Three year delay between defendant’s indictment
and final conviction held reasonable where defendant had
been released on bail for offense in question and was
subsequently arrested and incarcerated in different
jurisdiction in state on unrelated charges. Defendant
failed to move for trial on speedy trial basis until end of
three year period and failed to demonstrate prejudice
from delay. State v. McNamara, 212 N.J. Super. 102
(App. Div. 1986), certif. denied 108 N.J. 210 (1987).
Although the Court refused to apply Barker
retrospectively, it was convinced that the defendant was
not deprived of his right to a speedy trial. The length of
time from filing of the indictment to the time of trial was
approximately two years; the State offered a valid reason
for the delay; defendant did not demand a specified trial
date; and defendant did not suffer prejudice. State v.
Cappadona, 127 N.J. Super. 555, 557-558 (App. Div.
1974).
Defendant’s right to a speedy trial was not
compromised by the 18-1/2 month delay between arrest
and indictment, or by the nearly two-year delay between
indictment and trial. Defendant was free on bail for the
most part, he never asserted his right to a speedy trial, and
he suffered no prejudice as a result of the delay. State v.
Gilliam, 224 N.J. Super. 759, 765 (App. Div. 1988).
H. Compare: Protections of the Due Process Clause
The Due Process Clause imposes a limit on the extent
to which prosecuting authorities may delay initiating a
criminal prosecution after discovering an offense has been
committed. State v. Aguirre, 287 N.J. Super. 128, 131-
132 (App. Div.), certif. denied, 144 N.J. 585 (1996). See
also United States v. Lovasco, 431 U.S. 783, 789 (1977);
United States v. Marion, 404 U.S. 307, 324 (1971). In
particular, “the due process inquiry focuses on whether
the delay ‘violates those ‘fundamental conceptions of
justice which lie at the base of our sense of fair play and
decency.’” State v. Aguirre, 287 N.J. Super. at 132,
quoting United States v. Lovasco, 431 U.S. at 790.
Unlike analysis under the Sixth Amendment’s
Speedy Trial Clause, which involves a four-factor
balancing test, claims under the Due Process Clause
arising from pre-indictment or pre-arrest delay are
measured by “a far more rigorous standard.” State v.
Aguirre, 287 N.J. Super. at 132. In order to prevail, a
defendant must demonstrate “both that (1) there was no
legitimate reason for the delay, and (2) he was prejudiced
thereby.” Ibid., quoting State v. Rodriguez, 112 N.J.
Super. 513, 515 (App. Div. 1970); see also State v. Little,
296 N.J. Super. 573, 580 (App. Div.), certif. denied 150
N.J. 25 (1997); State v. Cichetto, 144 N.J. Super. 236,
238 (App. Div. 1976); State v. Roundtree, 118 N.J. Super.
22, 28-29 (App. Div. 1971). The ultimate burden of
persuasion on both issues rests with defendant. State v.
Cichetto, 144 N.J. Super. at 239. Moreover, the State is
only obligated to show there was a legitimate reason for
the delay if and when defendant shows he suffered
prejudice. Ibid.; State v. Roundtree, 118 N.J. Super. at 29.Furthermore, the law is well-settled that actual
prejudice, not possible or presumed prejudice, is
required. State v. Aguirre, 287 N.J. Super. at 133. See State
v. Alexander, 310 N.J. Super. 348, 353 (App. Div.), certif.
denied, 156 N.J. 408 (1998). Specifically, defendant
must show “the delay caused ‘actual and substantial
prejudice,’ endangering his right to a fair trial and ‘must
present concrete evidence showing material harm.’” Id.
at 134, quoting United States v. Anagnostou, 974 F.2d
939, 941-942 (7th Cir. 1992), cert. denied 507 U.S.
1050 (1993). “‘Vague and conclusory allegations of
prejudice resulting from the passage of time and the
absence of witnesses are insufficient....’” Ibid., quoting
United States v. Jenkins, 701 F.2d 850, 855 (10th Cir.
1983).A majority of federal circuit courts of appeal have held
that “for pre-indictment delay to violate the due process
clause it must not only cause the accused substantial,
actual prejudice, but the delay must also have been
intentionally undertaken by the government for the
purpose of gaining some tactical advantage over the
accused or for some other impermissible, bad faith
purpose. See United States v. Crouch, 84 F.3d 1497, 1514
(5th Cir.1996)(en banc), cert. denied 519 U.S. 1076
(1997) and cases cited therein, including United States v.
Ismaili, 828 F.2d 153, 157 (3d Cir.1987), cert. denied
485 U.S. 935 (1988).III. RIGHT TO CONFRONTATION
(See also, WITNESSES, this Digest)
A. Origin“In all criminal prosecutions, the accused shall enjoy
the right... to be confronted with the witnesses against
him.” N.J. Const. Art. 1, ¶ 10; U. S. Const. Amend. VI
Mattox v. United States, 156 U.S. 237 (1895).“The primary object of the constitutional provision
in question was to prevent depositions or ex parte
affidavits ... being used against the prisoner in lieu of a
personal examination and cross-examination of the