What are Bars to Prosecution?

If you are facing criminal charges, your lawyer should help you understand what facts they can present that would help or hinder your case. This also means using the avenues available in the law to prevent the prosecution from pursuing charges against you, or a “bar” to prosecution.

Generally speaking a bar is a fact or facts, unrelated to guilt or innocence, that cut off prosecution. Bars that can be used in North Carolina law include “double jeopardy”, “ex post facto”, “lack of jurisdiction” “expiration of the statute of limitations”, and “state-granted immunity”, as discussed below.

courtroom, where defense attorneys will present bars and defenses to prosecution

Double Jeopardy

Double Jeopardy is a clause written into the U.S Constitution’s Fifth Amendment, stating that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb”. This has been interpreted to protect defendants against:

  • A second prosecution to the same offense after being acquitted.
  • A second prosecution to the same offense after conviction (by trial or plea).
  • Multiple punishments for the same offense.

North Carolina’s constitution under North Carolina v. Pearce, 395 U.S 711 (1969), has also been used to protect against double jeopardy for North Carolina state charges.

This concept is more complicated than it looks, but its main concern is whether the offenses can be considered the same. One useful way of determining whether two offenses can be considered the same for double jeopardy purposes is the Blockburger Test Blockburger v. United States, 284 U.S 299, 304 (1932). Using this test, two offenses are not considered the same if each offense contains an element that is not in the other.

For example, armed robbery and assault with a deadly weapon with intent to kill are different offenses, because the former requires committing or attempting to commit a robbery, while the latter requires an intent to kill. In contrast, misdemeanor larceny and felony larceny are the same offense under double jeopardy because while felony larceny has an element not in misdemeanor larceny, all the elements in misdemeanor larceny are part of felony larceny. This is also called a “lesser included offense“, which is treated as the same offense as the greater one in double jeopardy analysis.

This analysis can also be used if any successive charges for the same offense are brought against the defendant after they had been acquitted or convicted. Using the same example, if a person committed an offense of misdemeanor larceny and was acquitted or convicted of that crime, they cannot be prosecuted again for the same offense but under felony larceny. Additionally, a defendant cannot be punished multiple times for the same offense.

One key exception to the double jeopardy clause is that it is not violated if the prosecution is made separately in both state and federal courts. This is because the federal government and the states operate as “independent sovereigns” so they are both allowed to pursue prosecution for the same offense.

Ex Post Facto

Both the United States federal law and North Carolina state law give people the right to be free from what are called “ex post facto” laws, or retroactive laws. This essentially means that a person cannot be punished for an act that was not considered criminal at the time they committed it, only because it became a crime later. This not only applies to when a brand new crime is introduced to the law, but also for changes to existing laws such as:

  • Changing the rules of evidence to allow different testimony.
  • Increasing the punishment for a crime.
  • Removing an element needed to prove an offense.
  • Taking away a defense formerly available.

Essentially, while any of the above changes can be made to the law, they cannot be applied to offenses that occurred prior to those changes, and those offenses must be tried based on the law at the time of the offense.

Challenges to ex post facto laws do arise, and there are cases outside of the above examples that are permitted. This often occurs in procedural contexts that dictate how the law must be applied or enforced. Key examples include changes made to procedures in correctional facilities or probation, such as requiring sex offenders to wear satellite-based monitors, do not pose an ex post facto violation.

Lack of Jurisdiction

Lack of jurisdiction for an offense means that the state does not have the authority to try a person for an offense. North Carolina has jurisdiction to try a person for crimes if the key acts that formed the offense took place in the state’s territory. This can apply to cases where arrests took place outside the state, for example, a person can be arrested with trafficking heroin in another state, but if there is evidence that this person sold heroin in North Carolina, then North Carolina can charge that person with the crime.

When a defendant challenges jurisdiction, the State must prove beyond a reasonable doubt that the crime occurred in North Carolina. Deciding whether a criminal act occurred in the state is not always straight forward, and there are several statutes that address some of the problems, including:

  • Assault in the State, Death in Another: In any case of felonious homicide, if a person assaults another in North Carolina, but the victim died from the assault outside of the state, the offender should be indicted and punished for the crime in the county where the assault was made, as if the assaulted person died within the State — N.C.G.S § 15-131.
  • Person in this State Injuring One in Another: If a person in North Carolina causes or puts in motion something that causes any person to be injured in another state (for example, a trap or ordering others to assault that person), that person will be guilty of the same offense as it if occurred within North Carolina — N.C.G.S § 15-132.
  • Offense Occurring in Part Outside North Carolina: If an offense was committed in part in North Carolina and in part outside of the state, that person can be charge in North Carolina if they had not been tried for an identical offense in the other state — N.C.G.S § 15-134.

Expiration of Statute of Limitations

A statute of limitations determines the amount of time a criminal charge can be brought against a defendant after they committed the offense. If that time is exceeded, the crime may not be prosecuted at all.

In North Carolina, there is no statute of limitations on felony crimes, but most misdemeanors have a two-year statute of limitations. One exclusion is “malicious misdemeanors”, which are ill-defined, but generally include misdemeanor crimes involving child abuse. This two-year period begins when the final act of the offense is completed. Some offenses, such as failure to support a child, are defined as “continuing offenses” for statute of limitation purposes. This means the offense is considered ongoing by its nature, such as in the example of failure to support a child, where the offense does not end until the child becomes 18. A misdemeanor offense that has surpassed the statute of limitations can still be submitted to the jury if it is a lesser-included offense of a properly charge felony. For example, a misdemeanor obstruction of justice charge that look place more than 2 years prior can be submitted to a jury as a lesser included offense of a felony obstruction of justice charge.

For the State to comply with the misdemeanor statute of limitations, they must issue a valid criminal process before the two-years expire. This can come in the form of a presentment or indictment in most cases, but if the defendant can be tried in a superior court on a warrant, then that warrant alone will suffice. Additionally, if a timely indictment is found to be improper, another indictment for the same offense may be issued within one year of the previous one’s dismissal.

State-Granted Immunity

In North Carolina, N.C.G.S § 15A, Article 61 allows the court or prosecutor to grant a person immunity from prosecution for an offense in exchange for their agreement to plead guilty to another offense or provide testimony against another defendant. If immunity is granted, that person may not be prosecuted for that offense, regardless of any evidence against them.

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