Toward a Balancing Test for Prearrest Delay Under the Connecticut Constitution: Justice Alexander’s Concurrence in State v. McFarland

Introduction

In State v. McFarland (Supreme Court of Connecticut, Sept. 2, 2025), the court affirmed the conviction of Willie McFarland for a 1987 double homicide. While joining the court’s judgment, Justice Alexander, with Chief Justice Mullins and Justice Dannehy concurring, authored a separate opinion addressing a critical constitutional question: how should Connecticut courts evaluate due process challenges to lengthy prearrest delays?

The case involved a 32-year gap between the homicides and McFarland’s arrest. The defendant argued that this delay violated his due process rights under article first, §§ 8 and 9, of the Connecticut Constitution. Justice Alexander agreed the conviction should stand but urged a doctrinal recalibration: abandon the rigid, two-pronged test many jurisdictions associate with United States v. Marion and United States v. Lovasco, and instead adopt a balancing framework—aligned with a minority federal view and numerous state high courts—that weighs actual prejudice against the government’s justification for delay.

The concurrence’s analysis, rooted in Connecticut’s Geisler methodology for state constitutional interpretation, is a detailed blueprint for a fairer, more workable approach to prearrest delay claims under the state constitution. Although not the opinion of the court, this concurrence is a consequential signal of where Connecticut law may be headed.

Summary of the Judgment

The Supreme Court of Connecticut affirmed McFarland’s murder convictions. Justice Alexander concurred in the judgment and in the court’s ultimate conclusion that the 32-year prearrest delay did not violate due process. His separate opinion, however, diverged on methodology. He:

Rejected the widely used, two-pronged test that requires a defendant to prove both (1) actual, substantial prejudice and (2) that the state’s delay was “wholly unjustifiable,” such as to gain a tactical advantage (often attributed to readings of Marion and Lovasco and exemplified by the Fifth Circuit’s decision in United States v. Crouch).
Advocated a balancing test, consistent with decisions from the Fourth, Seventh, and Ninth Circuits (e.g., Howell v. Barker; United States v. Sowa; United States v. Moran), and adopted by many state high courts.
Outlined a burden-shifting procedure: the defendant must first prove actual and substantial prejudice; then the state must produce evidence explaining the reasons for delay; finally, the court balances prejudice against justification to decide whether the delay violates fundamental fairness.
Applied this framework to the record. Assuming, without deciding, that the defendant established actual and substantial prejudice, he concluded the state’s investigative justifications—including waiting for more conclusive DNA testing and exercising caution in a capital-eligible double homicide—far outweighed any prejudice.

Result: No due process violation on the prearrest delay; conviction affirmed. The concurrence signals a potentially significant doctrinal shift under the Connecticut Constitution, while acknowledging that the court’s governing standard remains whatever the majority opinion actually adopted.

Analysis

Precedents Cited and Their Influence

The concurrence sits at the intersection of federal due process doctrine and Connecticut’s distinctive approach to state constitutional interpretation. Key strands include:

1) Federal Authorities: Marion and Lovasco

United States v. Marion (1971): Emphasized statutes of limitations as the “primary guarantee” against stale prosecutions, but left room for due process to guard against fundamentally unfair preindictment delays.
United States v. Lovasco (1977): Rejected the notion that prosecutors must indict as soon as probable cause exists; recognized that legitimate investigative delay can be consistent with “elementary standards of fair play and decency.”

Many courts read Marion and Lovasco to require the two-pronged test (prejudice plus unjustifiable or bad-faith delay), exemplified by United States v. Crouch (5th Cir.). Justice Alexander, aligning with the Fourth, Seventh, and Ninth Circuits, reads those cases as compatible with a more flexible balancing approach focused on fundamental fairness, not prosecutorial motive alone.

2) Connecticut Authority: State v. Hodge (1966)

In a pre-Geisler case, State v. Hodge, the Connecticut Supreme Court evaluated a three-week prearrest delay by balancing “all the circumstances,” including the length and reason for delay, prejudice, and timely presentation of the claim. It upheld the state’s actions based on investigative needs (protecting an undercover officer) and lack of demonstrated prejudice. Justice Alexander treats Hodge’s balancing analysis as an antecedent—and Connecticut-specific—foundation supporting the move away from a rigid, two-pronged test.

3) The Geisler Framework

Under State v. Geisler (1992), the court examines six factors when interpreting the state constitution. Justice Alexander focuses on three:

Connecticut precedents: Hodge supports balancing.
Persuasive decisions of other state courts: A substantial number of high courts (e.g., California in People v. Nelson; Hawaii in State v. Keliiheleua; Louisiana in State v. Malvo; Maine in State v. Cyr; Montana in State v. Passmore; New Hampshire in State v. Knickerbocker; Ohio in State v. Luck; West Virginia in State ex rel. Knotts v. Facemire; and New York in People v. Regan) reject the two-pronged test and adopt balancing.
Public policy: Dramatic extensions and eliminations of limitation periods (e.g., for murder and certain sexual offenses under General Statutes § 54-193) heighten the need for a fair, calibrated due process check when prosecutions occur decades later.

4) Other Persuasive Federal and State Cases Shaping the Balancing Test

Howell v. Barker (4th Cir.); United States v. Sowa and United States v. Hagler (7th Cir.); United States v. Moran (9th Cir.): These cases supply the structure of burden-shifting and the “monumental hurdle” of proving actual, substantial prejudice with concrete, non-speculative facts.
Jones v. Angelone (4th Cir.): Defines “actual and substantial prejudice” as a meaningful impairment of the defense likely to affect the outcome.
United States v. McMutuary (7th Cir.) and People v. Cowan (Cal.): Examples where claimed prejudice failed because the lost or faded evidence was cumulative or otherwise mitigated by available records or retesting.
State v. Lee (S.C.): Example where prejudice was found due to loss of contemporaneous, likely exculpatory documentary evidence.
State v. Luck (Ohio): Illustrates that even without bad faith, an “error in judgment” producing a very long delay with no new evidence can violate due process under a balancing test.

Legal Reasoning

Justice Alexander’s reasoning unfolds in distinct steps.

1) Why Abandon the Rigid Two-Pronged Test?

Equity and information asymmetry: It is unrealistic and unfair to demand that a defendant prove the state’s reasons or motives for delay; those facts reside with the prosecution. A balancing test with a burden-shifting mechanism better reflects where information lies and is consistent with Connecticut law on allocating burdens where one party is uniquely positioned to produce evidence (e.g., State v. Swebilius; State v. Ray).
Prejudice can exist without bad faith: Real and outcome-altering prejudice can result from negligent or inadvertent delays. A two-pronged test would immunize such cases, foreclosing relief even when the delay is unjustifiable and harmful (as in State v. Luck).
Connecticut tradition already supports balancing: Hodge balanced length, reasons, and prejudice in an analogous context, affirming that prearrest delay claims are amenable to a multifactor, fairness-based inquiry.
Public policy: With extended or eliminated limitations periods for serious crimes, due process must function as a carefully calibrated safety valve protecting fair trials, not as a near-impossible bar requiring proof of prosecutorial bad faith.

2) The Proposed Balancing Framework

Defendant’s initial burden: Show “actual and substantial prejudice” with specific, concrete, evidence-based facts—not speculation. Examples include identification of deceased or missing alibi witnesses whose testimony is not cumulative, or lost documentary evidence critical to the defense. Mere faded memories or generic claims of impairment usually do not suffice.
State’s burden of production: If the defendant meets step 1, the state must produce evidence explaining its reasons for the delay. The concurrence stresses this is not a heavy burden; prosecutors routinely account for investigative steps and timing.
Balancing: The court weighs the defendant’s proven prejudice against the state’s justification, asking whether proceeding after the delay offends “fundamental conceptions of justice” and the community’s sense of “fair play and decency.” Legitimate investigative delay will ordinarily defeat a due process claim, especially where prosecutors awaited evidence needed to prove guilt beyond a reasonable doubt.

Two important corollaries round out the framework:

Strength of the state’s case matters: Courts may consider the overall strength of the prosecution’s case when evaluating alleged prejudice.
Timing and review: Because prejudice often becomes concrete only at trial, courts may defer final resolution of prearrest-delay motions until after trial. The balancing is a question of law informed by the whole record and subject to plenary review.

3) Application to McFarland

Assuming without deciding that McFarland demonstrated actual and substantial prejudice from the three-decade delay, Justice Alexander found the state’s reasons compelling:

Legitimate investigative needs: The defendant’s confessions in the 1990s did not square neatly with crime scene evidence; prosecutors reasonably waited for more conclusive DNA testing.
Capital-case caution: When the murders occurred, Connecticut’s capital statute made a double homicide death-eligible. Exercising heightened caution before charging was reasonable and consistent with due process.

Balanced against the assumed prejudice, these justifications prevailed. The concurrence concluded there was no due process violation on the record.

Impact

While not controlling on its own, this concurrence carries notable implications:

Doctrinal direction: The opinion provides a thorough, Connecticut-specific roadmap for adopting a balancing test under the state constitution. It leverages Hodge, the Geisler framework, and persuasive state and federal decisions. Justice Alexander also notes “like Justice Ecker,” suggesting multiple justices favor this approach, potentially foreshadowing a shift.
Trial practice: Defense counsel should specifically document lost evidence and explain how its absence likely altered the outcome. Prosecutors should meticulously record investigative steps and reasons for delay, anticipating the burden to produce justification if prejudice is shown.
Long-delayed prosecutions: As limitation periods remain extended or abolished for serious offenses (e.g., murder under § 54-193(a) and certain sexual offenses under § 54-193(b)), due process balancing will be an increasingly important safeguard to ensure fair trials without unduly hamstringing legitimate investigations.
Standard of review and timing: Expect more courts to consider deferring final rulings on prearrest-delay motions until after trial, and to treat the ultimate balancing as a question of law on a full record.

Complex Concepts Simplified

Prearrest delay: Time between the alleged crime and the defendant’s arrest or formal charging. It occurs before Sixth Amendment “speedy trial” protections attach and is policed by due process.
Due process vs. statute of limitations: Statutes of limitations set deadlines for charging most crimes and are the primary bulwark against stale cases. Due process is a backstop: even when the legislature allows very late prosecutions, courts ensure the trial remains fundamentally fair.
Two-pronged test: Many courts require the defendant to show (1) actual, substantial prejudice and (2) unjustifiable, often bad-faith delay for tactical advantage. Critics say this is unfair because it forces defendants to prove the state’s motives.
Balancing test: A flexible approach. First, the defendant proves actual, substantial prejudice with concrete facts. Then the state explains its reasons for delay. The court balances both sides to decide if proceeding would offend fundamental fairness.
Actual and substantial prejudice: A real, non-speculative impairment that likely affected the outcome—such as the death of a unique alibi witness or loss of critical documents not replaceable by other evidence. Mere faded memory is usually not enough, especially if contemporaneous records or other witnesses can fill the gap.
Legitimate investigative delay: Time spent developing the case responsibly—waiting for scientific testing (such as DNA), corroboration of confessions, or protection of undercover operations. Prosecutors are not required to charge as soon as probable cause exists.
Burden shifting: The defendant bears the initial burden to prove prejudice. If met, the state must produce its reasons for delay. The ultimate question—balancing prejudice against justification—remains with the court.
Geisler analysis: Connecticut’s framework for interpreting the state constitution using six factors (including federal precedents, state precedents, other state courts’ decisions, text, history, and public policy). Here, the concurrence emphasizes state precedents, other states’ decisions, and public policy.

Practical Takeaways

For defendants:
- Develop a detailed record of lost evidence: who, what, when, and why it matters. Show why the loss is irreparable and outcome-significant, not cumulative or speculative.
- Be prepared to renew prearrest-delay motions after trial to leverage the full record.
For prosecutors:
- Maintain a clear chronology explaining investigative steps and reasons for timing. Document scientific testing timelines, witness issues, and any strategic caution in serious cases.
- Anticipate that courts may consider the overall strength of your case when assessing claimed prejudice.
For trial courts:
- Consider deferring final rulings on prearrest-delay motions until after trial where the prejudice showing is speculative pretrial.
- Treat the ultimate balancing as a question of law informed by the full record.

Conclusion

Justice Alexander’s concurrence in State v. McFarland is a meticulous and persuasive call to reorient Connecticut’s due process analysis of prearrest delay toward a burden-shifting balancing test. Anchored in Connecticut precedent (Hodge), fortified by a robust Geisler analysis, and attuned to contemporary public policy realities (extended and abolished limitations periods), the opinion charts a principled path that protects fair trials without compromising legitimate, sometimes lengthy investigations.

Although not the controlling opinion, the concurrence offers a clear, detailed framework that trial courts can readily implement and that the Supreme Court of Connecticut may adopt in a future case. Its core message is both simple and profound: fairness in delayed prosecutions is best judged by weighing concrete prejudice against genuine investigative need—not by imposing an almost insurmountable requirement that defendants prove the state’s motives. If embraced, this approach would align Connecticut with a growing number of jurisdictions that have concluded the balancing test is the sounder constitutional rule for prearrest delay.