Balancing, Not Bad Faith: Connecticut Adopts a Barker-Style Test for Prearrest Delay Due Process Claims

Introduction

In State v. McFarland (Second Concurrence), Supreme Court of Connecticut (Sept. 2, 2025), the court confronts a recurring and increasingly consequential question in the era of “cold cases” and advancing forensic technologies: what constitutional standard governs a claim that a decades-long prearrest delay deprived a defendant of a fair trial? The court holds that, under the Connecticut Constitution, due process challenges to prearrest (preindictment/preaccusation) delay are evaluated under a flexible balancing test rather than the stricter, two-pronged “bad faith” test applied by most federal courts under the federal Due Process Clause.

The parties and posture are straightforward. Willie McFarland was prosecuted for the 1987 murders of Fred and Gregory Harris after a 32-year hiatus, catalyzed by DNA technology that emerged decades after the crime. McFarland argued that the delay caused substantial trial prejudice—faded memories, deceased exculpatory witnesses, and degraded forensic evidence—and violated his due process rights. The trial court rejected dismissal, and the Supreme Court affirmed. Justice Ecker’s concurrence (joined by Justice McDonald as to Part I) elaborates the state constitutional analysis and offers practical guidance on evidentiary mitigation where delay-induced prejudice intersects with hearsay rules.

Summary of the Judgment

• The court confirms that, under the Connecticut Constitution (art. I, §§ 8 and 9), claims that prearrest delay violates due process are governed by a balancing test, not a rigid two-pronged bad-faith test.
• Core framework:
  • The defendant must first prove actual and substantial prejudice caused by the delay.
  • Upon such a showing, the burden shifts to the state to explain and justify the delay.
  • The court then balances prejudice against the state’s justifications to decide whether the delay offended fundamental fairness.
• Applying this framework, the court assumed arguendo that McFarland suffered prejudice but held that the state’s justification—investigative delay due to later-developed DNA technology—outweighed any prejudice. No due process violation was found.
• On evidentiary issues, the court did not disturb the trial court’s exclusion of hearsay statements from a deceased witness. Justice Ecker, however, underscores that, in appropriate cases, trial courts may consider evidentiary accommodations to mitigate delay-caused prejudice where admissibility is in a gray area.

Analysis

Precedents Cited and Their Influence

The court’s state constitutional analysis is anchored in Connecticut precedent and a sophisticated synthesis of federal and sister-state authority.

• State v. Hodge (1966): Decades before the U.S. Supreme Court’s Marion/Lovasco line, Hodge embraced a totality-of-the-circumstances approach to prearrest delay. It identified the very factors at the core of today’s holding: length of delay, reasons for delay, prejudice, and timely assertion. Hodge also stressed that bad faith is not an absolute precondition; reasonable investigative delay often is justified, and statutes of limitation (where applicable) provide a “backstop.”
• State v. Morrill (1985): Construing the federal Due Process Clause, Morrill read United States v. Marion (1971) and United States v. Lovasco (1977) to require a two-pronged showing: (1) actual, substantial prejudice and (2) unjustifiable, bad-faith delay intended to gain a tactical advantage. Morrill did not analyze the state constitution or purport to overrule Hodge’s broader state-law approach.
• Barker v. Wingo (1972): The U.S. Supreme Court’s balancing framework for Sixth Amendment speedy trial claims—assessing length of delay, reasons, assertion of the right, and prejudice—informs Connecticut’s analogous due process analysis for prearrest delay. Justice Ecker emphasizes this affinity.
• United States v. Marion (1971) and United States v. Lovasco (1977): These federal cases recognize due process constraints on preaccusation delay but left ambiguity that spawned a persistent split among the federal circuits. Justice Ecker details that while most federal circuits require proof of both prejudice and prosecutorial bad faith, the Fourth, Seventh, and Ninth Circuits instead apply a balancing test akin to Hodge.
• State v. Geisler (1992): Establishes the six-factor method for state constitutional interpretation—federal precedent, historical sources, constitutional text, Connecticut precedent, sister-state law, and public policy. The concurrence uses Geisler to justify the balancing test under the state charter.
• Connecticut due process jurisprudence: The opinion situates this case alongside decisions in which the state constitution affords broader due process protections than federal law (e.g., State v. Morales (1995) on lost or destroyed evidence; State v. Purcell (2019) on custodial interrogation rights; State v. Harris (2018) on eyewitness identification; State v. Stoddard (1988) on informing suspects of counsel’s efforts; State v. Santiago (2015) on article first, § 9).
• Sister-state and federal circuit authority: Justice Ecker canvasses balancing-test jurisdictions (e.g., Fourth/Seventh/Ninth Circuits; California in People v. Nelson) and explains why their analyses are more persuasive for state due process than the bright-line federal majority rule requiring bad faith.

The Court’s Legal Reasoning under Geisler

Four Geisler factors do the heavy lifting: Connecticut precedent, persuasive federal and state authority, constitutional text and history, and public policy.

1. Connecticut precedent: Hodge already adopted a balancing approach for prearrest delay under the state constitution, closely paralleling Barker’s speedy-trial balancing. Morrill’s stricter federal test never displaced Hodge for state-law claims. This continuity strongly supports reaffirming balancing under the state charter.
2. Persuasive federal and state authority: The ongoing circuit split is telling. The minority balancing view better fits due process doctrine because:
   • It fairly allocates burdens—defendants prove prejudice; the state explains its own reasons for delay, which are uniquely within its knowledge.
   • It does not make constitutional relief hostage to proving intentional bad faith, a standard often impossible to establish.
   • It allows courts to weigh prejudice against justification, reflecting the flexible, fairness-oriented core of due process.
   Justice Ecker also notes that even federal cases sometimes accept reckless disregard as sufficient for the government’s fault prong (e.g., $8,850 in U.S. Currency), underscoring why a categorical “bad-faith-only” rule is ill-suited to due process values.
3. Text and history: Article first, § 8 (“due process of law”) and § 9 (“No person shall be arrested, detained or punished, except in cases clearly warranted by law”) support independent state protection. While the texts do not expressly command a particular test, Connecticut’s due process jurisprudence frequently favors balancing over rigid tests, as in Morales and Mathews v. Eldridge-style frameworks. Historically, Anglo-American law has long condemned unnecessary delays in criminal justice, a theme traceable to Magna Carta and early Connecticut codes.
4. Public policy:
   • Fears that balancing will let offenders go free are overstated; the “actual and substantial prejudice” threshold is exacting and seldom met.
   • Concerns about judicial second-guessing of police/prosecutorial discretion are mitigated by a widely recognized “safe harbor” for bona fide investigative delays and the practical reality that most long delays are investigative, not tactical.
   • Separation-of-powers objections (because the legislature sets statutes of limitations) are misplaced: courts must enforce constitutional due process constraints even where the legislature permits prosecution; the functions are complementary, not mutually exclusive.

The New State Constitutional Standard (as clarified by the concurrence)

The operative rule under article first, §§ 8 and 9 is a three-step, burden-shifting balancing test:

1. Prejudice: The defendant must prove actual and substantial prejudice caused by the delay. Examples include the death or unavailability of key defense witnesses, materially faded memories, or loss/degradation of exculpatory evidence. Speculation is insufficient; the prejudice must be concrete and case-specific.
2. Justification: If the defendant meets step one, the burden shifts to the state to explain and justify the delay (e.g., ongoing investigation; awaiting technological or evidentiary maturation; defendant-caused delay). The state is best positioned to provide these reasons.
3. Balancing: The court weighs the proven prejudice against the state’s justifications to decide whether the delay violates “fundamental conceptions of justice” and the “community’s sense of fair play and decency.” Investigative needs, especially in serious offenses and cold cases, can justify prolonged delays; intentional bad faith is not required for a violation, but the absence of bad faith and the presence of legitimate investigative reasons can tip the balance for the state.

Factors that commonly inform this balancing include:

• Length of the delay
• Nature and seriousness of the prejudice (including whether it substantially prevented a meaningful defense)
• Strength of the state’s case
• Whether the prejudice could be mitigated and whether mitigation occurred
• Reasons for the delay (including whether investigative and not negligent, reckless, or tactical)
• Any role the defendant played in the delay and the timeliness of the defense assertion
• Extraordinary circumstances (e.g., new scientific techniques like DNA that could not reasonably have been employed earlier)

Application to McFarland

The 32-year delay was undeniable. The defense identified multiple prejudice vectors: the death of two potential third-party culpability witnesses (Veronica Saars-Doyle and Bruce Hankins), an alibi witness’s lost memory (Louise Salvati), and the degradation/non-preservation of certain forensic evidence (including a bloody shirt and changes affecting probabilistic strength of DNA comparisons).

The court assumed, without deciding, that this met the heavy burden of showing actual and substantial prejudice. But several weaknesses in the prejudice showing are notable:

• Causal nexus: Due process requires that prejudice be caused by the delay. The record did not show whether the deceased witnesses were alive when the state plausibly could have prosecuted (e.g., after McFarland’s confessions in 1996). Without establishing that the witnesses died during the offending period of delay, the causal link is incomplete.
• Third-party culpability’s limits: To exculpate McFarland, any third-party culpability evidence had to be inconsistent with his guilt, not merely show that others may have participated. Both Saars-Doyle’s account and McFarland’s earlier statements suggested multiple actors, leaving open joint liability rather than exclusive third-party responsibility.
• State’s case: The state’s case—DNA placing McFarland at the scene and multiple confessions with nonpublic details—diminished the likelihood that the asserted prejudice undermined a fair trial.

On the justification side, the court found the delay largely and legitimately investigative. Critically, DNA techniques capable of linking McFarland to crime-scene material did not exist for decades. The state did not act for tactical advantage, nor in bad faith or reckless disregard. Even if some aspects (e.g., storage practices or earlier DNA collection from others) could be critiqued, the balance favored the state: the long, evidence-driven investigation culminating in DNA confirmation justified the timing of the charges. No due process violation occurred.

Evidentiary Guidance on Lost Witness Hearsay

The trial court excluded hearsay statements from the deceased Saars-Doyle. The Supreme Court affirmed. Justice Ecker, however, highlights a pragmatic and fairness-oriented point: where delay causes witness unavailability, trial courts—within the bounds of evidentiary law—may consider using discretionary tools to mitigate prejudice. Examples include:

• Admitting statements under a catchall/residual hearsay exception when reliability is sufficient
• Permitting stipulations or substitute proof that captures the substance of lost testimony
• Allowing prior recorded statements or notes to refresh recollection and reach the jury in a form they can evaluate

This is not a constitutional command to admit inadmissible evidence. Rather, in evidentiary gray areas, courts may weigh delay-induced prejudice as part of the discretionary calculus, mindful that—had the witness survived—the jury would have heard the testimony (warts and all). This guidance gives trial courts additional tools short of the drastic remedy of dismissal to promote fairness.

Impact

The decision materially reshapes Connecticut practice in several ways:

• New statewide standard: Connecticut defendants can challenge prearrest delays under the state constitution without proving prosecutorial bad faith. This aligns Connecticut with jurisdictions that prefer flexible balancing over bright-line rules.
• Burden allocation: Once a defendant shows actual, substantial prejudice, prosecutors must be prepared to articulate clear, contemporaneously credible reasons for delay, especially in long-running investigations.
• Safe harbor for investigative delay: Cold cases and DNA-driven prosecutions are not chilled. Prolonged, good-faith investigative efforts that await technological advances or evidence maturation are strong justifications.
• Documentation and preservation: Agencies are incentivized to:
  • Document investigative decisions that may explain delays
  • Preserve potentially exculpatory materials and maintain chain-of-custody practices that withstand time
  • Periodically reassess dormant cases and memorialize reasons for inactivity or deferred action
• Trial-level mitigation: Expect more defense requests for evidentiary accommodations to offset delay-induced prejudice. While not mandatory, trial courts now have explicit high-court encouragement to consider fairness-based mitigation where admissibility is close.
• Likelihood of relief: Despite this more defendant-friendly framework, the prejudice threshold remains demanding. As Justice Ecker notes, successful prearrest-delay dismissals are rare even in balancing jurisdictions.

Complex Concepts Simplified

• Prearrest/preindictment/preaccusation delay: The time between the alleged crime and the formal initiation of charges. The due process inquiry is distinct from the Sixth Amendment speedy trial right (which attaches after formal accusation).
• Actual and substantial prejudice: Concrete, case-specific harm that meaningfully impairs the defense (for example, the death of a unique exculpatory witness, not merely speculative “loss of helpful testimony”). There must be a causal link between the delay and the harm.
• Two-pronged federal test: In many federal courts, a defendant must prove both (1) actual prejudice and (2) intentional, bad-faith delay (or similar culpability) by the government to gain a tactical advantage. Connecticut rejects this as the state constitutional standard.
• Balancing test: After a prima facie showing of prejudice, the state must explain the delay; the court then weighs the state’s reasons against the prejudice to determine if fundamental fairness was compromised.
• Investigative safe harbor: Legitimate, good-faith investigatory reasons—waiting for evidence to ripen, for technology (like DNA) to mature, or for witness corroboration—typically justify delay and weigh heavily for the state.
• Third-party culpability: Defense evidence that someone else committed the crime. To exonerate, it must be inconsistent with the defendant’s guilt; if it merely shows multiple participants, it may not exculpate the defendant.
• Residual/catchall hearsay exception: An evidentiary rule that can admit hearsay not within a traditional exception if it bears equivalent guarantees of trustworthiness and if admission serves the interests of justice—potentially relevant when delay makes a witness unavailable.

Conclusion

State v. McFarland marks a significant clarification of due process protections under the Connecticut Constitution. Connecticut courts will now evaluate prearrest delay claims through a Barker-style balancing lens: defendants must establish actual and substantial prejudice; the burden then shifts to the state to justify the delay; and courts weigh prejudice against justification to decide whether the prosecution offends fundamental fairness. Bad faith is not required for a violation, and bona fide investigative delay—particularly in serious, complex, or technology-dependent cases—will frequently justify even lengthy intervals before arrest or charging.

While the court ultimately affirmed McFarland’s conviction on this record, the opinion provides a workable blueprint for future cases and encourages trial judges to consider measured evidentiary remedies when delay-induced prejudice collides with admissibility rules. Together, these holdings balance two imperatives at the heart of due process: ensuring that the innocent are not convicted because time has eroded their defenses, and permitting the state to marshal reliable evidence—sometimes only achievable through the patience and progress that long investigations require.