¶1concurring:
¶2I concur in the result.
¶3The lower court dismissed all charges and ordered both defendants discharged on the ground that the 31 month delay between the crime and the defendants’ arrest violated due process. Defendants, who knew immediately after the incident that they might be subject to criminal prosecution, and were themselves complainants in a cross-prosecution against the complainant here, established, at most, that witnesses’ recollections were dimmed. This is a patently inadequate basis for dismissal.
¶4The primary guarantee against bringing overly stale criminal charges is the statute of limitations; the Due Process Clause plays a limited role in protecting against prejudicial delay. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).
In United States v. Marion, 404 U.S. 307 [92 S.Ct. 455, 30 L.Ed.2d 468] (1971), this Court considered the significance, for constitutional purposes, of a lengthy preindictment delay. We held that as far as the Speedy Trial Clause of the Sixth Amendment is concerned, such delay is wholly irrelevant, since our analysis of the language, history, and purposes of the Clause persuaded us that only ‘a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge . . . engage the particular protections’ of that provision. Id., at 320. We went on to note that statutes of limitations, which provide predictable, legislatively enacted limits on prosecutorial delay, provide ‘ “the primary guarantee against bringing overly stale criminal charges.” ’ Id., at 322, [92 S.Ct. at 464] quoting United States v. Ewell, 383 U.S. 116 [86 S.Ct. 773, 15 L.Ed.2d 627] *257(1966). But we did acknowledge that the ‘statute of limitations does not fully define [defendants’] rights with respect to the events occurring prior to indictment,’ 404 U.S. at 324, [92 S.Ct. at 465] and that the Due Process Clause has a limited role to play in protecting against oppressive delay.
‘[W]e need not . . . determine when and in what circumstances actual prejudice resulting from preaccusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution.’ Id., at 324-325 [92 S.Ct. at 465-66] (Footnotes omitted).
Thus Marionmakes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.
¶5Id. at 788-90, 97 S.Ct. at 2047-48.