Pre-Accusation Delay Due Process Motion

June 3, 2015

A pre-accusation delay motion is a non-statutory motion brought forth by the defense in the event there has been an unreasonable delay in filing formal charges against the accused which impacted his or her ability to defend the charges. Pre-accusation delay (hereinafter “Due Process Motions”) are common among cold-case murders where a criminal defendant is formally brought up on charges years if not decades later. For instance, investigators may not have enough evidence to legally effectuate an arrest and the case goes “cold” until years later when DNA evidence links the original suspect to the murder. Due Process motions are brought to protect a criminal defendant for unfair delays which makes putting forth a defense impossible. But note however, that Due Process motions are applicable to all criminal offenses even if the delay is just a few months or even weeks depending on the circumstances – e.g., burglary, domestic violence, DUI.

According to People v. Catlin, the California Supreme Court has reiterated the three-prong test for determining whether a case should be dismissed on pre-accusatory prosecutorial delay stating, “Delay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay. [Citations.]” Thus, a defendant must first demonstrate he or she has been prejudiced by the delay, and upon demonstrating even a minimal amount of prejudice, the burden shifts to the prosecuting agency to give a reasonable justification for the delay. The court then weighs both sides and determines whether the case should proceed or dismiss completely.

Prejudice can be demonstrated by faded memories of witnesses, death of potential or pertinent witnesses, and loss or destruction of physical evidence. For instance, if video surveillance captures someone in a grocery store at the time of a murder on the other side of town, and a subsequent delay in bringing charges against person led to the destruction of this pertinent video evidence, the defendant has been prejudiced. In addition, once prejudice has been established, the prosecutor must argue a “reasonable justification” for the delay. Particularly, claims of “investigative delay” almost always justify a delay in filing formal charges (i.e., DNA evidence or searching for additional witnesses) whereas neglectful conduct will never warrant a reasonable justification. For instance, a case sits on a prosecutor’s desk for years before they decide to review it to file charges. Accordingly, the judge will then conduct a balancing test to determine whether a criminal defendant has suffered a deprivation of due process of law and either dismiss or allow the prosecution to continue with their case.

Example: Dan was suspected of committing murder in Los Angeles in 1979. Because there were no eyewitnesses to the homicide and in 1979 there was a lack of scientific evidence, the case went cold. In 1990, the case was re-opened by the LAPD and witnesses were re-interviewed. No further evidence was provided to legally effectuate Dan’s arrest. In 1995, police officers question Dan about the homicide where Dan reveals pertinent evidence (incriminating statements to the police) but still not sufficient to warrant a formal arrest. In 2002, the police re-open the physical evidence and submit it for DNA testing. Due to backed up formal DNA testing time, results were unable to be matched until 2015 which came back positive to Dan. The prosecutor reviews the case and files formal murder charges against Dan for a homicide occurring 36 year prior. Dan’s defense attorney will file a motion to dismiss the case under deprivation of due process claiming the delay of 36 years prejudiced his ability to defend the charges because material witnesses are deceased or unavailable.

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