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Prejudice and pre-indictment delay

So you and your woman have been going through some tough times, and she goes down to the police station and lays a rape charge on you.  Says it happened right there in your friend's apartment:  you pushed her into the bedroom and forced yourself on her, while a couple of your friends were sitting there in the living room the whole time. 

So you bring the friends in, they testify they never saw anything of the sort, and also get across the idea that you've had a very stormy relationship with this woman, and she's got some axes to grind.  Your investigator checks friends of hers to see if she's said anything inconsistent with her story.  The cops came and took pictures of the apartment, which shows there's nothing out of the ordinary, no overturned vases, broken furniture.  It's an eminently defensible case.

Except for one thing.  The charge is that you did this twenty years ago -- exactly twenty years ago, to be precise.  The one friend's dead, you have no idea where the other one is.  You don't know who her friends were back then, and even if you did, the chances of them remembering anything are zilch, the cops never came and took pictures...

A couple years ago, the police here discovered they had about 3,000 rape kits sitting in their evidence room which had never been sent out for testing.  They did, and the above scenario has played out in a number of courtrooms as DNA hits come back on rapes supposedly committed 10, 15 and even 20 years ago.

No, it's not a speedy trial violation -- your right to speedy trial doesn't begin until you've been charged with a crime -- but the courts have held that an undue delay in charging you is a violation of your right to due process.

The test to determine that, though, if applied strictly, makes winning that argument almost impossible.  First, you have to show actual prejudice.  If you do, the burden then shifts to the State to prove a justification for the delay, and then that justification is weighed against the prejudice to you.

So what's "actual" prejudice?  It's got to be more than the claim that witness memories would have dimmed with the mere passage of time.

How much more?  That's where we run into problems:  there are cases which hold that the defendant must specifically demonstrate the exculpatory value of lost witnesses or other evidence. 

That's understandable if you're talking about potential witnesses, because you could make that claim in any case; it's purely speculative that there might have been witnesses who could've been found back then who might have given exculpatory testimony.

But there are some cases which suggest that not only must the defendant identify the witnesses he could have called, he has to specify what they would have testified to and how it would have helped him.  I've got an appeal now which is identical to the case above, except the missing witnesses are the defendant's mother (dead) and brother (gone).  The State's claiming that because the defense lawyer admitted he didn't know what the mother would testify to, the defendant can't show prejudice.

That's ridiculous.  Of you course you can't tell exactly what the mother would have testified to, because she was never asked.  When she died, she didn't even know that her son would eventually be accused of the crime.  Even though they had his name, the police never came around or called to interview him.  Had they done so, the mother could have presented what she knew.  Only the police department's sloth kept that from happening.

Which gets me to the second part of the problem I have with the current law on pre-indictment delay.  As I mentioned, once you show actual prejudice, the State has to present its justification for the delay, and that has to be measured against the prejudice.  Why isn't the lack of justification for the delay factored into the first step of the analysis?  In fact, why are there two steps at all? 

To be sure, there may justification for the delay.  If the alleged victim refuses to cooperate, there's nothing much the police can do.  Sometimes, cases are delayed because it's not until much later, through a DNA hit, that the defendant is identified.  (And then, because the defendant's DNA didn't enter the database until much later, not because the police didn't bother sending the rape kit in for testing.) 

It's common to think that delay hurts the prosecution, but not in these types of cases.  To be sure, if it's a "stranger rape," it's not a big deal, because the DNA is usually going to be dispositive. But that's not true of consent cases.  There, the prosecution has the victim.  Sure, the doctors and nurses don't remember anything about what happened, but the medical records are still there, and the victim's narrative is coming in as an exception to the hearsay rule.  It boils down to a "he-said/she-said" case, or more accurately, a "she-said" case:  the defendant won't be testifying (because his record will come in; the DNA hit, remember?), and there are no witnesses corroborating his testimony who are still around or have the foggiest clue as to what happened back then.

These prosecutions put a defendant at an extreme disadvantage.  It's one thing to have a "cold case," where the police reinvestigate the crime and find new evidence.  It's another where the only reason for the delay is because the police did bucksquat:  the detective in my case drove past the victim's house twice, and when she wasn't there, put "wrong address" -- even though it was the same address the police had taken her and her mother from the hospital six days earlier -- and closed the file.  The rape kit sat in the evidence locker for exactly eighteen years.

That's not fair.

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This is my last post for a couple of weeks.  I'm taking a vacation, deserved or not.  I'll be back here September 15.

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