State v. Midell

¶1(concurring). I agree with the majority that the delay in the prosecution of this case did not amount to a denial of due process. The majority points out that a statute of limitations is not the sole standard by which delay between offense and arrest is to be measured, but in doing so it fails to state any criteria for determining when a delay (less than that permitted by the statute of limitations) in prosecution amounts to a denial of due process.

¶2I would adopt standards similar to those set forth in Bond v. United States.1 In that case the court determined that in deciding whether there has been a denial of due process the court should weigh (1) the amount of delay involved, (2) who caused the delay, (3) whether the delay was purposeful, i.e., did the government make “ ‘a deliberate choice for a proposed advantage, which caused as much oppressive delay and damage to the defendant as it would have caused if it had been made in bad faith/ ” 2 (4) was the defendant prejudiced, and (5) was there a waiver by defendant.

¶3In applying these criteria to the facts before us, I concur in the holding of the majority that there was no denial of due process.

¶4I am authorized to state that Mr. Chief Justice HALLOWS joins in this opinion.