Journal of Criminal Law and CriminologyVolume 68Issue 4 December Article 7

Winter 1977

Speedy Trial

Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc

Part of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice Commons

This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.

Recommended CitationSpeedy Trial, 68 J. Crim. L. & Criminology 543 (1977)

Vol. 68, No. 4Printed in U.S.A.

THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGYCopyright @ 1977 by Northwestern University School of Law

SPEEDY TRIAL

United States v. Lovasco, 97 S. Ct. 2044 (1977).

The Supreme Court of the United States hasrecognized that the right to a speedy trial "isone of the most basic rights preserved by ourConstitution."' The right, as encompassed bythe sixth amendment to the United States Con-stitution,2 can be traced to the Magna Carta of1215,3 which states, "we will sell to no man, wewill not deny or defer to any man either justiceor right. '4 The Framers of the Constitution,being well versed in the philosophy of theMagna Carta and its interpretations in theEnglish law, considered the right fundamentaland included it in the Constitution.'

Until recently however, the Supreme Courthas provided little guidance as to when anaccused may assert this right.6 In United States

I Klopfer v. North Carolina, 386 U.S. 213, 226(1967). The Supreme Court held that the right to aspeedy trial is a fundamental right and is applicableto the states via the fourteenth amendment dueprocess clause. Id. at 222-23.

2 "In all criminal prosecutions, the accused shallenjoy the right to a speedy and public trial." U.S.CONST. amend. VI.

I See Klopfer v. North Carolina, 386 U.S. 213, 223(1967). Evidence that the right pre-dated even theMagna Carta may be found in Assize of Clarendon(1166).Id. at 223.

4 Klopfer v. North Carolina, 386 U.S. 213, 223(1967), (quoting Magna Carta ch. 29 (ch. 40 of KingJohn's Charter of 1215) (1225), translated and quotedin Coke, THE SECOND PART OF THE INSTITUTES OFTHE LAws OF ENGLAND (Brooke ed. 5th ed, 1797)).

5 Klopfer v. North Carolina, 386 U.S. 213, 225(1967). Evidence that the right was considered fun-damental is found in the early constitutions of thestates and its prominent place in the sixth amend-ment of the United States Constitution. Id. at 225-26.

6 In their concurring opinion in Dickey v. Florida,398 U.S. 30, 40 (1970) (Brennan, Marshall, JJ., con-curring), Mr. Justice Brennan and Mr. Justice Mar-shall criticize the Court's lack of attention with regardto the right to a speedy trial. Only three SupremeCourt cases before Klopfer v. North Carolina, 386U.S. 213 (1967), dealt with the right: . Beavers v.Haubert, 198 U.S. 77 (1905), Pollard v. United States,352 U.S. 354 (1957), and United States v. Ewell, 383U.S. 116 (1966). The Court in Beavers dealt with theright in terms of the relevant circumstances sur-rounding the particular case. 198 U.S. 77, 86 (1904).In Pollard, the Court said that the delay cannot bepurposeful, 352 U.S. at 361, and in Ewell, the Court

v. Marion,7 the Supreme Court focused on thelanguage of the sixth amendment8 and con-cluded that the sixth amendment speedy trialprovision does not apply until an individualbecomes an accused, that is either througharrest or indictment. The Court also statedthat Rule 48(b) of the Federal Rules of CriminalProcedure9 is limited in application to post-arrest situations, and in a footnote expresseddoubt as to whether the rule applies in circum-stances where the indictment is the first formalact in the criminal prosecution. 0

In Marion, the defendants were indicted ap-proximately three years after their allegedcriminal acts (consumer fraud). The districtcourt dismissed the indictment stating that thedelay was bound to have seriously prejudiced

discussed the reasons for having the right, 383 U.S.at 120. After Klopfer and up until the time of Dickey,which dealt with the right as applicable to an individ-ual charged with a state offense but already incarcer-ated on an unrelated federal charge, 398 U.S. at 30,only one other case, Smith v. Hooey, 393 U.S. 374(1969), dealt with the right. Smith involved the rightas applicable to an individual who is serving time ona charge imposed by another jurisdiction, 393 U.S.at 377-78.

In their concurrence in Dickey, Brennan and Mar-shall note that none of the Court's opinions relatingto the right to a speedy trial adequately discuss theparameters of the right and leave open such basicquestions as to when the right attaches, whetherprejudice to the accused must be proven, andwhether the delay must be part of a deliberate schemeby the prosecutor. 398 U.S. 30, 41 (1970) (Brennan,Marshall, JJ., concurring).

7 404 U.S. 307 (1971).8 The Marion Court focused on the inclusion of

the word 'accused' in the sixth amendment, see note2 supra, and concluded that "[tihe framers couldhardly have selected less appropriate language ifthey had intended the speedy trial provision to pro-tect against preaccusation delay." 404 U.S. at 314-15.

9 "If there is unnecessary delay in presenting thecharge to a grand jury or in filing an indictmentagainst a defendant who has been held to answer inthe district court, or if there is unnecessary delay inbringing a defendant to trial, the court may dismissthe indictment, information or complaint." FED. R.CRIM. P. 48(b).

10 404 U.S. at 312 n.4 .

SPEEDY TRIAL

the defendants." Nevertheless, no specificprejudice was claimed or demonstrated. 12

The Supreme Court, on appeal, reversedthe lower court on the grounds that neitherthe sixth amendment nor Rule 48(b) was appli-cable to the defendants' allegation that thethirty-eight month delay between the commis-sion of the act charged and the indictment wasin violation of their right to a speedy trial. TheCourt, however, in dicta, recognized that incertain instances a fifth amendment due proc-ess' 3 claim would be warranted where the delay"caused substantial prejudice to appellees'rights to a fair trial and . . . the delay was anintentional device to gain tactical advantageover the accused.' 4 However, in this situationwhere no actual prejudice was alleged orclaimed, the Court refused to grant relief un-der the fifth amendment due process clause.' 5

The federal courts have been divided, insituations pertaining to pre-arrest or pre-indict-ment delay, in attempting to interpret andapply the dicta in Marion.16 Two schools of

" The district court reached its determination bylooking at the three year delay and concluding thatthe relevant facts needed to initiate proceedingsagainst the accused were available to the governmentthree years earlier. Id. at 310.

12 Id.13 "[N]or be deprived of life, liberty or property,

without due process of law." U.S. CONST. amend. V.14 404 U.S. at 324 (1971).11 The Court left open the possibility that actual

prejudice might be proven at trial, but since rioprejudice was alleged or claimed by the defendants,the Court held that any due process claim would be"speculative and premature." Id. at 326.

For a case in which the defendant was grantedrelief under the due process clause, see Petition ofPravoo, 17 F.R.D. 183 (D. Md. 1955). The indictmentwas dismissed due to the delay caused by the govern-ment by bringing the case to trial in New York,when it should have known that the proper place ofvenue was Maryland. Id. at 200.

16 For a detailed description of the disunity be-tween and within each federal district, see UnitedStates v. Alderman, 423 F. Supp. 847, 849-55 (D.Md. 1976).

The First Circuit has required the two prongconjunctive test as a determination of a due processspeedy trial claim. See United States v. Churchill, 483F.2d 268 (1st Cir. 1973), and United States v. Daley,454 F.2d 505 (1st Cir. 1972). The Second Circuit hasnot definitively decided whether a conjunctive ordisjunctive test is appropriate. In United States v.Finkelstein, 526 F.2d 517, 525-26 (2nd Cir. 1975),cert. denied, 425 U.S. 960 (1976), the question hadbeen deliberately left open. But see United States v.Mallah, 503 F.2d 971, 989 (2nd Cir. 1974), where the

thought have emerged: one espousing a twoprong conjunctive test, requiring both the ele-ments of prejudice and the showing of anintentional tactical device by the Governmentin order to warrant dismissal of an indictment,and the other requiring either prong of thetest.'

7

In United States v. Lovasco,18 the SupremeCourt purports to clarify "the circumstances inwhich the Constitution requires that an indict-ment be dismissed because of delay betweenthe commission of an offense and the initiationof prosecution."1 9 The Court, in an opinionwritten by Mr. Justice Marshall, held that "toprosecute a defendant following investigativedelay does not deprive him of due process,

court said that pre-indictment delay may invalidate aprosecution if the delay was pari of a scheme toharass the accused. The Third Circuit has also beensplit between the disjunctive and the conjunctiveapproach. See United States v. United States GypsumCompany, 383 F. Supp. 462 (W.D. Pa. 1974), whichrequires a two prong conjunctive test and UnitedStates v. Clark, 398 F. Supp. 341, 350 (E.D. Pa.1975), which requires a disjunctive test. In Hamiltonv. Lumpkin, 389 F. Supp. 1069 (E.D. Va. 1975), adistrict court of the Fourth Circuit interpreted Marionas requiring a disjunctive test. Within the FourthCircuit, however, there are very few cases construingthe Marion opinion and it remains unclear what therule in this circuit is. The Fifth Circuit has recentlyshifted from a disjunctive test, United States v.Schools, 486 F.2d 557 (5th Cir. 1973), to a conjunctivetest requirement, United States v. Duke, 527 F.2d386 (5th Cir. 1976). The Sixth, Seventh and EighthCircuits have all interpreted Marion as requiring atwo part conjunctive test; United States v. Alred, 513F. 2d 330 (6th Cir. 1975), United States v. White, 470F.2d 170 (7th Cir. 1972), and United States v. Atkins,487 F.2d 257 (8th Cir. 1973). The Ninth Circuit haselected to apply the disjunctive approach, UnitedStates v. Erickson, 472 F.2d 505 (9th Cir. 1973), whilethe Tenth Circuit has gone the other way and re-quired a conjunctive approach, United States v.MacClain, 501 F.2d 1006 (10th Cir. 1974).

17 Some courts have rejected both the disjunctiveand conjunctive approach and have attempted toapply a balancing test. In United States v. Harmon,379 F. Supp. 1349 (D. NJ. 1974), the court said thatit does not recognize the two prong test to be theholding in Marion, and instead attempts to balanceall the circumstances involved in the delay to reach adetermination of the defendant's right to a speedytrial. Id. at 1351. See also United States v. Mays, 549F. 2d 670 (9th Cir. 1977).

"s 97 S. Ct. 2044 (1977). The opinion was writtenby Justice Marshall, joined by Chief Justice Burger,and Justices Brennan, Stewart, White, Blackmun,Powell, and Rehnquist, with Justice Stevens, dissent-ing, id., at 2053.19 Id. at 2046.

[Vol. 68

SUPREME COURT REVIEW

even if his defense might have been somewhatprejudiced by the lapse of time. 20

In Lovasco, the respondent was indicted onMarch 6, 1975, on three counts of unlawfulpossession of handguns stolen from the UnitedStates mail. 21 The indictments, handed downsome seventeen months after the alleged of-fense, referred to eight guns which Lovascopossessed and sold to a third party betweenJuly 25, 1973 and August 31, 1973. The districtcourt and the court of appeals22 dismissed theindictments because the delay was "unnecessaryand unreasonable" and resulted in the defend-ant being prejudiced in that two allegedly ma-terial witnesses had since died. It was con-tended that one witness, Tom Stewart, wouldhave testified that he sold Lovasco two of thefirearms in question, adding substance to Lo-vasco's claim that he did not know the firearmswere in fact stolen from the United Statesmails.23 The second witness, respondent'sbrother, was allegedly a witness to the transac-tion between Stewart and Lovasco and all ofLovasco's sales.

The district court also found that the postalinspector in charge of the case would haverecommended that proceedings against Lo-vasco be initiated as early as October 2, 1973,based on findings contained in a report submit-ted to the United States Attorney.2 The prose-curing attorney, however, attempted to justifythe delay by claiming that the initiation ofproceedings against Lovasco were delayed inthe hope of identifying and proving ,the in-volvement of others in the offense, particularlythe accused's son. The district court and thecourt of appeals, nevertheless, deemed thedelay unjustified, unnecessary and unreasona-ble.

20 Id. at 2052.21 Lovasco was actually indicted on four counts;

the fourth count pertaining to the business of dealingin firearms without a license. Since this count isirrelevant to the question of whether the guns werestolen, the lower courts have treated it as distinctfrom the other three counts. 532 F.2d at 62 (8th Cir.1976).

22 532 F.2d 59 (8th Cir. 1976).23Id. at 61. Nevertheless, the Supreme Court

stated that Lovasco failed to show how the witnesseswould have aided in his defense had they beenwilling or able to testify. 97 S. Ct. 2047 (1977). JudgeHenley's dissent to the court of appeals' opinion,brings out the same question. 532 F.2d 59, 62 (8thCir. 1976).

24 532 F.2d 59, 61 (8th Cir. 1976).

In reversing the appellate court, the Su-preme Court held that although prejudice is anecessary element of a due process claim, italone is not sufficient, so that a "due processinquiry must consider the reasons for the delayas well as the prejudice to the accused."5 TheCourt based its reasoning for the holding onUnited States v. Marion, concluding that theMarion Court formulated a two prong conjunc-tive test in determining the validity of a dueprocess claim.

The two part formulation, as espoused inMarion, (1) prejudice and (2) intentional delayto gain a tactical advantage, has been somewhatreformulated by the Court in Lovasco. Whileretaining the first part of the test, prejudice,the Court has altered the second part into aninquiry regarding the reasons for the delay. 26

While the significance of the reformulation isopen to debate and will be explored in detaillater on in the case note, it is interesting tonote that both the Marion and Lovasco formula-tion represent a departure from the earlierSupreme Court case, Pollard v. United States.27

In Pollard, the Court held that the "delay mustnot be purposeful or oppressive,"' and deniedpetitioner's claimed violation of a speedy trialbased on a two year delay in sentencing afterhis trial. The Court in Pollard based its decisionon the fact that the delay was accidental andpromptly remedied when discovered. Underthe Marion or Lovasco formulation, however, it,would appear that purposeful delay by theGovernment would be perfectly acceptable un-

25 97 S. Ct. at 2049.26 In the concurring opinion in Dickey v. Florida,

398 U.S. 30, 40 (1970) (Brennan, Marshall, JJ., con-curring), Mr. Justice Brennan and Mr. Justice Mar-shall provide a possible insight as to why the major-ity's opinion in Lovasco, which was written by Mar-shall, fails to reiterate the precise language of Marion.In Dickey, Marshall and Brennan recognize delay inprosecution brought around through the negligenceof the government as relevant to a speedy trial claim,398 U.S. at 51-52. Reiteration of the language inMarion could have the effect of precluding a speedytrial claim based upon negligence.

27 352 U.S. 354 (1957).2Id. at 361. See Note,The Lagging Right to a Speedy

Trial, 51 VA. L. REv. 1587 (1965). "If 'purposeful'means bordering on bad faith, then no court delay isever likely to run afoul of the sixth amendment. Onthe other hand, if 'purposeful' means intentional, itmakes very little sense to draw a constitutional linebetween accidental delays and intentional good faithdelays." Id. at 1600.

1977]

SPEEDY TRIAL

less it was to gain a tactical advantage over thedefendant. Thus the Court has apparentlyshifted its approach and is willing to sanctionintentional delay in certain instances in prose-cuting a defendant.

Marshall's opinion in Lovasco has also ce-mented the notion that the sixth amendmentspeedy trial provision is not applicable to thepre-arrest, pre-indictment stage. In Marion,Justices Douglas, Brennan and Marshall con-curred, but took issue with the majority andindicated that the sixth amendment was appli-cable to the pre-indictment stage.2 9 Yet in Lo-vasco, Marshall was willing to accept the notionthat the sixth amendment is not applicableprior to arrest or indictment. One possibleexplanation for this shift in opinion is that theconcurring Justices in Marion now believe thatthe fifth amendment due process clause canprotect the rights of the potential defendant aswell as the sixth amendment speedy trial pro-vision.

The Supreme Court, in interpreting the dueprocess formulation espoused in Marion as re-quiring a two prong conjunctive test, will ap-parently eliminate some of the confusion inthe federal courts surrounding a due processspeedy trial claim. 30 The Lovasco Court basedits support of the two prong formulation onthree reasons. First, the Court expressed con-cern that "compelling a prosecutor to file publiccharges as soon as the requisite proof has beendeveloped . . .would impair the prosecutor'sability to continue his investigation, therebypreventing society from bringing lawbreakersto justice. ' ' 31 Secondly, the Court has expressedits reluctance to force prosecutors into initiatingproceedings in doubtful cases, and finally theCourt is unwilling to interfere with the subjec-tive analysis of the prosecutor in whether to

29 404 U.S. at 328 (Douglas, Brennan, Marshall,JJ., concurring). Justices Marshall, Brennan andDouglas refute the majority opinion's interpretationof English and colonial American history that thesixth amendment's speedy trial provision was neverintended to apply to the pre-indictment stage. "TheEnglish common law, with which the Framers werefamiliar, conceived of a criminal prosecution as beingcommenced prior to indictment. Thus in that settingthe individual charged as the defendant in a criminalproceeding could and would be an "accused" priorto formal indictment." Id. at 329.10 See note 16, supra.31 97 S. Ct. at 2050.

bring charges, notwithstanding the strength ofthe Government's case. 2

These three reasons in support of the twoprong conjunctive formulation demonstratethe Court's unwillingness to force a prosecutorinto initiating proceedings in order to avoiddismissal due to prejudice to the potential de-fendant. In Hoffa v. United States,33 which theLovasco Court cited to support this notion, theCourt said:

[T]here is no constitutional right to be arrested.The police are not required to guess at theirperil the precise moment at which they haveprobable cause to arrest a suspect, risking aviolation of the Fourth Amendment if they acttoo soon and a violation of the Sixth Amend-ment if they wait too long.34

In addition, this line of reasoning, as ex-pressed in Hoffa and reflected in Lovasco, dem-onstrates the Court's concern with the protec-tion of societal interests. It fails, however, totake into consideration the protection of theindividual's interests.

In support of its first reason, the protectionof society by not cutting short an investigationinto criminal activities by forcing a prosecutorto initiate proceedings against a potential de-fendant, the Court relies on Rochin v. Califor-nia.3 In Rochin, the Supreme Court, in exam-ining the due process clause stated that:

The vague contours of the Due Process Clausedo not leave judges at large. We may not drawon our merely personal and private notions anddisregard the limits that bind judges in theirjudicial function. Even though the concept ofdue process of law is not final and fixed, theselimits are derived from considerations that arefused in the whole nature of our judicial proc-ess. 36

Lovasco, relying on this statement, stands forthe proposition that under a due process claim,the Court will not second-guess the judgmentof the prosecutor in terms of the time when

32 Id. at 2050-51.

- 385 U.S. 293 (1966).34 Id. at 310.

- 342 U.S. 165 (1952).36 Id. at 170-71. See also Lisenba v. California, 314

U.S. 219 (1941); Herbert v. Louisiana, 272 U.S. 312(1926); and Mooney v. Holohan, 294 U.S. 103, 112-13 (1935), for the notion that due process entails thefundamental fairness ofjustice.

[Vol. 68

SUPREME COURT REVIEW

prosecution is initiated. The Court, in essence,has placed all its faith in the ethical conduct ofthe prosecutor,37 which of course is open toserious abuse.38

The second reason the Court gives for itsdecision in Lovasco is its reluctance to forceprosecutors into initiating proceedings indoubtful cases. This reason fails to take intoaccount the interests of the individual. Thoseinterests were taken into account, however, inUnited States v. Ewell,3 9 where the SupremeCourt, in discussing the speedy trial provisionof the sixth amendment, said that "[tihis guar-antee is an important safeguard . . . to mini-mize anxiety and concern accompanying publicaccusation and to limit the possibilities thatlong delay will impair the ability of an accusedto defend himself."40 While the Ewell Courtwas dealing with a post-arrest situation, it isnevertheless important to focus on its concernfor minimization of anxiety. Long delays dur-ing an investigative period would clearly serveto maximize the anxiety of a potential defend-ant rather than minimize it. Granted, manytimes an individual is not even aware that he isthe focus of an investigation, 41 but in thoseinstances where he is, prolonged delay untilthe prosecutor makes up his mind whether ornot to initiate proceedings would have theeffect of maximizing anxiety, and have thepotential for continuous harassment of the in-dividual.

42

37 For an inquiry into the ethical considerations ofthe public prosecutor, see ABA CODE OF PROFES-SIONAL RESPONSIBILITY, EC 7-13 (1976).

-' Mr. Justice Stevens, in his dissent to Lovascodiscussed the seriousness involved in removing allrestraints on the prosecutor's power. 97 S. Ct. at2053 (Stevens, J., dissenting).

39 383 U.S. 116 (1968).40 Id. at 120.4' For the view that another sixth amendment

right, the right to counsel, attaches when the individ-ual becomes the focus of an investigation, see Esco-bedo v. Illinois, 378 U.S. 478 (1954).

42 For the view that anxiety is generally unimpor-tant in speedy trial determinations, see Note, TheRight to a Speedy Trial, 20 STAN. L. REv. 476, 481(1966).

See also United States v. Fay, 313 F.2d 620 (2ndCir. 1963), where the court stated that the "generalallegations regarding [defendant's] inability to main-tain gainful employment or regarding his mentalanguish or that of his family [do not] present thetype of prejudice contemplated by the fourteenthamendment. It is not the purpose of the due processclause to defend an accused against public opprob-

The second factor which the Ewell Courtconcerns itself with, the ability of an accused todefend himself, is clearly applicable in a situa-tion where the prosecutor is hedging aboutwhether or not to initiate proceedings againstthe accused. Delay in initiating proceedingscarries with it the potential that the accused'sability to defend himself will be impaired,which is in direct contrast to the goals of aspeedy trial as set forth in Ewell.

The third reason the Lovasco Court sets forth,the subjective analysis of the prosecutor regard-ing whether to bring charges, involves human-itarian concerns and societal interests. Thisreason is totally one-sided, putting the interestsof society above thatof the accused, and ignor-ing the protection of the individual's rights.

Though Lovasco appears to have settled theissue of whether a due process claim for delayin prosecution requires a two prong conjunctiveor disjunctive test, the Court has provided littleor no guidance as to what constitutes a validclaim under either the prejudice or reasons forthe delay phase of the test:

In Marion we conceded that we could not deter-mine in the abstract the circumstances in whichpreaccusation delay would require dismissingprosecutions. More than five years later, thatstatement remains true. Indeed, in the interven-ing years so few defendants have establishedthat they were prejudiced by delay that neitherthe Court nor any lower court has had a sus-tained opportunity to consider the constitutionalsignificance of various reasons for delay. Wetherefore leave to the lower courts, in the firstinstance, the task of applying the settled princi-ples of due process. 43

Regarding the prejudice aspect of the test,the lower courts, in attempting to reach somesort of formulation or guideline, have beendivided. In the 1972 decision of United States v.Dukow,44 the Third Circuit held first of all, thatthe defendants must demonstrate substantialprejudice to have their indictment dismissed,and secondly, that their claim cannot merelyrest upon the passage of time and the dimming

rium." Id. at 624.43 97 S. Ct. at 2052."453 F.2d 1328 (3rd Cir. 1972). Even though there

was a 55 month delay between the time the SECinitiated proceedings against the defendants and theindictment, the court held that the defendants failedto demonstrate substantial prejudice. Id. at 1330.

1977]

SPEEDY TRIAL

of memories. In United States v. Chin,45 how-ever, the Second Circuit said that one mayassume prejudice to a defendant arising fromthe delay in bringing the case to trial.

In their concurring opinion in Dickey v. Flor-ida,46 Justices Brennan and Marshall discussedthe role of prejudice in speedy trial determina-tions:

[C]oncrete evidence of prejudice is often not athand. Even if it is possible to show that witnessesand documents once present are now unavaila-ble, proving their materiality is more difficult.And it borders on the impossible to measurethe cost of delay in terms of the dimmed mem-ories of the parties and available witnesses.

Because concrete evidence that their denialcaused the defendant substantial prejudice isoften unavailable, prejudice must be assumedor constitutional rights will be denied withoutremedy.4

In Dickey, the accused, convicted of armedrobbery in 1968 seven years after an arrestwarrant had been issued against him, appealedon the grounds that the delay had been soprejudicial as to make a fair trial impossible.During the seven year period, Dickey had beenimprisoned on an unrelated federal offenseand had repeatedly requested that the Floridastate courts secure his return for a trial orwithdraw the detainer for failure to providehim with a speedy trial. Reversing Dickey'sconviction, the Supreme Court held that therewas no reason for the delay in light of Dickey'sefforts to secure his right to a speedy trial, andthat there was substantial prejudice in that twowitnesses had died, another had become una-vailable, and police records of possible rele-vance had been lost or destroyed.48

45 306 F. Supp. 397 (S.D. N.Y. 1969). Where thedefendant was indicted for -income tax evasion onApril 10, 1962 for offenses occurring between 1955and 1956, and was not tried until 1969, the court saidthat one may assume prejudice from the delay. Butsee United States v. DeLeo, 422 F.2d 487 (1st Cir.1970), cert. denied, 397 U.S. 1037 (1970), where thecourt was "not persuaded that a presumption ofprejudice arising from the mere passage of time iseither the prevailing doctrine or the most effectiveway fully to assure the Sixth Amendment's speedytrial." Id. at 494.

46 398 U.S. 30 (1970).41 Id. at 53-55.

4 1 Id. at 36.

While the majority opinion of Dickey heldthat actual prejudice to the accused resultedfrom the delay, there is nothing in the opinionto show how the death of two potential wit-nesses, the unavailablility of another, and theloss of police records actually prejudiced thedefendants. What the majority appears to bedoing is establishing that prejudice must beassumed due to the inherent difficulty in prov-ing it. Thus, the mere allegation that twopotential witnesses had since died really doesnot prove prejudice, since there remains thequestion of whether the testimony of the de-ceased witnesses would have exculpated thedefendant. 49 Furthermore, in proving loss orlapse of memory, the accused is faced witheven a greater paradox, since any attempt toshow the materiality of certain evidence allegedto have been forgotten, clearly would provethat the evidence was not forgotten, and hencethe defendant would be in essence disprovinghis point in order to prove it.50

This discussion illustrates that the test forprejudice has never really been defined by theCourt. ReadingLovasco to its logical conclusion,however, warrants the determination that incontrast to Dickey, the Court will never assumeprejudice due to a prolonged investigative pe-riod. Lovasco's insistence upon a two prongconjunctive test breaks down if the Court as-sumes that element of the test. If prejudicewas assumed, all that would be necessary todismiss an indictment would be a considerationof the reasons for the delay. It would seemillogical for the Court to assume the first partof the two part formulation when it has ruledthat the formulation is conjunctive in nature.

49 See, e.g., Judge Henley's dissent in United Statesv. Barket, 530 F.2d 189 (8th Cir. 1976), where thedeath of six witnesses and a 47 month delay ininitiating prosecution was not enough, according toHenley, to demonstrate prejudice. This view wasreiterated in United States v. Lovasco, 532 F.2d 59,62 (8th Cir. 1976), where Henley again questionedthe finding of prejudice. See note 23 supra.

-o For a discussion of five factors to be consideredin determining whether or not a pre-arrest delay hasprejudiced an accused's defense, see Note, Pre ArrestDelay: Evolving Due Process Standards, 43 N.Y.U. L.REv. 722 (1968). The factors discussed are: (1) abilityof the defendant to re-collect, (2) the level of educa-tion of the defendant, (3) notice to the defendantthat he is under investigation, (4) failure to locatewitnesses and their potential loss of memory and (5)length of the delay. Id. at 734.

(Vol. 68

SUPREME COURT REVIEW

Relying on the above reasoning, it appearsthat Mr. Justice Marshall has shifted from hisopinion in Dickey, where he admitted that prej-udice to a potential defendant is almost impos-sible to prove and must be assumed, so as nowto require a potential defendant to prove thathe was prejudiced by the delay."1 Marshall evenpoints out that so few individuals have success-fully alleged prejudice that the Court has nothad a sustained opportunity to examine theother half of the test, reasons for the delay.Thus on one hand, while acknowledging theenormous difficulties an individual who hasnot been either arrested or indicted has inproving prejudice due to a prolonged investi-gative period, the Court still requires proof ofprejudice to overcome the first hurdle in thetwo prong test.

Another interpretation of Mr. Justice Mar-shall's apparent shift of opinion could be thatin certain instances prejudice can be assumeddepending on the length of the delay and thenrticilar offense aind in orher instances Jt

must be proven. This interpretation gains sup-port from Beavers v. Haubert,s2 where the Su-preme Court of the United States held that"[t]he right to a speedy trial is necessarily rela-tive. It is consistent with delays and dependsupon circumstances. ' s3 In Beavers, the appel-lant was indicted in New York and WashingtonD.C. and claimed his right to a speedy trial wasviolated when the prosecution removed theproceedings from New York to the District ofColumbia. The Supreme Court, in affirmingthe dismissal of the claim, held that the speedytrial right would not give the defendant theoption to claim it for one offense in order toprevent arrest for other offenses .54

If, as Marshall seems to contend, prejudiceis to be assumed in certain instances and not inothers, then clearly the latter would warrant

51 The facts relating to the allegation of prejudicein Dickey and Lovasco are almost identical. The de-fendants, in both cases, have alleged that because ofthe delay, material witnesses had become unavailable,either through death or other reasons. While inDickey the prejudice stemming from the deceasedwitnesses is assumed or has been considered to beproven by the majority, 398 U.S. at 38, the SupremeCourt in Lovasco has not given a definitive answerregarding prejudice, but questions the materiality ofthe witnesses. 97 S. Ct. at 2098-99.52 198 U.S. 77 (1905).1 Id. at87.5 Id.

the application of the two prong test. But thispredetermination of whether the two part for-mulation should be used appears to defeat thepurpose of the test for it demonstrates theinherent difficulties of the test's consistent ap-plication.

This approach also, in light of the lack oflegislative enactment on the question, wouldappear to leave the question of prejudice tothe discretion ofjudges without any guidelinesto satisfy the nonarbitrary approach of a dueprocess claim required under Rochin.n

One possible guideline for the maximumamount of time the government may delayprosecution without prejudice can be the stat-ute of limitations.56 The Supreme Court, inToussie v. United States,57 defined the purposeof a statute of limitations as:

[To limit exposure to criminal prosecution to acertain fixed period of time following the occur-rence of those acts the legislature has decidedto punish by criminal sanctions. Such a limita-tion is designed to protect individuals fromhaving to defend themselves against chargeswhen the basic facts may have become obscuredby the passage of time and to minimize thedanger of official punishment because of acts inthe far-distant past. Such a time limit may alsohave the salutory effect of encouraging lawenforcement officials promptly to investigatesuspected criminal activity."

In United States v. Ewell,59 the Court also notedthat "the applicable statute of limitations ...is usually considered the primary guaran-tee against bringing overly stale criminalcharges ."60

Although there were hints that the courtswould use the statute of limitations as theirguide in fifth amendment speedy trial deter-minations, this issue was put to rest in Marion,which recognized the statute of limitations asan upper boundary, but also acknowledged

5 See note 36 supra and accompanying text.56 "Except as otherwise expressly provided by law,

no person shall be prosecuted, tried or punished forany offense, not capital, unless the indictment isfound or the information is instituted within fiveyears next after such offense shall have been commit-ted." 18 U.S.C. § 3282 (1954) (Offenses; not Capital).

57 397 U.S. 112 (1970).5Id. at 114.59 383 U.S. 116 (1966).60 Id. at 122.

1977]

that prejudice can result if the delay was withinthe applicable statute of limitation.61

In their concurring opinion in Dickey,62

Brennan and Marshall also point out that thestatute of limitations is subject to change at thewhim of the legislature, that all crimes do nothave applicable statute of limitations, and thatthe applicable statutes may not supply an indi-vidual his minimum rights to a speedy trial asguaranteed by the Constitution.

An examination of the second part of thetwo prong formulation, the inquiry into thereasons for the delay, reveals that the Courthas given little or no guidance as to whatconstitutes an effective claim. The LovascoCourt, in looking to the reasons for the delay,has apparently incorporated the dicta in Mar-ion; one must consider whether "the delay wasan intentional device to gain tactical advantageover the accused."6 3 Whether Lovasco has ex-panded upon the Marion formulation, how-ever, is not clear, and is open to serious debate.

In a footnote to the majority opinion, theCourt in Lovasco makes reference to the brieffiled on behalf of the government, which con-cedes that "[a] due process violation might alsobe made out upon a showing of prosecutorialdelay incurred in reckless disregard of circum-stances, known to the prosecution, suggestingthat there existed an appreciable risk that delaywould impair the ability to mount an effectivedefense." 64 While the Court did not have todecide a recklessness issue in Lovasco, it can beinferred from the inclusion of this language inthe majority's opinion that the Court might bewilling to entertain a broader concept of thesecond part of the test than that which wasformulated in Marion.

To understand whether the reformulationin Lovasco of the second prong of the testexpanded the dicta in Marion, it is essential tofocus on the language in Marion. It is apparentthat the Court has given little or no guidanceas to what it means when it speaks in terms ofintentional delay. In United States v. Frumento,65

the court said that "[m]ere conscious knowledgeof the delay on the part of the government is

61 404 U.S. at 324.1 398 U.S. at 47 (Brennan, Marshall, JJ., concur-

ring).404 U.S. 324 (1971).

64 97 S. Ct. at 2051-52 n.17.405 F. Supp. 23 (E.D. Pa. 1975).

not enough to satisfy the requirement of badfaith and purposeful delay in the pre-indict-ment, pre-arrest period."'66 This line of reason-ing appears to follow Marion in that somethingmore than knowledge is necessary in order forthe defendant to show an intentional delay bythe prosecution. Nevertheless, the questionarises as to whether the language of Marionprecludes a fifth amendment claim for delay inprosecution brought about by the negligenceof the government.

A footnote to the majority's opinion in Lo-vasco67 sheds some light on this matter, in thatit can be inferred that the Court will entertaina claim based upon recklessness. However, thefootnote is unclear as to ordinary negligence.

In their concurring opinion in Dickey v. Flor-ida,6 Brennan and Marshall discuss delay inprosecution brought about by the negligenceof the government:

A negligent failure by the government to ensurespeedy trial is virtually as damaging to the inter-ests protected by that right as an intentionalfailure; when negligence is the cause, the onlyinterest necessarily unaffected is our commonconcern to prevent deliberate misuse of thecriminal process by public officials.

Based on this concurring opinion, it wouldappear that Marshall (and Brennan) wouldentertain a fifth amendment due process claimbased upon negligence.

Nevertheless, Marshall in Lovasco purportsto follow the Court in Marion, and whetherthis represents a departure from the intentionaltest of Marion is at best still unclear. It can alsobe argued that this represents a signal fromthe Court, that the formulation of the secondaspect of the test is still evolving, perhaps tomore accurately reflect the totality of the cir-cumstances underlying the delay.

Part of the confusion about what the precisetest is can be demonstrated by United States v.Shaw," a post-Lovasco case in which the FifthCircuit broadly interpreted the language inLovasco in focusing on "whether the prosecu-tion's actions violated 'fundamental conceptions

6 Id. at 28.67 97 S. Ct. at 2051-52 n.17 .68 398 U.S. 39, 51-52 (Brennan, Marshall, JJ.,

concurring).69 555 F.2d 1295 (5th Cir. 1977).

[Vol. 68SPEEDY TRIAL

SUPREME COURT REVIEW

of justice' or the 'community's sense of fairplay and decency. ' ' 70 In Shaw, the defendantwas indicted twenty-eight months after his al-leged offense of defrauding the telephonecompany of money due for long distance calls.The prosecution attempted to explain the delayon the basis of the need to verify incriminatingevidence and the low priority of the case withregard to the allocation of prosecutorial re-sources. The court, notwithstanding the claimof prejudice by the defendant, affirmed theconviction because the delay was "not such adeviation from elementary standards of fairplay and decency or so inimical to our funda-mental conceptions of justice as to deprivedefendant of due process of law in violation ofthe Fifth Amendment."

71

The language of Lovasco which Shaw relieson to reach its decision refers to the LovascoCourt's notion that a prosecutor would not bedeviating from "fair play and decency" by de-laying an indictment until he is confident ofestablishing guilt beyond a reasonable doubt.The language Shaw relies on is not the testespoused in Lovasco, but instead appears to bean amorphous arbitrary concept that can beused to justify any delay. The difficulty whichthe Shaw Court has apparently encountered ininterpreting Lovasco and the relevant law interms of pre-arrest, pre-indictment delay, isrepresentative of the confusion and the lack ofguidance the courts have in these situations.

In addition to the Supreme Court's lack ofguidance regarding the application of the "rea-sons for delay" aspect of the test, the Court hasyet to determine conclusively who has the bur-den of proof regarding this issue. The practi-calities of the situation, as shown by Lovasco,may render the burden of proof issue moot,however. In Lovasco, the district court foundthat the majority of the information concerningthe crime was gathered during the first monthof the delay and very little during the nextseventeen months.7 2 The Supreme Court, nev-ertheless, sanctioned the delay on the basis thatthe Government was awaiting results of addi-tional investigations. 3 Thus, for the potentialdefendant to establish that the delay was partof a tactical ploy on the part of the Government

70 Id. at 1299.71 Id.72 97 S. Ct. at 2047.73 Id. at 2051-52.

is almost an impossible task.7 4 Any allegationsas such can be countered by the prosecutionclaiming that the delay was necessary to furtherthe investigation against other potential wrong-doers. Since prosecutorial records, which mayor may not be discoverable may not reflect theintention of the prosecutor in delaying pro-ceedings against the accused, the defendant isleft at the mercy of the ethical conduct of theprosecution in determining whether there wasa legitimate justification for the delay.

Mr. Justice Stevens, in his dissenting opinionin Lovasco,7 5 clearly demonstrates the potentialfor abuse in such a situation. Even though thelower courts found no justification for the delayin handing down the indictment, in Lovasco,the Court, in a very unusual display of review-ing the findings of fact, reversed, stating thatthe delay was caused by efforts of the prosecu-tion to identify others involved in the offense.7 6

By doing so', Stevens points out, the Court hasin essence removed the "constraints on theprosecutor's power to postpone the filing offormal charges to suit his own convenience. 77

The Lovasco opinion can also be criticizedbecause in examining the practicality of thetwo prong formulation in determining whetherpre-indictment or pre-arrest delay should war-rant dismissal of an indictment, the questionarises as to whether the two phases of the testare distinct enough, so as to be treated asseparate entities. Under the Marion formula-tion, it is very difficult to imagine a situation inwhich an accused can successfully demonstratethat the delay was caused by the Governmentin order to gain a tactical advantage, and yetfail to prove prejudice. By the very nature ofthe proof necessary to demonstrate the former,the latter would be proven. Nevertheless, theconverse of this, as illustrated by Lovasco, is nottrue. Thus, a defendant, by establishing preju-dice, will not prove the proposition that theGovernment engaged in the delay for tacticalpurposes. Expanding this reasoning to its logi-cal conclusion would warrant the determination

74 Moreover, for the view that forcing a prosecutorto turn over records to the accused will have achilling effect as to what evidence is ultimately re-corded on paper, see United States v. United StatesGypsum Company, 383 F. Supp. 462 (W.D. Pa. 1974).75 97 S. Ct. 2053 (Stevens,J., dissenting).76 97 S. Ct. at 2051. See Berenyi v. Immigration

Director, 385 U.S. 630, 635 (1967).77 97 S. Ct at 2054 (Stevens,J., dissenting).

1977]

that the two prong conjunctive test is unneces-sary and that only the tactics the Governmentengaged in should be considered.

Nevertheless, if one interprets Lovasco asextending the Marion formulation by examin-ing the reasons for the delay, then the argu-ment can be presented that the two prong testis necessary. Under such an approach, consid-erations which have little or no bearing onprejudice may be determinative of a valid claimunder the second part of the test.

It is also interesting to note that prejudiceand reasons for the delay, the two aspects of afifth amendment due process claim, representtwo of the four requirements the Court has setforth in examining a sixth amendment claim.In Barker v. Wingo,7

8 the Court was presentedwith a sixth amendment speedy trial claimbased upon a five year delay between arrestand trial. In determination of the claim, theCourt identified four factors which should beassessed in determining whether a defendanthas a valid sixth amendment claim. These fac-tors are: (1) length of delay, (2) the reasons forthe delay, (3) the defendant's assertion of theright and (4) prejudice to the defendant."

Contrasting the Barker formulation with thetwo prong test of Marion and Lovasco, it appearsthat the courts will give the sixth amendmenttest a more liberal construction since they cantake into account more factors and considera-tions than under the fifth amendment dueprocess test. For example, the Barker Courtmentions delay caused by the negligent actionof the prosecutor under the second factor.(' Itis still debatable though, whether negligencewould have any relevance under the fifthamendment test." The Court in Barker alsostates that:

We regard none of the four factors identifiedabove as either a necessary or sufficient condi-tion to the finding of a deprivation of the rightof speedy trial. Rather they are related factorsand must be considered together with suchother circumstances as may be relevant. In sum,these factors have no talismanic qualities; courtsmust still engage in a difficult and sensitivebalancing process. But, because we are dealingwith a fundamental right of the accused, thisprocess must be carried out with full recognition

78 407 U.S. 514 (1972).7Id. at 530.

80 Id. at 531.s1 See notes 64 & 68,supra, and accompanying text.

that the accused's interest in a speedy trial isspecifically affirmed in the Constitution.

8 2

Hence, rather than requiring a conjunctive testsuch as in Marion and Lovasco, the Barker Courthas taken the approach of encompassing thetotality of circumstances in its determination.Whether such an approach should be followedfor fifth amendment claims also is open toserious debate. Such an approach was used inUnited States v. Mays,8 3 a pre-Lovasco case. TheNinth Circuit rejected both the conjunctive anddisjunctive two prong test and used an ap-proach that balances three different factors inreaching its determination. With the exceptionof the defendant's assertion of his right to aspeedy trial, the factors are identical to thoseespoused in Barker.84 In Mays, the defendantwas indicted four and one half years after theoffense of misappropriated bank funds. Thecourt, in reversing the trial court's dismissal ofthe indictment, found that the accused failedto adequately prove prejudice by merely statingthat potential witnesses became unavailable.

Although it is not clear whether the court inMays actually reached its decision by balancingthe factors it listed, it nevertheless representsan alternative fifth amendment approach tothe Marion, Lovasco formulation. Part of theproblem in determining how the court in Maysreached its decision stems from the notion thatthe two prong test may actually encompass abalancing test similar to the one espoused inBarker. As already noted,8 6 for the accused toprove prejudice, it is a very onerous task.Courts, though not expressly admitting thatthey have weighed various factors in their de-

82 404 U.S. at 533 (1972).1 549 F.2d 670 (9th Cir. 1977). See note 17,supra.1 549 F.2d at 677. With respect to the right to a

speedy trial, during the pre-arrest, pre-indictmentstage it is apparent that the defendant's assertion ofhis right to a speedy trial is irrelevant. The accusedat this time may not even know he is the focus of aninvestigation and even if he is aware of such proceed-ings, an indictment or arrest warrant may never beissued. Thus, at this point in time, any assertion ofthe right to a speedy trial will be too premature andspeculative to have any meaning.

8 In a strong dissent to the opinion, Judge Elystated that prejudice based upon missing witnessesrelates to the materiality of their connection to theoffense charged but "the burden of summoningaffadavits from buried bodies or dimmed minds willbe insurmountable." Id. at 682 (Ely, J., dissenting).

86 See text accompanying notes 44-63.

SPEEDY TRIAL [Vol. 68

SUPREME COURT REVIEW

termination of prejudice, are sometimes in-clined to look at the length of the delay andthe reasons for the delay in their overall assess-ment.

8 7

Another aspect of Lovasco which the Courthas failed to deal with adequately concernsRule 48(b) of the Federal Rules of CriminalProcedure,88 which allows for dismissal of anindictment if there is unnecessary delay sur-rounding the proceedings. In United States v.Marion, the Court held that Rule 48(b) is"clearly limited to post-arrest situations."8' 9

While not addressing directly the issue of whenthe rule attaches, a district court in United Statesv. Navarre90 shed some light on the test forapplying the rule by distinguishing between amotion to dismiss based upon a constitutionalright and one grounded upon a rule:

Dismissal based upon a constitutional right re-quires stricter proof than dismissal based onnonconstitutional grounds under a Rule. Inorder for the Court to dismiss for failure togrant a speedy trial under the Sixth Amend-ment, defendant must prove the following: (1)length of delay: (2) reason for delay: (3) preju-dice to defendant; and (4) no waiver by defend-ant ... For dismissal on a non-constitutionalground under Rule 48(b), the only factor whichthe defendant must prove is that the delay wasunnecessary.9 1

Focusing on this difference of the standardof proof between a rule and a constitutionalguarantee, it is apparent that some determina-tion is necessary in order to establish guidelinesregarding when the courts should apply eitherin relation to a speedy trial claim. If the Courtin Marion is correct that Rule 48(b) does notbecome applicable until a post-arrest situation,then clearly the sixth amendment speedy trialprovision would also be applicable to the post-arrest period, and the courts will face the

8 See note 50supra.a See note 9 supra., 404 U.S. at 319. See also Nickens v. United States,

323 F.2d 808 (D.C. Cir. 1963), Harlow v. UnitedStates, 301 F.2d 361 (5th Cir. 1962), United States v.DeTienne 468 F.2d 151 (7th Cir. 1971), cert. denied,410 U.S. 911 (1973).90 310 F. Supp. 521 (E.D. La. 1969). In Navarre,

the defendant was arrested on November 2, 1967and indicted on January 1, 1969 for an offensealleged to have occurred October 31, 1967.

91 Id. at 522. See also United States v. McKee, 332F. Supp. 823 (D. Wyo. 1971).

dilemma of deciding via which route to judge aspeedy trial claim.

To rectify this potential area of confusion,two explanations are possible as to why bothRule 48(b) and the sixth amendment speedytrial provision are concurrently applicable withdifferent standards of proof. First of all, it ispossible that the Navarre court is in error whenit distinguished between a rule and a constitu-tional amendment.9 2 This however, is highlyunlikely in view of the history of the rule.According to Moore's Federal Practice:

Rule 48(b) is a codification of the inherent powerof a court to dismiss a case for want of prosecu-tion. The Rule also implements the right of anaccused to a speedy trial under the sixth amend-ment. But it is not entirely coextensive with thatright. While most dismissals for delay in prose-cution are grounded on the constitutional pro-vision, Rule 48(b) serves a somewhat broaderpurpose and these are instances of dismissalinvolving no denial of constitutional rights.3

The second explanation, and the more plau-sible one, questions the validity of the MarionCourt's determination that Rule 48(b) attachesonly in a post-arrest situation. Perhaps prior toarrest and indictment, and before the sixthamendment right to a speedy trial attaches,Rule 48(b) of the Federal Rules of CriminalProcedure should govern the determination ofa speedy trial violation rather than the fifthamendment due process clause. Under Rule48(b), with its less stringent burden of proofrequirements, a potential defendant wouldhave a more realistic opportunity to validate aspeedy trial claim than under the stricter dueprocess grounds. It must be remembered, thatunder Lovasco's two prong test, the requisiteamount of proof necessary to establish a dueprocess claim is extremely high. This difficultyis increased when one considers that a futuredefendant may not even be aware of the initialdelay in the proceedings against him, and as aconsequence, fails to keep an account or recordof material events or witnesses which may even-tually prove the prejudicial effect of the delay.

92But see United States v. Ward, 240 F. Supp. 659(W. D. Wis. 1965) ("Rule 48(b) is merely a contempo-rary enunciation of the Constitutional right to aspeedy trial.") (quoting United States v. Palermo, 27F.R.D. 393 (1961)).

93 8B MooRE's FED PRACTICE § 48.03.

19771

In order to eliminate some of the confusionin the courts regarding the application of thefifth amendment, perhaps what is required isan extension of the Speedy Trials Act of 19749to the pre-arrest and pre-indictment stage. TheAct, which at present only pertains to the post-arrest or post-indictment stage of a prosecu-tion, sets forth various time limits in which anaccused must be brought to trial. By extendingthe Act to include the pre-indictment, pre-ar-rest stage, the legislature would be enactingthe much needed guidelines for the courts tofollow in making a determination of just howmuch delay is tolerable in the investigativeperiod. Furthermore, the guidelines would bea more realistic determination than the statuteof limitations which some courts had adheredto as their guide before Marion.9 5

In formulating such guidelines, under theSpeedy Trials Act, a balance must be struckbetween societal interests, which the Court hasintently focused upon, and individual rights,which it has appeared to ignore. This is, ofcourse, much easier said than done. One sug-gestion may be that the burden of proof re-quired should be determined as inversely re-lated to the length of time of the delay, due tothe increasing presumption of prejudice as timeelapses. Thus, for example, during the first sixmonths of an investigation, the strict due proc-ess conjunctive test could be applied, but afterthe six months, a more lenient test, such asRule 48(b), would be applicable. If the legisla-ture would enact such legislation for each ofthe various crime categories, e.g. felony ormisdeameanor, then the courts would at leastbe able to establish some uniformity in theirdeterminations.

In his dissent in United States v. Lovasco, 9'Mr. Justice Stevens indicated that the majority'sopinion concerning the pre-arrest, preindict-ment period, as applied to the constitutionalright to a speedy trial, would have the effect ofundermining the Speedy Trials Act of 1974.While Congress never intended that the Actshould apply to the pre-indictment, pre-arrest

94 18 U.S.C. § 3161 (1975 amend.). The Act setsforth various time limits between arrest, indictmentand trial.

91 See notes 58 & 59supra and accompanying text.9 97 S. Ct. at 2054 (Stevens, J., dissenting).

stage of an investigation, 97 Stevens' point iswell founded. Once a prosecutor files an indict-ment or has an individual arrested, under theSpeedy Trials Act, that individual must bebrought to trial within a certain period of time.With this in mind, a prosecutor may deliber-ately delay indictment or arrest in order to tollthe time limit imposed via the Speedy TrialsAct. The only recourse, available to an individ-ual in this situation, would then be the stringenttwo prong test required under Lovasco. Hence,the Speedy Trials Act has and will create9"increasing pressure for the courts to deal withpre-indictment and pre-arrest delay. Withoutthe appropriate guidelines available, the courtswill continue to face enormous discontinuityand confusion in attempting to interpret andapply the relevant law.

The Supreme Court granted certiorari inUnited States v. Lovasco to consider the variouscircumstances in a pre-arrest, pre-indictmentsituation that would require dismissal of anindictment due to delay.9 The Court pur-ported to clear up some of the confusion con-cerning the due process standards evolved inMarion by making it clear that a two partconjunctive test is required under the fifthamendment. The Court, however, has side-stepped the issues of what each of these prongsof the test entails and to whom, and to whatextent, the burdens of proof falls. The Courthas also, by not explicitly reviewing each aspectof the test, left some doubt as to the future ofMarion's standards of prejudice and the inten-tional tactics engaged in by the government.

With the implementation of the SpeedyTrials Act of 1974, additional pressure will bebrought upon the courts to make determina-tions regarding prolonged delay during theinvestigative period. Without appropriateguidelines to aid in this determination, theoutlook for uniformity and consistency withinthe courts appears bleak. For now, the courtsmust attempt to interpret the two part conjunc-tive test of Lovasco, requiring a showing ofprejudice to the accused and a consideration ofthe reasons for the delay.

97 120 CONG. REc. 41618 (1974).98 18 U.S.C. §§ 3163, 3164.9 97 S. Ct. at 2046.

SPEEDY TRIAL [Vol. 68