State v. McFarland: Connecticut Adopts a State Due Process Balancing Test for Pre‑Accusation Delay—Concurrence Urges Retaining Marion–Lovasco

State v. McFarland: Connecticut Adopts a State Due Process Balancing Test for Pre‑Accusation Delay—Concurrence Urges Retaining Marion–Lovasco

Introduction

In State v. McFarland (Conn. Sept. 2, 2025), the Supreme Court of Connecticut affirmed the conviction of Willie McFarland in a decades-old homicide prosecution. Although the Court issued a per curiam affirmance, the members filed separate concurrences that collectively chart a new doctrinal path: a state constitutional balancing test governing due process claims arising from pre-accusation (prearrest or preindictment) delay.

Justice D’Auria filed a “concurrence in the judgment” that disagrees with the reasoning adopted by his colleagues, Justices Ecker and Alexander. While all agree McFarland does not obtain relief, the other two concurrences accept the defendant’s invitation to adopt a balancing framework under article first, §§ 8 and 9 of the Connecticut Constitution. By contrast, Justice D’Auria would retain the long‑standing federal two‑pronged standard set out in United States v. Marion and United States v. Lovasco and cautions against constitutionalizing a new pretrial mechanism that, in his view, is unnecessary, unadministrable, and potentially disruptive to prosecution discretion and legislative policy judgments (such as the absence of a statute of limitations for murder).

The key issues addressed are:

  • Whether Connecticut’s due process clauses provide greater protection than the federal constitution against pre‑accusation delay.
  • Whether to replace the Marion–Lovasco two‑pronged test with a balancing test weighing (a) the defendant’s “actual and substantial prejudice” against (b) the State’s reasons for the delay.
  • How such a test should be administered (timing, burdens, standards of proof, and appellate review), and its interaction with statutes of limitations and separation‑of‑powers norms.

Summary of the Judgment

The Court affirmed McFarland’s conviction. All panel members agreed that the defendant failed under any applicable standard. However, a majority announced—via concurring opinions—a new state constitutional balancing test for due process challenges to pre‑accusation delay. Under that approach:

  • The defendant must first demonstrate “actual and substantial prejudice” from the delay.
  • If that showing is made, the burden shifts to the State to justify the delay (e.g., as legitimately investigative).
  • The court then weighs the defendant’s demonstrated prejudice against the State’s justification to decide whether due process requires dismissal.

Justice D’Auria concurred in the judgment only. He would not reach or adopt a new state constitutional test because the defendant loses either way. He urges adherence to the federal two‑pronged standard (requiring both actual substantial prejudice and unjustifiable delay—often understood as a deliberate tactical advantage) and warns that today’s balancing test, adopted in a case where it makes no difference to the outcome, introduces significant doctrinal and practical problems for courts, prosecutors, and defendants alike.

Analysis

Precedents Cited and How They Shaped the Decision

  • United States v. Marion, 404 U.S. 307 (1971) and United States v. Lovasco, 431 U.S. 783 (1977):
    • Establish the federal rule: a defendant must prove both (1) actual, substantial prejudice from pre‑accusation delay and (2) that the delay was unjustifiable, often framed as an intentional device to gain a tactical advantage.
    • Lovasco emphasizes statutes of limitations as the primary safeguard against stale prosecutions and recognizes “investigative delay” as a legitimate reason to defer charging. It warns that forcing premature prosecutions undermines “orderly expedition” and risks unwarranted charges, multiple trials, and ill‑considered charging decisions.
    • Justice D’Auria highlights Lovasco’s policy logic to argue against moving to a balancing test that pressures earlier filings and invites intrusive judicial second‑guessing of investigative choices.
  • United States v. Gouveia, 467 U.S. 180 (1984):
    • Reconfirms that even within the limitation period, due process can bar prosecution only if the defendant proves both actual prejudice and a deliberate tactical delay.
  • State v. Hodge, 153 Conn. 564 (1966):
    • Pre‑Marion/Lovasco Connecticut case addressing a brief pre‑arrest delay under article first, § 7 (search and seizure). It looked to totality of circumstances but underscored that investigatory delay is often reasonable, with statutes of limitations providing the “ultimate safeguard.”
    • Justice D’Auria reads Hodge as compatible with Marion–Lovasco, not as a mandate for balancing or burden‑shifting under due process.
  • Connecticut line of cases applying Marion–Lovasco:
    • State v. Roger B. (2010); State v. Robinson (1989); State v. John (1989); State v. Littlejohn (1986); State v. Gaston (1986); State v. Morrill (1985); State v. Carrione (1982); State v. Echols (1975).
    • Together, these decisions consistently applied the federal two‑pronged test to due process claims based on pre‑accusation delay.
  • Geisler framework (State v. Geisler, 222 Conn. 672 (1992)):
    • Connecticut’s six‑factor method for interpreting state constitutional provisions: text, related Connecticut precedents, persuasive federal precedent, persuasive sister‑state precedent, historical insights, and public policy.
    • Justice D’Auria’s concurrence undertakes a Geisler analysis and finds no factor that compels a departure from Marion–Lovasco.
  • Text/History cases:
    • State v. Lockhart (2010); State v. Purcell (2019); State v. Griffin (2021). These note the virtual identity between state and federal due process language; Justice D’Auria sees no textual or historical basis for greater state protection here.
  • Policy and separation‑of‑powers cases:
    • State v. Daren Y. (2024); State v. Police (2022); State v. Hurdle (2024); Drumm v. FOIC (2024): stress legislative judgments about statutes of limitations; the absence of a murder limitation period reflects a firm policy choice that prosecutions may proceed regardless of delay.
    • State v. Corchado (1986): recognizes broad prosecutorial discretion in charging decisions.
  • Mathews v. Eldridge, 424 U.S. 319 (1976), as adopted in State v. Morales (1995):
    • Connecticut uses Mathews to assess whether additional procedural safeguards are required by due process. Justice D’Auria applies Mathews to argue the new balancing test is neither necessary nor wise given low error risk, high government burdens, and existing safeguards.
  • Existing Connecticut safeguards—General Statutes § 54‑56 and related cases:
    • § 54‑56 allows dismissal for “insufficient cause.” Cases such as State v. Angel C. (1998), State v. Kinchen (1998), State v. Daniels (1988), State v. Dills (1989), and State v. Golodner (2012) emphasize that dismissal is an exceptional remedy grounded in equitable weighing already available without constitutionalizing a new test.
  • Other jurisdictions (comparative authority):
    • United States v. Crouch, 84 F.3d 1497 (5th Cir. 1996) (en banc): rejected prior balancing, returned to Marion–Lovasco; famously called the balancing exercise “compar[ing] the incomparable.”
    • Jackson v. State, 347 So. 3d 292 (Fla. 2022): Florida Supreme Court likewise abandoned balancing in favor of the federal standard.
    • Fourth, Seventh, Ninth Circuits (e.g., Villa, McMutuary, Corona‑Verbera, Davis, Wood) reflect inconsistent balancing implementations—illustrating the administrability concerns flagged by Justice D’Auria.

Legal Reasoning

The New State Constitutional Balancing Test (as announced by other concurrences)

Though the per curiam opinion is not reproduced here, Justice D’Auria’s concurrence makes clear that a majority of the Court has now embraced a state constitutional balancing test for due process claims predicated on pre‑accusation delay. Key features as described:

  • Threshold showing: The defendant must prove “actual and substantial prejudice.”
  • Burden shifting: Upon that showing, the burden shifts to the State to justify the delay—most commonly by demonstrating that the delay was “legitimately investigative in nature.”
  • Balancing: The court weighs the proven prejudice against the State’s justification to decide whether dismissal is warranted.
  • Scope/rarity: The other concurrences expect due process dismissals to be “exceedingly rare,” particularly where delays are legitimately investigative and in light of scientific advances (e.g., DNA) that can justify cold‑case intervals.

Justice D’Auria’s Critique

Justice D’Auria agrees with affirmance but would not adopt a new constitutional test in a case where it does not affect the outcome. He invokes constitutional avoidance and argues:

  • Geisler factors do not support the shift:
    • Text and history: State due process clauses are textually aligned with the federal clauses; no historical basis for more expansive pre‑accusation protections.
    • Connecticut precedent: Hodge (1966) is more consistent with Marion–Lovasco than with balancing; post‑Marion cases have uniformly applied the federal standard.
    • Other jurisdictions: The majority rule nationwide follows Marion–Lovasco; the minority balancing approach has been abandoned in some key jurisdictions due to administrability and separation‑of‑powers concerns.
    • Policy: Statutes of limitations—not due process—should define the outer bounds; the absence of a murder limitation period is a strong legislative policy that the judiciary should respect.
  • Mathews balancing counsels against adding this safeguard:
    • Private interest: Liberty is always at stake; but the new test would be invoked in countless cases, not just extraordinary cold cases.
    • Risk of error: Even the other concurrences acknowledge defendants will rarely prevail; the error risk is low given existing trial safeguards.
    • Government burdens: The balancing test imposes significant fiscal and administrative burdens, pressures prosecutors toward premature charges, and invites judicial second‑guessing of investigative resource allocation.
  • Administrability problems:
    • “Comparing the incomparable”: Courts must weigh a qualitative prejudice showing against an institutional justification lacking common metrics.
    • Timing uncertainties: Should the hearing occur pretrial or post‑trial? If pretrial, must the court preview the State’s whole case to assess “strength”? If post‑trial, how does a jury’s beyond‑a‑reasonable‑doubt verdict factor?
    • Proof difficulties: How can the State credibly reconstruct decades‑old investigative decisions when personnel have retired or died? Will post hoc rationales suffice?
    • Standards of review: Sister jurisdictions split between de novo, clear error, and abuse of discretion—portending inconsistent appellate practice.
    • Retroactivity: Collateral attacks may require the State to resurrect old files to justify delays long after convictions, compounding burdens.
  • Existing tools already protect fairness:
    • § 54‑56 “insufficient cause” dismissals (sparingly applied); robust evidentiary discretion to address staleness; post‑verdict motions; appellate sufficiency review—all can safeguard fairness without recasting the due process baseline.

Impact and Forward‑Looking Considerations

The new balancing test will reshape pretrial practice in Connecticut, even if dismissals remain rare.

  • Rise in motions to dismiss for delay:
    • Defense counsel now have an incentive to file motions even in shorter‑delay cases or within statutes of limitations, seeking discovery into the State’s investigative choices and to secure a pretrial “walk‑through” of the prosecution’s case.
    • Burden shifting, once “actual and substantial prejudice” is shown, heightens the State’s need to contemporaneously document investigative justifications.
  • Prosecutorial practices may change:
    • To avoid later justification problems, offices may accelerate charging decisions, potentially increasing the risk of premature or fragmented prosecutions—precisely the dangers Lovasco cautioned against.
    • Agencies may expand documentation of resource allocation, triage decisions, and investigative pauses—imposing new administrative costs.
  • Trial‑court management challenges:
    • Courts will need to set procedures for when to hold the hearing (pretrial vs post‑trial), what quantum of proof suffices for “actual and substantial prejudice,” and what satisfies “legitimately investigative” justification.
    • Judicial rulings may require credibility assessments of investigators long after the fact.
    • Given the concurrence’s warning, trial courts will need to craft consistent local practices until the Supreme Court provides more granular guidance.
  • Appellate standards:
    • The Court will need to settle whether outcomes are reviewed de novo (as a question of law), for clear error (for factual findings), or for abuse of discretion (for the ultimate balancing)—or some hybrid approach.
  • Scope beyond murder:
    • Although McFarland involves a 32‑year homicide delay and likely DNA evidence, the new test is not limited to no‑limitation offenses. Expect litigation in a broad swath of cases, including those with comparatively brief delays.
  • Retroactivity:
    • Collateral review (e.g., habeas) may test whether the new rule applies retroactively, potentially requiring the State to justify long‑past delays in already final cases, with all the logistical complications that entails.

Complex Concepts Simplified

  • Pre‑Accusation (Prearrest) Delay: The time between the alleged criminal act and the formal charging or arrest of a suspect. Due process can, in rare cases, bar prosecution if the delay unfairly harms the defense and is unjustified.
  • Marion–Lovasco Two‑Pronged Test: Under federal due process, a defendant must prove (1) actual, substantial prejudice from delay, and (2) that the delay was an unjustifiable tactic (often, to gain a strategic advantage). Investigative delay is generally a legitimate reason to wait.
  • Connecticut’s New Balancing Test: Under the state constitution (as announced in the other concurrences), once the defendant shows actual and substantial prejudice, the burden shifts to the State to justify the delay. The court then balances prejudice against justification to determine if due process requires dismissal.
  • Statutes of Limitations: Legislative time limits for bringing charges. Connecticut has no limitations period for murder—reflecting a policy that such prosecutions may proceed regardless of delay. Due process protections operate independently from, but in the shadow of, these legislative time bars.
  • Geisler Analysis: Connecticut’s six‑factor method for interpreting state constitutional rights—text, state precedent, federal precedent, sister‑state decisions, history, and public policy.
  • Mathews v. Eldridge Balancing: A framework to decide whether additional procedural safeguards are constitutionally required: weigh (1) the private interest, (2) risk of error and the value of added safeguards, and (3) the government’s interests/burdens.
  • “Investigative Delay”: Time the State spends developing the case before charging—collecting evidence, evaluating credibility, exploring leads, or pursuing co‑conspirators. Lovasco holds such delay is not a due process violation even if some defense prejudice results.
  • “Actual and Substantial Prejudice” (examples and limits):
    • Concrete, non‑speculative harm to the defense’s ability to obtain a fair trial (e.g., the death of a uniquely exculpatory witness unavailable through any other source).
    • Mere faded memories or general staleness, without specific adverse impact on the defense, usually does not suffice.

Conclusion

State v. McFarland is a watershed Connecticut decision on pre‑accusation delay. While affirming the defendant’s conviction, a majority of the Court used the case to announce a new state constitutional balancing test: a defendant must first establish “actual and substantial prejudice,” after which the State bears the burden to justify the delay, and the court balances prejudice against justification. The Court signals that dismissals will be unusual—particularly when delays are legitimately investigative and consistent with the public interest in solving serious crimes, including cold cases.

Justice D’Auria concurs in the judgment but urges adherence to the federal Marion–Lovasco framework. He warns that the new test lacks textual or historical footing in Connecticut’s due process clauses, departs from a national majority rule without adequate justification, burdens courts and prosecutors with difficult case‑by‑case balancing (“comparing the incomparable”), and risks undermining legislative policy choices and prosecutorial discretion. He also offers a practical roadmap: rely on existing safeguards such as § 54‑56 dismissals, evidentiary management, and post‑verdict review to ensure fairness in delayed prosecutions without constitutionalizing a new pretrial apparatus.

Going forward, practitioners should expect:

  • More motions to dismiss for pre‑accusation delay, even outside the murder context.
  • Closer judicial scrutiny of investigative justifications, especially when defendants demonstrate concrete prejudice.
  • Development of procedural norms on timing, burdens, and standards of review, as trial courts implement the new balancing test “in the first instance.”

The decision both broadens the doctrinal toolkit for addressing stale prosecutions and sets the stage for further clarification. The Court has marked a new constitutional path; future cases will refine how the balance is struck between fairness to the accused and the public’s interest in orderly, effective investigation and prosecution.

Case Details

Year: 2025
Court: Supreme Court of Connecticut

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