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NCJRS Abstract

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NCJ Number: 52258 Find in a Library
Title: PREINDICTMENT DELAY IN THE EIGHTH CIRCUIT
Journal: DRAKE LAW REVIEW  Volume:27  Issue:1  Dated:(1977/78)  Pages:110-136
Author(s): K S BEAN
Corporate Author: Drake University
Law School
United States of America
Date Published: 1978
Page Count: 27
Sponsoring Agency: Drake University
Des Moines, IA 50311
Format: Article
Language: English
Country: United States of America
Annotation: PREJUDICE AGAINST THE DEFENDANT BECAUSE OF PREINDICTMENT OF PREACCUSATORY DELAY IS CONSIDERED IN RELATION TO THE SCOPE OF THE DUE PROCESS CLAUSE IN THE FIFTH AMENDMENT TO THE CONSTITUTION.
Abstract: DUE PROCESS UNDER THE FIFTH AMENDMENT HAS BEEN INTERPRETED TO INCLUDE THE PROTECTION OF CITIZENS FROM FROM UNFAIR TRIALS AS A RESULT OF PREINDICTMENT DELAYS IN PROSECUTION, REGARDLESS OF THE FACT THAT THE INDICTMENT IS WITHIN THE STATUTE OF LIMITATIONS. RECOGNITION OF THE NEED FOR PREINDICTMENT DELAYS CAME EARLY IN DECISIONS OF THE EIGHTH CIRCUIT. THREE PREINDICTMENT DELAY CASES EMERGING FROM THE EIGHTH CIRCUIT HELP IN SOME WAYS TO PROVIDE BETTER GUIDANCE AS TO TYPES OF PREJUDICE THE COURT WILL CONSIDER SUFFICIENT TO HAVE IMPAIRED THE ABILITY OF INDIVIDUALS TO DEFEND THEMSELVES. THEY ALSO INDICATE THE WIDE RANGE OF FACTORS THE COURT IS WILLING TO TAKE INTO ACCOUNT IN ITS APPLICATION OF THE BALANCE TEST. THE EIGHTH CIRCUIT HAS GENERALLY USED THE BALANCE TEST WHEN THERE IS AN AFFIRMATIVE SHOWING OF PREJUDICE RESULTING FROM A DELAY SUFFICIENT TO INTERFERE WITH THE DEFENSE PROCESS. IN THE PROCESS OF DETERMINING PREJUDICE, THE COURT WILL CONSIDER SUCH FACTORS AS THE APPLICABILITY OF THE STATUTE OF LIMITATIONS, THE DISTRIBUTION OF THE BURDEN OF PROOF, THE STRENGTH OF THE GOVERNMENT'S CASE, AND OBJECTIVE CIRCUMSTANCES OF A DEFENDANT'S POSITION. PREJUDICE MUST BE VIEWED IN LIGHT OF MANY FACTORS AND THEN BALANCED AGAINST THE REASONABLENESS OF GOVERNMENTAL DELAY. THERE ARE SITUATIONS IN WHICH PREINDICTMENT DELAYS ARE NECESSARY OR INADVERTENT. SUPPORTING CASE LAW IS CITED. (DEP)
Index Term(s): Defense; Discrimination; Indictment; Prosecution; Right to Due Process
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