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Suppose someone is involved in a self-defense altercation where the other party ends up dead. As far as I understand this could result in one of the following outcomes:

  1. The police investigate and a DA determines that no crime occurred unofficially (the issue is dropped)
  2. The DA issues a Nolle prosequi declaration and the issue is dropped.
  3. One or more charges are filed.

In either of the first two cases, as far as I can ascertain there is no guarantee that charges couldn't be leveraged at a later date (even if uncommon). So my questions are as follows:

  1. Is a person in one of those two scenarios forever in purgatory where theoretically charges are always potentially pending?
  2. If so, is there some scenario or legal way of definitively closing out the potential of future charges short of being charged and winning in court?
  3. I believe (please correct me if wrong) that one of the most likely scenarios that could result in future re-opening the case and/or charges would be establishing a new "fact pattern". If this is true, would the person speaking publicly on the issue be enough to potentially establish this foothold? In other words, let's say the person does an interview with a news organization. Let's assume they aren't entirely stupid and say something like, "I wanted to kill the guy and I took my shot", but instead just talk about the situation and maybe they describe a scenario which makes the self-defense claim seem a bit gray. Would that potentially be enough?
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    Re: "Is a person in one of those two scenarios forever in purgatory where theoretically charges are always potentially pending?": Isn't that always the case, even without the event you describe? Like, OK, ideally an innocent person would never be charged with a crime; but realistically that does happen and is expected to happen, which is why we have a whole system of trials, appeals, etc.
    – ruakh
    Commented Dec 1, 2023 at 0:36
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    And even if the system works correctly and an innocent person is not convicted, the legal bills can still bankrupt them.
    – user4574
    Commented Dec 1, 2023 at 4:17
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    Deaths that were not caused by an unlawful act you committed happen every day, so in a sense everyone is permanently in the purgatory of the possibility a prosecutor may in error erroneously attribute one of these deaths to a nonexistent unlawful act they committed. Obviously there are certain factual backgrounds that are more likely than others to cause a prosecutor to mistakenly believe that evidence supports a prosecution.
    – Will
    Commented Dec 1, 2023 at 14:28
  • Can you say whether you'd like to discuss the specific, rather limited case or the idea in general? Commented Dec 2, 2023 at 20:11
  • Suppose you drop the narrow 'self-defense' and 'dead' ideas and look at everyone involved in altercations? What could be lost, in terms of general law? Commented Dec 2, 2023 at 20:16

3 Answers 3

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The general rule

Is a person in one of those two scenarios forever in purgatory where theoretically charges are always potentially pending?

In the first scenario, yes.

In the second scenario, "it depends."

In the third scenario, jeopardy does not attach (and hence bar a future prosecution) until a jury is sworn or a witness is called in a bench trial.

Even if charges are brought, double jeopardy doesn't preclude a new trial until one of those two things happen, and even then, a retrial is allowed if there is a mistrial that is not the fault of the prosecution or if there is a conviction that is vacated on appeal for a new trial.

Also, a state court trial doesn't bar a federal prosecution (even if it produces an acquittal) and visa versa.

Options to definitively resolve potential criminal charges

If so, is there some scenario or legal way of definitively closing out the potential of future charges short of being charged and winning in court?

Generally, you can't do anything.

Not really, but a few potential exceptions are discussed below.

While it is rare, it isn't unheard of for criminal charges to be brought decades later when an investigation was initially inconclusive. This has mostly happened in U.S. civil rights era cases, in cases arising out Nazi war crimes, and in cold cases where new evidence (often DNA evidence, but sometimes confessions or other evidence).

Civil lawsuits generally aren't an option

A civil action for a declaratory judgment that you were not guilty would usually be dismissed on the grounds that it is "not ripe for adjudication" if no charges are pending (which deprives the court of subject-matter jurisdiction over the case).

Agreements with the DA

The best option that is usually available is to reach an agreement with the District Attorney (DA) (i.e. criminal prosecutor), although this, of course, requires the DA to be willing to do so, which would be uncommon.

A DA can make a binding agreement that the DA's office in question (even with a different DA holding that office) will not prosecute the case in the future. A Nolle prosequi declaration would frequently be issued following such an agreement.

One famous case where such an agreement was ultimately upheld (following a trial ending in a mistrial, a retrial resulting in a conviction, a first appeal upholding the verdict, and an ultimate vindication in the state supreme court) was the prosecution of Bill Cosby for sexual assault. But, as the procedural history of that case illustrates, enforcing such agreements can be difficult due to fights over the scope of the agreement and its applicability to the case in question.

An agreement with the DA isn't perfect protection.

In our federal system, many murders are both state and federal crimes, and an agreement with a state prosecutor wouldn't bar a federal prosecution (and vice versa).

Also, in some states a DA's agreement would only bind that office and not the state attorney general, which often also has authority to prosecute state law crimes that a DA does not prosecute, while in other states, the DA's agreement would bind all state prosecutors since the DA is an agent of the state and "the People" in whose name the charges are brought.

Special state self-defense laws may exist in a handful of states

I believe that there may be a handful of U.S. states that specifically provides for a proceeding by which someone who asserts self-defense can get a binding acquittal, under recent pro-self-defense legislation.

But this is rarely an option, since few jurisdictions allow it and there are often other limitations on seeking this remedy (e.g., it might only be available if there has been an indictment) where it is available.

In Florida, for example, you can have a binding pre-trial determination of a judge that you were exonerated based upon self-defense, but this right is triggered only once you are prosecuted, even though it can apply before jeopardy attaches for double jeopardy purposes.

Pardons are possible in some cases

A pardon would also prevent any risk of prosecution.

But, while uncharged conduct can be pardoned for federal crimes, only a minority of U.S. states allow for the pardon of uncharged conduct. Also, while this is a disputed matter and a pardon doesn't amount to an admission of civil liability, many people interpret acceptance of a pardon as an admission of guilt, which could harm the reputation of someone who asserts and believes that they did not commit a crime.

Statutes of limitations eventually bar most non-murder charges

Of course, in most U.S. states and in the District of Columbia, almost all crimes except murder and some fraud offenses and sometimes certain sex offenses have a statute of limitations that bars prosecutions after a certain period of time (two to seven years after the crime was committed with a handful of exceptions). Most federal crimes have a five year statute of limitations.

Sometimes only true murder has no statute of limitations in states that have criminal statutes of limitations for felonies, but in other states, there is no statute of limitations for any homicide charges or for any homicide charges other than criminally negligent homicide.

Seven states do not have a statute of limitations, for almost any felonies (sometimes with minor exceptions). South Carolina and Wyoming are the only states without a statute of limitations for misdemeanors.

In the case of an arguable murder where self-defense is claimed, statute of limitations won't normally be an issue. But, for the vast majority of criminal charges in most U.S. jurisdictions, the statute of limitations will bar future charges.

The federal law statutes of limitations in criminal cases are summarized here:

What Is The Federal Statute Of Limitations – Generally?

The federal statute of limitations for most offenses is five years from the time the offense occurred. 18 U.S.C. § 3282.

What Are Federal Crimes That Have No Statute Of Limitations?

There are some serious crimes that do not carry a statute of limitations and can be prosecuted at any time:

Any crime where death could be punishment.18 U.S.C. § 3281.

Crimes involving terrorism that results in serious bodily injury or create a risk of death or serious injury. 18 U.S.C. § 3286.

Crimes, including kidnapping, sexual abuse, and sexual exploitation, where the victim is a minor. 18 U.S.C. § 3299.

What Are Federal Crimes With Longer Statute Of Limitations?

In many other cases, the statute of limitation still exists, but is longer than the general five-year rule. These include, but are not limited to:

Crimes involving terrorism 18 U.S.C. 3286 8 years

Wartime Fraud 18 U.S.C. 3287 5 years from end of war

Child Kidnap, Sexual or Physical Abuse 18 U.S.C. 3283 Longer of 10 years or life of victim

Crimes involving nationality, citizenship, or passports 18 U.S.C. 3291 10 years Crimes against Financial Institutions 18 U.S.C. 3293 10 years

Theft of major artwork 18 U.S.C. 3294 20 years

Non-capital Arson offenses 18 U.S.C. 3295 10 years

Trafficking offenses 18 U.S.C. 3298 10 years

Recruitment of child soldiers 18 U.S.C. 3300 10 years

Federal tax evasion/fraud against the IRS 26 U.S.C. 6531 6 years

Major Fraud against the US 18 U.S.C. 1031 7 years

Data Offenses under Atomic Energy Laws 42 U.S.C. 2278 10 years

Offenses under Subversive Activities Control Act 50 U.S.C. 783 10 years

What Are Federal Crimes With Shorter Statute Of Limitations?

Some crimes also have shorter statutes of limitations. These are somewhat more limited and in specific instances. In tax crimes, most statutes of limitations are three years instead of five years (not including those stated in the chart above). 26 U.S.C. § 6531. Criminal contempt’s statute of limitations is only one year long, if brought under certain parts of the code. 18 U.S.C § 3285.

There are certain crimes that have special rules regarding the beginning of the statute of limitations.

The running of limitations typically begin after the last element has been satisfied. In the case of conspiracy, there will be many overt acts in the commission of the ultimate offense. The statute of limitations for conspiracy will begin at the final overt act. Fiswick v. United States, 329 U.S. 211, 216 (1946). Other criminal acts are also considered continuing crimes for the purposes of the statute of limitations including: escape or flight from custody or prosecution, possession of contraband, kidnapping, concealment of assets of in bankruptcy, and failure to pay child support.

Statute of limitations can also be delayed from beginning by other circumstances. In cases where DNA is involved, the statute of limitations is delayed for the time it takes to use the DNA for identification. 18 U.S.C. § 3297. The statute of limitations, in that circumstance, begins to run after the DNA has identified the wrongdoer. Under another statute, the use of DNA in an aggravated sexual abuse case to procure an indictment for the DNA profile suspends the statute of limitations. 18 U.S.C. § 3282. When an indictment or information is dismissed, the government gets an additional six months on the statute of limitations. 18 U.S.C. § 3288. When the information or evidence needed for the prosecution is located in a foreign area, the court is able to suspend the statute of limitations to accommodate. 18 U.S.C. § 3292. In addition, any person fleeing from justice shall not enjoy the benefit of the statute of limitations. 18 U.S.C. § 3290.

State statutes of limitations in criminal cases are summarized here. States without a statute of limitations for felonies include Kentucky, Maryland, North Carolina, South Carolina, Virginia, West Virginia (except certain kinds of perjury with a 3 year statute of limitations), and Wyoming.

For non-capital felonies and non-fraud offenses, most states have a statutes of limitations of 3-7 years is typical. Pennsylvania and Mississippi have a 2 year statute of limitations for felonies. Tennessee has statutes of limitations from 2-15 years depending upon the offense for these felonies. Many states with a criminal statute of limitations have selected exceptions to the general rule that may be fact specific (e.g., cases with DNA evidence or crimes against children) or exceptions that are charge specific.

Why Are Charges Filed Late?

I believe (please correct me if wrong) that one of the most likely scenarios that could result in future re-opening the case and/or charges would be establishing a new "fact pattern". If this is true, would the person speaking publicly on the issue be enough to potentially establish this foothold? In other words, let's say the person does an interview with a news organization. Let's assume they aren't entirely stupid and say something like, "I wanted to kill the guy and I took my shot", but instead just talk about the situation and maybe they describe a scenario which makes the self-defense claim seem a bit gray. Would that potentially be enough?

In the U.S., no new facts are needed to bring a criminal case that isn't barred by the statute of limitations or double jeopardy. While cold cases often are refiled based upon new evidence, public attention to a case in which there is no new evidence is also often a factor.

Another factor is shifting public opinion. Many civil rights era cases were not brought because anti-civil rights sentiment at the time meant that a jury was unlikely to convict someone for killing a black man or a civil rights worker, with a jury likely to resort to jury nullification even if the evidence of guilt was overwhelming. That sentiment faded over time and a prosecutor might bring a case now because the fear of an unfavorable jury no longer discourages prosecution.

Additional Procedural Consideration

It is common in cases of killings by law enforcement officers and in self-defense cases, where the DA doesn't really believe that a murder was committed but wants to diffuse blame for not bringing charges, for the DA to present the case in a neutral fashion (as opposed to the usual strong one-sided advocacy for an indictment) to a grand jury. In these cases, the grand jury usually, although not always, declines to indict, even though usually 99.9% of cases presented to grand juries result in indictments.

While a "no bill" from a grand jury is not a legal bar to a prosecution, a grand jury finding that the state did not have probable cause to prosecute the case strongly discourages future prosecutors from bringing a case.

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    double jeopardy doesn't present a new trial: prevent*?
    – JAD
    Commented Dec 1, 2023 at 10:38
  • There are federal rules by which a defendant can force a US Attorney to drop charges, Apparently the threat of charges was once used to basically mess with defendants.
    – Tiger Guy
    Commented Dec 1, 2023 at 18:15
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    @JAD Thanks. Fixed. I meant to say "preclude" and not "prevent" but evil Internet gremlins changed my answer and put "present" instead.
    – ohwilleke
    Commented Dec 1, 2023 at 18:24
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    @ohwilleke it's a fed court Rule; it was part of the Gleeson Amicus Curiae write-up that was part of the Michael Flynn case and if courts can not allow prosecution to drop a case I think. Rule 48(a) if my quick look up applies.
    – Tiger Guy
    Commented Dec 1, 2023 at 18:29
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    @user541686 That would have to be granted by every sovereign which would bring a charge, which at minimum in the US would tend to be the Federal government and one State, but conceivably could involve several states or Indian Tribal Governments. I think a classic question of how many sovereigns can you possibly be subjected to within the US for a single act has an answer of 7 (4 states, 2 Indian tribes, 1 Federal). Commented Dec 3, 2023 at 12:33
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For summary (non-indictable) offences, there is a limitation period of twelve months: charges must be brought within twelve months of the offence.

For indictable offences, there is no limitation period. Only after an acquittal, conviction, or court-ordered stay of proceedings would further prosecution of the offence be prohibited.

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  • Thanks for the quick response. I should have noted though that I was specifically asking with regard to USA law, though I suspect that your answer is valid for both. I'd also assume that the other case would be statute of limitations (though homicide typically does not have such limitation)
    – shellster
    Commented Nov 30, 2023 at 15:21
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An interesting example of immunity from prosecution comes from Epstein's first trial: the plea deal included immunity for all un-indicted co-conspirators, at the request of the FBI (who said they were relaying the request from the CIA or an allied intelligence service (i.e. SIS (MI6), CSIS, ASIS, Mossad, or a few others)).

In his case, there were also applicable state crimes, and there was no immunity there, but everyone involved (eg. Ghislaine Maxwell) was protected from federal prosecution for that set of offences.

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