Connecticut Adopts a Balancing Test for Prearrest Delay Under the State Due Process Clauses: Commentary on State v. McFarland (2025)

Introduction

State v. McFarland is a landmark decision of the Supreme Court of Connecticut addressing the constitutional limits on prearrest delay in criminal prosecutions. The case arises from the 1987 murders of Fred Harris and his son, Gregory Harris, in Hamden—crimes that remained unsolved until advances in DNA testing and a series of confessions by the defendant, Willie McFarland, culminated in his arrest in 2019 and a jury conviction in 2022. The appeal raised three principal issues:

Whether the 32-year delay between the murders and McFarland’s arrest violated his due process rights under the federal and state constitutions.
Whether the trial court abused its discretion by refusing to order a fifth competency evaluation after finding the defendant competent to stand trial.
Whether the court erred by excluding, under the residual hearsay exception, out-of-court statements by a deceased witness (Veronica Saars‑Doyle) implicating a third party.

The Supreme Court affirmed the convictions. Most notably, a majority of the Court adopted, for the first time, a balancing test under the Connecticut Constitution for evaluating prearrest-delay due process claims, marking a doctrinal divergence from the federal two-pronged approach that Connecticut continues to apply for federal claims.

Summary of the Judgment

The Court held:

Federal due process: The Court unanimously adhered to the established federal two-pronged test derived from United States v. Marion and United States v. Lovasco: a defendant must show (1) actual and substantial prejudice from the delay, and (2) that the State delayed to gain a tactical advantage or for other improper purposes. McFarland failed to satisfy this test.
State due process: A majority adopted a new Connecticut balancing test for prearrest-delay claims. Under this test, the defendant must first make a threshold showing of actual and substantial prejudice; the burden then shifts to the State to establish the reasons for the delay; finally, the court balances the prejudice against the State’s reasons. Applying this test, the Court held the delay was justified by investigative needs and scientific advances in DNA testing, and thus there was no state due process violation.
Competency: The trial court did not abuse its discretion by declining to order a fifth competency evaluation. The court could rely on its observations and prior reports, and the defendant’s refusal to cooperate did not itself create reasonable doubt about competency absent a material change in circumstances.
Residual hearsay: The trial court properly excluded the deceased witness’s statements under the residual hearsay exception. Although necessity was met, the statements lacked sufficient guarantees of trustworthiness due to inconsistencies, multiple hearsay layers, lack of cross-examination, and implausibilities.

Six justices concurred in three separate opinions. A plurality opinion (Justice Alexander, joined by Chief Justice Mullins and Justice Dannehy) and a concurring opinion (Justice Ecker, joined in part by Justice McDonald) embraced the same balancing test under the state constitution, forming a majority on that point. Justice D’Auria concurred in the judgment but would have applied the federal two-pronged test to the state claims as well.

Analysis

Precedents Cited and Their Role

United States v. Marion (1971) and United States v. Lovasco (1977): These U.S. Supreme Court decisions frame federal due process analysis for preaccusation delays. Marion established the due process lens for preindictment delay, and Lovasco clarified that investigative delay—even if lengthy—does not violate due process absent bad faith or tactical delay designed to disadvantage the defense. Lovasco’s “community’s sense of fair play and decency” standard anchors the Connecticut Court’s analysis here.
State v. Morrill (1985) and State v. Carrione (1982): Connecticut’s prior adoption of Marion/Lovasco’s two-pronged test under federal due process. The Court reaffirmed that test for federal claims.
State v. Geisler (1992): Establishes the framework for state constitutional analysis in Connecticut. The trial court performed a Geisler analysis to assess whether the state constitution affords broader protection than the federal constitution for prearrest delay. McFarland marks the culmination of that analysis at the appellate level, with a majority adopting a more flexible balancing test under the state due process clauses.
Federal circuits endorsing balancing: The Court cited authority from the Fourth, Seventh, and Ninth Circuits endorsing balancing after a threshold showing of prejudice (e.g., Howell v. Barker; United States v. Sowa; United States v. Moran), signaling alignment with this minority approach for state constitutional purposes.
Federal circuits adhering to the two-pronged test: The Fifth Circuit’s en banc decision in United States v. Crouch, and the general adherence of most federal circuits to the Marion/Lovasco two-pronged approach, informed Justice D’Auria’s concurrence favoring no expansion under the state constitution.
Competency cases: State v. Dort; State v. Johnson; State v. Connor; State v. Campbell; State v. Ross. These decisions confirm the Dusky standard (rational and factual understanding and ability to consult with counsel), the “low” bar for competency, and the trial court’s broad discretion—key to upholding the refusal to order yet another evaluation.
Residual hearsay cases: State v. Bennett; State v. McClendon; State v. Burton; State v. Rivera. These cases emphasize that the residual exception is to be used sparingly, and that cross-examination opportunities, corroboration, consistency, and the absence of multiple hearsay layers are central to trustworthiness.

Legal Reasoning

1) Prearrest Delay and Due Process

Federal claims: The Court applied the orthodox Marion/Lovasco two-pronged test. The defendant had to show both actual and substantial prejudice and that the State delayed for an improper purpose (e.g., tactical advantage or bad faith). The State’s explanation—awaiting and using improved DNA technology—constitutes investigative delay, not tactical sandbagging. As Lovasco emphasizes, investigative delay—even when lengthy—does not violate due process absent bad faith. The defendant failed to satisfy the second prong.

State claims: A majority adopted a balancing test under the Connecticut Constitution. This is the decision’s most significant doctrinal development. The test operates as follows:

Step 1: Threshold showing (defendant’s burden). The defendant must demonstrate “actual and substantial prejudice” attributable to the delay. Speculative or generalized prejudice is insufficient.
Step 2: State’s reasons (State’s burden). If the defendant meets Step 1, the State must articulate and substantiate the reasons for the delay (e.g., ongoing investigation; need for scientific advancements; witness availability; evidence development).
Step 3: Balancing (trial court function). The court weighs the demonstrated prejudice against the State’s reasons to determine whether proceeding offends “the community’s sense of fair play and decency” in light of state due process guarantees.

Application: Even assuming arguendo that McFarland suffered some actual and substantial prejudice, the State’s explanation—waiting for and then employing newly available DNA testing that substantially altered the evidentiary picture—was compelling. Investigative diligence and technological progress justified the timing. On balance, the delay did not violate state due process.

2) Competency to Stand Trial

The trial court had ordered four competency evaluations over roughly two years, ultimately finding McFarland competent after restoration. On the eve of trial, defense counsel again sought a competency evaluation, citing the defendant’s refusal to cooperate and purported delusions. The court declined to order a fifth evaluation, relying on:

Its direct observations of the defendant’s behavior and courtroom interactions;
Reports and testimony from evaluators who had interacted with the defendant and concluded he could cooperate when he chose to;
The absence of a material change in circumstances since the prior competency findings.

Connecticut law requires a competency examination only when substantial evidence creates a reasonable doubt as to competence. The standard for competency is “relatively low,” and a defendant’s intentional noncooperation or distrust of the system does not necessarily equate to incompetence. The Court affirmed the trial court’s exercise of discretion.

3) Residual Hearsay and Third-Party Culpability Evidence

The defense sought to admit police reports recounting statements by the now-deceased Veronica Saars‑Doyle implicating Lee Copeland and others. The trial court excluded the statements under the residual exception. This was affirmed because:

Necessity: Met—Saars‑Doyle was deceased.
Trustworthiness: Not met—her statements were inconsistent, disjointed, and at points implausible, contained multiple layers of hearsay, and were never tested by cross-examination. Some accurate crime-scene details were likely derived from public information or police prompts rather than first-hand knowledge.

Because the court’s evidentiary ruling was proper, the derivative constitutional claim (right to present a defense) necessarily failed.

Impact of the Decision

1) A new Connecticut standard under the state constitution. McFarland establishes that Connecticut courts will apply a balancing framework—after a threshold showing of actual and substantial prejudice—to assess prearrest delay under the state due process clauses. This departs from the federal two-prong test that requires both prejudice and bad faith/tactical delay. Practically, the state standard may allow a defendant to prevail even absent proof of prosecutorial bad faith if the demonstrated prejudice is severe and the State’s reasons are weak or unjustified.

2) Cold case prosecutions and scientific advancements. McFarland provides strong support for the proposition that delays occasioned by improvements in forensic science, including the advent of more sensitive DNA tests and probabilistic genotyping, are legitimate investigative reasons that can outweigh prejudice in the balance—especially in offenses like murder that have no statute of limitations in Connecticut.

3) Litigation posture and burdens. The decision clarifies burdens and sequencing:

Defendants must come forward with concrete, non-speculative evidence of “actual and substantial” prejudice (e.g., witness death or memory loss tied to delay; loss or degradation of specific exculpatory evidence; a demonstrable inability to mount a key defense).
Prosecutors should be prepared to articulate a clear, documented chronology explaining investigative steps, resource constraints, witness availability issues, and advances in scientific testing that informed the timing. The State will benefit from recordkeeping that demonstrates diligence rather than tactical gamesmanship.
Trial courts must make findings on both prejudice and the State’s reasons before conducting the balance, thereby creating a record for appellate review.

4) Competency practice. The Court reafﬁrms that multiple competency evaluations are not required absent a substantial change in circumstances. Intentional noncooperation and a defendant’s strategic behavior can be factored into the competency assessment, and trial courts may properly rely on their own courtroom observations.

5) Residual hearsay gatekeeping. McFarland underscores that the residual exception remains exceptional. For third-party-culpability evidence offered through hearsay, courts will demand robust indicia of reliability—consistent accounts, opportunities for cross-examination, corroboration, and the absence of multiple hearsay layers. Signatures under oath and minor corroborations will not, standing alone, overcome substantial reliability defects.

Complex Concepts Simplified

Prearrest (preaccusation) delay: The time between when a crime occurs and when the defendant is arrested or formally charged. It is distinct from post-accusation delay (which implicates speedy trial rights). Due process limits very long prearrest delays if they unfairly prejudice the defense and lack legitimate justification.
Two-pronged vs. balancing test:
- Federal two-pronged test (Marion/Lovasco): Defendant must show (1) actual and substantial prejudice, and (2) improper delay by the State (e.g., tactical advantage or bad faith). Both prongs are required.
- Connecticut state balancing test (new): Defendant must show (1) actual and substantial prejudice. If shown, the State must explain its reasons for delay, and the court balances prejudice against those reasons.
“Community’s sense of fair play and decency”: A due process touchstone from Lovasco. Even absent bad faith, proceeding after an extreme and unjustified delay that seriously harms the defense can offend due process. Under the new state test, this fairness inquiry is explicit and structured.
Touch DNA and likelihood ratios: “Touch DNA” refers to trace DNA left by skin cells. Modern tests can generate profiles from degraded or minimal samples. A “likelihood ratio” (e.g., “1.5 million times more likely if the defendant contributed to the sample”) quantitatively compares how probable the observed DNA mixture would be under competing scenarios. “Inconclusive” for another individual (e.g., Copeland) can mean the data are compatible but weak—somewhere between 1 and 1000 times more likely than a random alternative—insufficient to declare a meaningful association.
Competency to stand trial: A defendant must have a rational and factual understanding of the proceedings and be able to consult with counsel with a reasonable degree of rational understanding. Mental illness alone does not equate to incompetence; the focus is on present functional abilities. Courts have discretion to order evaluations when substantial evidence raises reasonable doubt; repeated evaluations are not required without changed circumstances.
Residual hearsay exception: A safety-valve that allows admission of hearsay not otherwise covered by a traditional exception only when (1) there is a real necessity (e.g., declarant unavailable), and (2) the statement bears “equivalent” guarantees of trustworthiness as traditional exceptions. In practice, it is used sparingly, especially where statements are inconsistent, untested by cross-examination, or laden with multiple hearsay levels.

Practical Guidance for Practitioners

Defense counsel (prearrest delay):
- Develop a concrete prejudice record: identify specific witnesses lost to time, document the substance of their anticipated testimony and why substitutes are inadequate, and detail lost or degraded physical evidence and its exculpatory value.
- Link prejudice to delay: explain how the passage of time caused the loss, rather than happenstance.
- Anticipate the State’s justification: be prepared to rebut claims of investigative necessity (e.g., by showing earlier available investigative avenues) and argue that the balance favors dismissal when prejudice is severe.
Prosecutors (prearrest delay):
- Maintain a timeline and memorialize investigative decisions, particularly those tied to scientific testing availability, witness issues, and resource allocation.
- When technology evolves (as with DNA), document when a method became feasible, what it added to the evidentiary picture, and diligence in retesting.
- Be prepared to show the absence of tactical motives and the presence of legitimate investigative reasons.
Competency disputes:
- Identify and articulate a “substantial change in circumstances” to justify repeated evaluations.
- Recognize that noncooperation alone rarely suffices; provide clinical support showing non-volitional impairment rather than strategic refusal.
Residual hearsay:
- Expect rigorous scrutiny of reliability. Where possible, corroborate with independent evidence, minimize hearsay layers, and show stability and consistency across statements.
- Anticipate that lack of cross-examination opportunities is a serious strike against admissibility unless other reliability indicators are unusually strong.

Conclusion

State v. McFarland is a pivotal Connecticut decision for three reasons. First, it charts an independent state constitutional path for prearrest-delay claims by adopting a structured balancing test after a threshold showing of actual and substantial prejudice. This test better aligns the inquiry with the ultimate fairness question while preserving room for legitimate, often technology-driven investigative delays—particularly salient in cold-case prosecutions.

Second, the decision reinforces the trial court’s discretion in competency determinations, clarifying that repeated evaluations are unnecessary absent materially changed circumstances and that intentional noncooperation does not equate to incompetence.

Third, the ruling emphasizes the narrowness of the residual hearsay exception and the judiciary’s continuing insistence on robust reliability safeguards, especially when hearsay is offered to support third-party culpability.

Taken together, McFarland strengthens doctrinal clarity across three significant domains—due process, competency, and evidentiary reliability—while providing practical guidance for the prosecution and defense in complex, long-delayed criminal cases.