I understand wolfpup’s concerns about not having statutes of limitations, but much of the rest of the world (and I include countries with Anglo-descended jurisprudence) deals with those problems, if problems they be.
wolfpup’s view seems to stem, at least in part, from an idea that judges should not have wide discretions.
Of course, they do. Certainty and predictability of decision making are laudable ideas, but only achievable in a practical sense up to a certain point; hence, discretions. If the law were capable of being reduced to a series of yes/no answer gates, then the job of judging would be done by clerks.
Discretion lives in the realm where reasonable minds can differ, and where the decision maker is forced to balance competing considerations rather than apply an absolute rule. The application of discretion by judges is so common that there is, in most Anglo-derived systems and I assume the US as well, a substantial body of law dealing with how to deal with discretionary decisions on appeal. Usual answer - it is very difficult to upset discretions.
Now this may offend those whose idea of justice carries with it an overly high value placed on certainty and predictability, but since those are only aspirational and not necessarily realistic goals, we have to deal with the world as it is.
Of course questions of degree arise. I am not about to suggest we have no room for certainty in decision-making. But we can’t and don’t have to insist on it to the level where judicial discretion is essentially flushed from the system.
Remember, decisions on topics which are in fact left to discretion are nevertheless decisions that have to be made, one way or another. In the same way that passively refusing to make a decision amounts to affirmatively making a decision for the default setting, so removing discretion from judges amounts to then having to decide what the default setting is. Do not assume that a default in favour of the accused will always be appropriate. The criminal justice system has to actually work. If the system did indeed acquit 9 out of 10 people (via Blackstone’s maxim) society would be riddled with vigilantism and self-help.
And a one-size-fits-all default may not do justice in individual cases. That may be worse than the availability of discretions.
wolfpup also seems to assume that the unavailability of hypothetical defence evidence always means a trial will be unfair. An historical complaint may mean that records no longer exist of the sort of car the accused owned at the time, the geography of the house he lived in, or even which house he lived in. But remember that by virtue of the hypothesis that the evidence doesn’t exist, there is no reason to assume a* priori * that the non-existent evidence must necessarily have favoured the accused. This problem arises all the time even in fresh prosecutions (where documents have been lost, accidentally destroyed, businesses have gone broke, etc). Suppose a murderer burns the body of the deceased so that no post mortem can determine the cause of death. Other evidence points strongly to the guilt of the accused. The accused can’t say 1) I am presumed to be innocent and therefore not the body burner, and 2) that if the body had been available, it might have shown a cause of death inconsistent with my guilt, therefore 3) the trial is unfair, because I have been deprived of an avenue to challenge the prosecution case.
It does not follow that a prosecution must stop in these circumstances or similar. If it were, the defence could invent any number of documents that no longer exist and assert that they would prove his innocence. The accused does not get to populate the hypothetical world of non-existent things with items at his will. And before anyone says “Presumption of innocence” and “proof BRD”, those two issues emerge at the final stage of decision-making, when the jury are dealing with whether they are satisfied that the elements of the offence have been established. They do not necessarily apply at every individual step along the way.
The better solution in my view, and the one adopted by most Anglo-descended countries, is to accept that there is no solution to the stale prosecution problem perfect enough to justify having stopping prosecutions as a default, and so to allow discretion based on principle to be determinative.
Discretions are not, I hasten to add, a coin toss. They are strictly confined to limited areas by the law. Any individual discretion is confined with a framework of rules about its exercise that prevents caprice. While appealing from discretionary decisions may be difficult, any decisions apparently based on no more than caprice will not likely be so difficult.
