings that are fundamentally unfair in some manner, applies more broadly, applying even outside of the criminal prosecution itself.”
People v. Totzke, 974 N.E.2d 408, 412 (2nd Dist. 2012) (implying due process claims are justified even before a criminal prosecution begins); quoting Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).
Counting Your Days
Once the date of the formal charging instrument is known, the relevant time periods immerge.
Specifically, the time period between the alleged criminal conduct, “the crime”, and the filing of official charges is one time frame that can be scrutinized for undue delay. The time period between the filing of official charges and the actual arrest or trial of the accused can also be judged and critically analyzed for undue prosecutorial delay.
Delay Between The Crime And The Filing of Charges (The Lawson Rule)
When there is significant prosecutorial delay between the crime and the filing of the charges, an individual still has due process rights that must be respected. However, courts will not easily grant a motion to dismiss the charges under due process claims. The standard is described this way:
This Lawson Rule creates a difficult standard that must be overcome before one can win a dismissal due to this delay. It begins with an absolute requirement that the Defendant demonstrate to the court that he has experienced “substantial prejudice” due to the delay. Like the name implies, no ordinary prejudice will do. In fact, the court specifically indicates the Defendant’s loss of memory or inability to recall the circumstances of the alleged crime does not constitute “substantial prejudice.”
Usually, substantial prejudice means the death of witnesses or the loss of substantial jail credits.
If and only if the Defendant can demonstrate this “substantial prejudice”, the State is then allowed to explain to the court why there was a delay in filing the charges. The State must demonstrate to the judge that their delay was reasonable. If the State can provide a “reasonable” explanation for the delay the court then must balance the “substantial prejudice” with the “reasonable” explanation that was provided.
It’s up to the judge at this point, but in a tie a court usually leans towards denying the motion to dismiss.
Delay Between Filing Of Charges And Defendant’s Arrest (The Baker Rule)
In the time period after formal charges have been filed and before the defendant is arrested or brought to trial, the court will apply a different standard in determining whether to grant a motion to dismiss due to prosecutorial delay.
The standard under these circumstances is called The Barker Rule. Under The Barker, four factors are considered when determining whether a defendant’s constitutional right to a speedy trial has been violated:
(1) The length of the delay
(2) The reasons for the delay
(3) The defendant’s assertion of his or her right and
(4) The prejudice to the defendant as a result of the delay.
The threshold question is whether the delay is presumptively prejudicial. If the length of the delay is presumptively prejudicial, the court should balance the remaining three factors.
People v. Totzke, 974 N.E.2d 408, 415, 362 Ill. Dec 887 (2nd Dist. 2012); citing Silver, 376 Ill.App.3d at 783-84, 315 Ill.Dec. 609, 877 N.E.2d 96; see also Doggett, 505 U.S. at 651, 112 S.Ct. 2686.
Presumptive Prejudice May Exist
When the court is describing “presumptive prejudice” it is essentially talking about the length of time where one is able to assume that an accused has been prejudiced due to the large amount of time before they were arrested or brought to trial.
When we reach this minimum amount of time, then it is said that we have reached “presumptive prejudice”. Even when an individual has reached “presumptive prejudice” before his arrest, the court still conducts the analysis of The Baker Rule. The court must still determine the reason for the delay, whether or not the defendant asserted his right to a speedy trial, and finally whether or not there really was actual prejudice.
“For the purpose of the first prong of the Barker test, one year is the generally recognized dividing point between ordinary and presumptively prejudicial delay.” Totzke, 974. N.E.2d at 416; citing People v. Singleton, 278 Ill.App.3d 296, 299, 214 Ill.Dec. 1014, 662 N.E.2d 580 (1996).
Second Baker Factor
In regards to the second factor, the State’s reason for the delay, courts are less forgiven to the government.
“The State must bear the blame where its failure to seek an indicted person arises from its own faulty police procedure, negligence or incompetence.” People v. Singleton, 278 Ill.App.3d 296, 662 N.E.2d 580, 582, 583 (1st Dist. 1996); citing Doggett, 505 U.S. at 652-53, 112 S.Ct. at 2691. Obviously, if the reason for the delay is that the accused absconded or became a fugitive of justice with active measures to evade law enforcement all claims of violations of constitutional speedy trial rights are forfeited.
Third Baker Factor
In the third Barker factor, “the failure of the defendant to request a speedy trial is ordinarily weighed heavily against the defendant.” Singleton 662 N.E.2d at 583, quoting Prince, 242 Ill. App.3d at 1009, 183 Ill.Dec. 252, 611 N.E.2d 105. “However, the third factor is irrelevant ‘where the defendant did not know about the charges against him.’” Singleton, 662 N.E. 2d at 583; quoting People v. Chambers, 258 Ill.App.3d 73, 80, 196 Ill.Dec. 61, 629 N.E.2d 606 (1994).
Fourth Baker Factor
The fourth factor in the Baker inquiry is also part of the threshold determination of “presumptive prejudice.”
However, it still must be considered as an individual factor. When actual prejudice to the accused exists, the balance tips more strongly towards a dismissal. When a defendant has not not made a claim for “presumptive prejudice” because he has not reached a year between crime and arrest, then actual prejudice becomes a necessary and required factor that the accused must make in order to be granted a dismissal.
In regards to the requirement of showing actual prejudice courts have noted that:
The Supreme Court in Doggett found that “affirmative proof of particularized prejudice is not essential to every speedy trial claim. [W]e generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay.” Protracted delay can make it unnecessary for a defendant to show actual prejudice. However, where the delay is less than one year a more particularized showing of prejudice must be shown.
Singleton 662 N.E. 2d at 583; quoting Doggett, 505 U.S. at 655-56, 112 S.Ct. at 2692-93; and quoting Lock 266 Ill.App.ed at 192, 640 N.E.2d 334.
It really does happen. Some people are arrested on old warrants they never knew were out there.
However, I must stress that a motion to dismiss charges will only be won when an individual truly did not know about the warrant. If an accused went to court a couple times then stopped going, that is going to be considered a waiver of this right to request dismissal.
As always, talk to your criminal attorney if you think you can file a successful motion to dismiss charges due to prosecutorial delay.