More than 18 months after federal criminal offenses were alleged
to have occurred, respondent was indicted for committing them.
Beyond an investigative report made a month after the crimes were
committed, little additional information was developed in the
following 17 months. Claiming that the preindictment delay, during
which material defense testimony had been lost, deprived him of due
process, respondent moved to dismiss the indictment. The District
Court, which found that the delay had not been explained or
justified, and was unnecessary and prejudicial to respondent,
granted the motion to dismiss. The Court of Appeals affirmed,
concluding that the delay, which it found was solely attributable
to the Government's hope that other participants in the crime would
be discovered, was unjustified.
The Court of Appeals erred in affirming the
District Court's dismissal of the indictment. Pp. 431 U. S.
(a) Although the Speedy Trial Clause of the Sixth Amendment is
applicable only after a person has been accused of a crime and
statutes of limitations provide "the primary guarantee against
bringing overly stale criminal charges,'" United States v.
Marion, 404 U. S. 307,
404 U. S. 322,
those statutes do not fully define a defendant's rights with
respect to events antedating the indictment, and the Due Process
Clause has a limited role to play in protecting against oppressive
delay. Pp. 431 U. S.
(b) While proof of prejudice makes a due process claim ripe for
adjudication, it does not automatically validate such a claim, and
the reasons for the delay must also be considered. Pp. 431 U. S.
(c) To prosecute a defendant following good faith investigative
delay, as apparently existed in this case, does not deprive him of
due process even if his defense might have been somewhat prejudiced
by the lapse of time. Prosecutors are under no duty to file charges
as soon as probable cause exists but before they are satisfied that
they will be able to establish a suspect's guilt beyond a
reasonable doubt. Nor is there a constitutional requirement that
charges must be filed after there is sufficient evidence to prove
such guilt but before the investigation is complete. An immediate
arrest or indictment might impair the prosecutors' ability to
continue the investigation or obtain additional indictments,
Page 431 U. S. 784
would pressure prosecutors into resolving doubtful cases in
favor of early (and possibly unwarranted) prosecution, and would
preclude full consideration of the desirability of not prosecuting
in particular cases. P. 431 U. S.
532 F.2d 59, reversed.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, and
REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion,
p. 431 U. S.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
We granted certiorari in this case to consider the circumstances
in which the Constitution requires that an indictment be dismissed
because of delay between the commission of an offense and the
initiation of prosecution.
On March 6, 1975, respondent was indicted for possessing eight
firearms stolen from the United States mails, and for dealing in
firearms without a license. The offenses were alleged to have
occurred between July 25 and August 31, 1973, more than 18 months
before the indictment was filed. Respondent moved to dismiss the
indictment due to the delay. The District Court conducted a hearing
on respondent's motion at which the respondent sought to prove that
the delay was unnecessary and that it had prejudiced his defense.
In an effort to establish the former proposition, respondent
presented a Postal Inspector's report on his investigation that was
prepared one month after the crimes were committed,
Page 431 U. S. 785
and a stipulation concerning the post-report progress of the
probe. The report stated, in brief, that, within the first month of
the investigation, respondent had admitted to Government agents
that he had possessed and then sold five of the stolen guns, and
that the agents had developed strong evidence linking respondent to
the remaining three weapons. [Footnote 1
] The report also stated, however, that the
agents had been unable to confirm or refute respondent's claim that
he had found the guns in his car when he returned to it after
visiting his son, a mail handler, at work. [Footnote 2
] The stipulation into which the Assistant
United States Attorney entered indicated that little additional
information concerning the crimes was uncovered in the 17 months
following the preparation of the Inspector's report. [Footnote 3
To establish prejudice to the defense, respondent testified that
he had lost the testimony of two material witnesses due to the
delay. The first witness, Tom Stewart, died more than a year after
the alleged crimes occurred. At the hearing
Page 431 U. S. 786
respondent claimed that Stewart had been his source for two or
three of the guns. The second witness, respondent's brother, died
in April, 1974, eight months after the crimes were completed.
Respondent testified that his brother was present when respondent
called Stewart to secure the guns, and witnessed all of
respondent's sales. Respondent did not state how the witnesses
would have aided the defense had they been willing to testify.
The Government made no systematic effort in the District Court
to explain its long delay. The Assistant United States Attorney did
expressly disagree, however, with defense counsel's suggestion that
the investigation had ended after the Postal Inspector's report was
prepared. App. 9-10. The prosecutor also stated that it was the
Government's theory that respondent's son, who had access to the
mail at the railroad terminal from which the guns were "possibly
at 17, was responsible for the thefts,
at 13. [Footnote
] Finally, the prosecutor elicited somewhat cryptic testimony
from the Postal Inspector indicating that the case "as to these
particular weapons involves other individuals"; that information
had been presented to a grand jury "in regard to this case other
than . . . [on] the day of the indictment itself"; and that he had
spoken to the prosecutors about the case on four or five occasions.
Following the hearing, the District Court filed a brief opinion
and order. The court found that by October 2, 1973, the date of the
Postal Inspector's report, "the Government had
Page 431 U. S. 787
all the information relating to defendant's alleged commission
of the offenses charged against him," and that the 17-month delay
before the case was presented to the grand jury "had not been
explained or justified" and was "unnecessary and unreasonable." The
court also found that "[a]s a result of the delay defendant has
been prejudiced by reason of the death of Tom Stewart, a material
witness on his behalf." Pet. for Cert. 14a. Accordingly, the court
dismissed the indictment.
The Government appealed to the United States Court of Appeals
for the Eighth Circuit. In its brief the Government explained the
months of inaction by stating:
"[T]here was a legitimate Government interest in keeping the
investigation open in the instant case. The defendant's son worked
for the Terminal Railroad and had access to mail. It was the
Government's position that the son was responsible for the theft
and therefore further investigation to establish this fact was
". . . Although the investigation did not continue on a full
time basis, there was contact between the United States Attorney's
office and the Postal Inspector's office throughout . . . and
certain matters were brought before a Federal Grand Jury prior to
the determination that the case should be presented for indictment.
. . ."
Brief for United States in No. 75-1852 (CA8), pp. 5-6. The Court
of Appeals accepted the Government's representation as to the
motivation for the delay, but a majority of the court nevertheless
affirmed the District Court's finding that the Government's actions
were "unjustified, unnecessary, and unreasonable." 532 F.2d 59, 61
(1976). The majority also found that respondent had established
that his defense had been impaired by the loss of Stewart's
testimony because it understood respondent to contend that
"were Stewart's testimony available it would support
[respondent's] claim that he did not know that the guns were stolen
from the United States
Page 431 U. S. 788
The court therefore affirmed the District Court's
dismissal of the three possession counts by a divided vote.
We granted certiorari, 429 U.S. 884, and now reverse. [Footnote 7
In United States v. Marion, 404 U.
(1971), this Court considered the significance,
for constitutional purposes, of a lengthy preindictment delay. We
held that as far as the Speedy Trial Clause of the Sixth Amendment
is concerned, such delay is wholly irrelevant, since our analysis
of the language, history, and purposes of the Clause persuaded us
"a formal indictment or information or else the actual
restraints imposed by arrest and holding to answer a criminal
charge . . . engage the particular protections"
Page 431 U. S. 789
that provision. Id.
at 404 U. S. 320
] We went on to note
that statutes of limitations, which provide predictable,
legislatively enacted limits on prosecutorial delay, provide
"the primary guarantee against bringing overly stale criminal
charges.'" Id. at
404 U. S. 322, quoting United States v. Ewell,
383 U. S. 116,
383 U. S. 122
(1966). But we did acknowledge that the "statute of limitations
does not fully define [defendants'] rights with respect to the
events occurring prior to indictment," 404 U.S. at 404 U. S. 324,
and that the Due Process Clause has a limited role to play in
protecting against oppressive delay.
Respondent seems to argue that due process bars prosecution
whenever a defendant suffers prejudice as a result of preindictment
delay. To support that proposition, respondent relies on the
concluding sentence of the Court's opinion in Marion,
where, in remanding the case, we stated that "[e]vents of the trial
may demonstrate actual prejudice, but at the present time
appellees' due process claims are speculative and premature."
at 404 U. S. 326
But the quoted sentence establishes only that proof of actual
prejudice makes a due process claim concrete and ripe for
adjudication, not that it makes the claim automatically valid.
Indeed, two pages earlier in the opinion we expressly rejected the
argument respondent advances here:
"[W]e need not . . . determine when and in what circumstances
actual prejudice resulting from pre-accusation delays requires the
dismissal of the prosecution. Actual
Page 431 U. S. 790
prejudice to the defense of a criminal case may result from the
shortest and most necessary delay; and no one suggests that every
delay caused detriment to a defendant's case should abort a
at 404 U. S.
-325. (Footnotes omitted.) Thus, Marion
makes clear that proof of prejudice is generally a necessary but
not sufficient element of a due process claim, and that the due
process inquiry must consider the reasons for the delay as well as
the prejudice to the accused.
The Court of Appeals found that the sole reason for the delay
here was "a hope on the part of the Government that others might be
discovered who may have participated in the theft. . . ." 532 F.2d
at 61. It concluded that this hope did not justify the delay, and
therefore affirmed the dismissal of the indictment. But the Due
Process Clause does not permit courts to abort criminal
prosecutions simply because they disagree with a prosecutor's
judgment as to when to seek an indictment. Judges are not free, in
defining "due process," to impose on law enforcement officials our
"personal and private notions" of fairness and to "disregard the
limits that bind judges in their judicial function." Rochin v.
California, 342 U. S. 165
342 U. S. 170
(1952). Our task is more circumscribed. We are to determine only
whether the action complained of -- here, compelling respondent to
stand trial after the Government delayed indictment to investigate
further -- violates those "fundamental conceptions of justice which
lie at the base of our civil and political institutions,"
Mooney v. Holohan, 294 U. S. 103
294 U. S. 112
(1935), and which define "the community's sense of fair play and
decency," Rochin v. California, supra
at 342 U. S. 173
See also Ham v. South Carolina, 409 U.
, 409 U. S. 526
(1973); Lisenba v. California, 314 U.
, 314 U. S. 236
(1941); Hebert v. Louisiana, 272 U.
, 272 U. S. 316
(1926); Hurtado v. California, 110 U.
, 110 U. S. 535
It requires no extended argument to establish that prosecutors
do not deviate from "fundamental conceptions of
Page 431 U. S. 791
justice" when they defer seeking indictments until they have
probable cause to believe an accused is guilty; indeed it is
unprofessional conduct for a prosecutor to recommend an indictment
on less than probable cause. [Footnote 9
] It should be equally obvious that prosecutors
are under no duty to file charges as soon as probable cause exists,
but before they are satisfied they will be able to establish the
suspect's guilt beyond a reasonable doubt. To impose such a duty
"would have a deleterious effect both upon the rights of the
accused and upon the ability of society to protect itself,"
United States v. Ewell, supra
at 383 U. S. 120
From the perspective of potential defendants, requiring
prosecutions to commence when probable cause is established is
undesirable because it would increase the likelihood of unwarranted
charges being filed, and would add to the time during which
defendants stand accused but untried. [Footnote 10
] These costs are by no means
insubstantial, since, as we recognized in Marion,
"interfere with the defendant's liberty, . . . disrupt his
employment, drain his financial resources, curtail his
associations, subject him to public obloquy, and create anxiety in
him, his family and his friends."
404 U.S. at 404 U. S. 320
From the perspective of law enforcement officials, a requirement of
immediate prosecution upon probable cause is equally unacceptable,
because it could make obtaining proof of guilt beyond a reasonable
Page 431 U. S. 792
by causing potentially fruitful sources of information to
evaporate before they are fully exploited. [Footnote 11
] And from the standpoint of the
courts, such a requirement is unwise because it would cause scarce
resources to be consumed on cases that prove to be insubstantial,
or that involve only some of the responsible parties or some of the
criminal acts. [Footnote 12
Thus, no one's interests would be well served by compelling
prosecutors to initiate prosecutions as soon as they are legally
entitled to do so. [Footnote
It might be argued that, once the Government has assembled
sufficient evidence to prove guilt beyond a reasonable doubt, it
should be constitutionally required to file charges promptly, even
if its investigation of the entire criminal transaction is not
complete. Adopting such a rule, however, would have many of the
same consequences as adopting a rule requiring immediate
prosecution upon probable cause.
First, compelling a prosecutor to file public charges as soon as
the requisite proof has been developed against one
Page 431 U. S. 793
participant on one charge would cause numerous problems in those
cases in which a criminal transaction involves more than one person
or more than one illegal act. In some instances, an immediate
arrest or indictment would impair the prosecutor's ability to
continue his investigation, thereby preventing society from
bringing lawbreakers to justice. In other cases, the prosecutor
would be able to obtain additional indictments despite an early
prosecution, but the necessary result would be multiple trials
involving a single set of facts. Such trials place needless burdens
on defendants, law enforcement officials, and courts.
Second, insisting on immediate prosecution once sufficient
evidence is developed to obtain a conviction would pressure
prosecutors into resolving doubtful cases in favor of early -- and
possibly unwarranted -- prosecutions. The determination of when the
evidence available to the prosecution is sufficient to obtain a
conviction is seldom clear-cut, and reasonable persons often will
reach conflicting conclusions. In the instant case, for example,
since respondent admitted possessing at least five of the firearms,
the primary factual issue in dispute was whether respondent knew
the guns were stolen as required by 18 U.S.C. § 1708. Not
surprisingly, the Postal Inspector's report contained no direct
evidence bearing on this issue. The decision whether to prosecute,
therefore, required a necessarily subjective evaluation of the
strength of the circumstantial evidence available and the
credibility of respondent's denial. Even if a prosecutor concluded
that the case was weak and further investigation appropriate, he
would have no assurance that a reviewing court would agree. To
avoid the risk that a subsequent indictment would be dismissed for
preindictment delay, the prosecutor might feel constrained to file
premature charges, with all the disadvantages that would entail.
Page 431 U. S. 794
Finally, requiring the Government to make charging decisions
immediately upon assembling evidence sufficient to establish guilt
would preclude the Government from giving full consideration to the
desirability of not prosecuting in particular cases. The decision
to file criminal charges, with the awesome consequences it entails,
requires consideration of a wide range of factors in addition to
the strength of the Government's case, in order to determine
whether prosecution would be in the public interest. [Footnote 15
] Prosecutors often need
more information than proof of a suspect's guilt, therefore, before
deciding whether to seek an indictment. Again, the instant case
provides a useful illustration. Although proof of the identity of
the mail thieves was not necessary to convict respondent of the
possessory crimes with which he was charged, it might have been
crucial in assessing respondent!s culpability, as distinguished
from his legal guilt. If, for example, further investigation were
to show that respondent had no role in or advance knowledge of the
theft, and simply
Page 431 U. S. 795
agreed, out of paternal loyalty, to help his son dispose of the
guns once respondent discovered his son had stolen them, the United
States Attorney might have decided not to prosecute, especially
since, at the time of the crime, respondent was over 60 years old
and had no prior criminal record. [Footnote 16
] Requiring prosecution once the evidence of
guilt is clear, however, could prevent a prosecutor from awaiting
the information necessary for such a decision.
We would be most reluctant to adopt a rule which would have
these consequences absent a clear constitutional command to do so.
We can find no such command in the Due Process Clause of the Fifth
Amendment. In our view, investigative delay is fundamentally unlike
delay undertaken by the Government solely "to gain tactical
advantage over the accused," United States v. Marion,
U.S. at 404 U. S. 324
precisely because investigative delay is not so one-sided.
] Rather than
deviating from elementary standards of "fair play and decency," a
prosecutor abides by them if he refuses to seek indictments until
he is completely satisfied that he should prosecute and will be
able promptly to establish guilt beyond a reasonable doubt.
Penalizing prosecutors who defer action for these reasons would
subordinate the goal of "orderly expedition" to that of "mere
speed," Smith v. United
Page 431 U. S. 796
360 U. S. 1
360 U. S. 10
(1959). This the Due Process Clause does not require. We therefore
hold that to prosecute a defendant following investigative delay
does not deprive him of due process, even if his defense might have
been somewhat prejudiced by the lapse of time.
In the present case, the Court of Appeals stated that the only
reason the Government postponed action was to await the results of
additional investigation. Although there is, unfortunately, no
evidence concerning the reasons for the delay in the record, the
court's "finding" is supported by the prosecutor's implicit
representation to the District Court, and explicit representation
to the Court of Appeals, that the investigation continued during
the time that the Government deferred taking action against
respondent. The finding is, moreover, buttressed by the
Government's repeated assertions in its petition for certiorari,
its brief, and its oral argument in this Court, "that the delay was
caused by the government's efforts to identify persons in addition
to respondent who may have participated in the offenses." Pet. for
Cert. 14. [Footnote 18
must assume that these statements by counsel have been made in good
faith. In light of this explanation, it follows that compelling
respondent to stand trial would not be fundamentally unfair. The
Court of Appeals therefore erred in affirming the District Court's
decision dismissing the indictment.
we conceded that we could not determine in
the abstract the circumstances in which pre-accusation delay would
require dismissing prosecutions. 404 U.S. at 404 U. S. 324
More than five years later, that statement remains true. Indeed, in
the intervening years, so few defendants have established that they
were prejudiced by delay that neither this Court
Page 431 U. S. 797
nor any lower court has had a sustained opportunity to consider
the constitutional significance of various reasons for delay.
] We therefore
leave to the lower courts, in the first instance, the task of
applying the settled principles of due process that we have
discussed to the particular circumstances of individual cases. We
simply hold that in this case the lower courts erred in dismissing
The report indicated that the person to whom respondent admitted
selling five guns had told Government agents that respondent had
actually sold him eight guns which he, in turn, had sold to one
Martin Koehnken. The report also indicated that Koehnken had sold
three of these guns to undercover federal agents and that a search
of his house had uncovered four others. Finally the report stated
that the eighth gun was sold by one David Northdruft (or
Northdurft) to Government agents, and that Northdruft claimed
Koehnken had sold him the gun.
At the hearing on the motion to dismiss, respondent for the
first time admitted that he had possessed and sold eight guns.
The only contrary evidence came from respondent's purchaser who
told the Government investigators that he knew the guns were
In March 1975, the Inspector learned of another person who
claimed to have purchased a gun from respondent. App. 18. At the
hearing the parties disagreed as to whether this evidence would
have been admissible, since it did not involve any of the guns to
which the indictment related. Id.
at 9-10. In any event,
the Assistant United States Attorney stated that the decision to
prosecute was made before this additional piece of evidence was
Respondent admitted that he had not mentioned Stewart to the
Postal Inspector when he was questioned about his source of the
guns. He explained that this was because Stewart "was a bad tomato"
and "was liable to take a shot at me if I told [on] him."
at 13. Respondent also conceded that he did not
mention either his brother's or Stewart's illness or death to the
Postal Inspector on the several occasions in which respondent
called the Inspector to inquire about the status of the probe.
The Inspector's report had stated that there was no evidence
establishing the son's responsibility for the thefts.
The court unanimously reversed the dismissal of a fourth count
of the indictment charging respondent with dealing in firearms
without a license, since respondent had not alleged that the
missing witnesses could have provided exculpatory evidence on this
In addition to challenging the Court of Appeals' holding on the
constitutional issue, the United States argues that the District
Court should have deferred action on the motion to dismiss until
after trial, at which time it could have assessed any prejudice to
the respondent in light of the events at trial. This argument,
however, was not raised in the District Court or in the Court of
Appeals. Absent exceptional circumstances, we will not review it
here. See, e.g., Duignan v. United States, 274 U.
, 274 U. S. 200
(1927); Neely v. Martin K. Eby Constr. Co., 386 U.
, 386 U. S. 330
At oral argument, the Government seemed to suggest that its
failure to raise the procedural question in its brief in the Court
of Appeals should be excused because the proceedings in that court
were "skewed" by the fact that the District Court had based its
dismissal solely on Fed.Rule Crim.Proc. 48(b), and because the
issue was raised by the Government in its petition for rehearing.
Tr. of Oral Arg. 7-8, 51. But even assuming that the basis for the
District Court's dismissal could have "skewed" appellate
proceedings regarding the procedural question, the fact is that the
opening paragraph of the argument in the Government's brief below
recognized that the only issue before the court was a due process
question, and the remainder of the brief treated that question on
the merits. And even after the Court of Appeals issued its decision
based solely on the Due Process Clause, the Government's petition
for rehearing did not squarely raise the procedural issue as an
alternative ground for rehearing the case en banc.
also holds that Fed.Rule Crim.Proc. 48(b), which
permits district courts to dismiss indictments due to preindictment
or postindictment delay, is "limited to post-arrest situations."
404 U.S. at 404 U. S. 319
Since respondent was not arrested until after he was indicted, the
District Court plainly erred in basing its decision on this
ABA Code of Professional Responsibility DR 7-103(A) (1969); ABA
Project on Standards for Criminal Justice, The Prosecution Function
§ 3.9 (App.Draft 1971).
To the extent that the period between accusation and trial has
been strictly limited by legislative action, see, e.g.,
Speedy Trial Act of 1974, 88 Stat. 2076, 18 U.S.C. § 3161 et
(1970 ed., Supp. V), compelling immediate prosecutions
upon probable cause would not add to the time during which
defendants stand accused, but would create a risk of guilty persons
escaping punishment simply because the Government was unable to
move from probable cause to guilt beyond a reasonable doubt in the
short time available to it. Even absent a statute, of course, the
Speedy Trial Clause of the Sixth Amendment imposes restraints on
the length of post-accusation delay.
Cf. United States v. Watson, 423 U.
, 423 U. S. 431
(1976) (POWELL, J., concurring) ("Good police practice often
requires postponing an arrest, even after probable cause has been
established, in order to place the suspect under surveillance or
otherwise develop further evidence necessary to prove guilt to a
Defendants also would be adversely affected by trials involving
less than all of the criminal acts for which they are responsible,
since they likely would be subjected to multiple trials growing out
of the same transaction or occurrence.
See also Hoffa v. United States, 385 U.
, 385 U. S. 310
(1966), quoted in United States v. Marion,
404 U.S. at
404 U. S. 325
"There is no constitutional right to be arrested. The police are
not required to guess at their peril the precise moment at which
they have probable cause to arrest a suspect, risking a violation
of the Fourth Amendment if they act too soon, and a violation of
the Sixth Amendment if they wait too long. Law enforcement officers
are under no constitutional duty to call a halt to a criminal
investigation the moment they have the minimum evidence to
establish probable cause, a quantum of evidence which may fall far
short of the amount necessary to support a criminal
In addition, if courts were required to decide in every case
when the prosecution should have commenced, it would be necessary
for them to trace the day-by-day progress of each investigation.
Maintaining daily records would impose an administrative burden on
prosecutors, and reviewing them would place an even greater burden
on the courts. See also United States v. Marion, supra
404 U. S. 321
The Prosecution Function, supra,
9, at § 3.9(b):
"The prosecutor is not obliged to present all charges which the
evidence might support. The prosecutor may, in some circumstances
and for good cause consistent with the public interest, decline to
prosecute, notwithstanding that evidence may exist which would
support a conviction. Illustrative of the factors which the
prosecutor may properly consider in exercising his discretion
"(i) the prosecutor's reasonable doubt that the accused is in
"(ii) the extent of the harm caused by the offense;"
"(iii) the disproportion of the authorized punishment in
relation to the particular offense or the offender;"
"(iv) possible improper motives of a complainant;"
"(v) reluctance of the victim to testify;"
"(vi) cooperation of the accused in the apprehension or
conviction of others;"
"(vii) availability and likelihood of prosecution by another
Of course, in this case, further investigation proved
unavailing, and the United States Attorney ultimately decided to
prosecute based solely on the Inspector's report. But this fortuity
cannot transform an otherwise permissible delay into an
we noted with approval that the Government
conceded that a "tactical" delay would violate the Due Process
Clause. The Government renews that concession here, Brief for
United States 32, and expands it somewhat by stating:
"A due process violation might also be made out upon a showing
of prosecutorial delay incurred in reckless disregard of
circumstances, known to the prosecution, suggesting that there
existed an appreciable risk that delay would impair the ability to
mount an effective defense,"
at 32-33, n. 25. As the Government notes, however,
there is no evidence of recklessness here.
Pet. for Cert. 4, 8; Brief for United States
3, 8, 38; Tr. of Oral Arg. 4, 7, 10, 47.
Professor Amsterdam has catalogued some of the noninvestigative
reasons for delay:
"[P]roof of the offense may depend upon the testimony of an
undercover informer who maintains his 'cover' for a period of time
before surfacing to file charges against one or more persons with
whom he has dealt while disguised. . . . [I]f there is more than
one possible charge against a suspect, some of them may be held
back pending the disposition of others, in order to avoid the
burden upon the prosecutor's office of handling charges that may
turn out to be unnecessary to obtain the degree of punishment that
the prosecutor seeks. There are many other motives for delay, of
course, including some sinister ones, such as a desire to postpone
the beginning of defense investigation, or the wish to hold a
'club' over the defendant."
"Additional reasons for delay may be partly or completely beyond
the control of the prosecuting authorities. Offenses may not be
immediately reported; investigation may not immediately identify
the offender; an identified offender may not be immediately
apprehendable. . . . [A]n indictment may be delayed for weeks or
even months until the impaneling of the next grand jury. It is
customary to think of these delays as natural and inevitable . . .
, but various prosecutorial decisions -- such as the assignment of
manpower and priorities among investigations of known offenses --
may also affect the length of such delays."
Speedy Criminal Trial: Rights and Remedies, 27 Stan.L.Rev. 525,
527-728 (1975). See also Dickey v. Florida, 398 U. S.
, 398 U. S. 45
n. 9 (1970) (BRENNAN, J., concurring).
MR. JUSTICE STEVENS, dissenting.
If the record presented the question which the Court decides
today, I would join its well reasoned opinion. I am unable
Page 431 U. S. 798
to do so because I believe our review should be limited to the
facts disclosed by the record developed in the District Court and
the traditional scope of review we have exercised with regard to
issues of fact.
After a thorough hearing on the respondent's motion to dismiss
the indictment for prejudicial preindictment delay -- a hearing at
which both sides were given every opportunity to submit evidence
concerning the question -- the District Court found that "[t]he
Government's delay ha[d] not been explained or justified, and [was]
unnecessary and unreasonable." On appeal, the Court of Appeals
concurred, noting that the District Court's determination was
"supported by the evidence." 532 F.2d 59, 661 (CA8 1976). These
concurrent findings of fact make it improper, in my judgment, for
this Court to make its own determination that "the Government
postponed action . . . to await the results of additional
at 431 U.S. 796
. [Footnote 2/1
That determination is not supported by the record. [Footnote 2/2
Page 431 U. S. 799
majority opinion correctly points out that there was "no
evidence concerning the reasons for delay in the record," and yet
proceeds to accept as fact the representations in the Government's
briefs to the Court of Appeals and to this Court that "the
delay was caused by the government's efforts to identify persons in
addition to respondent who may have participated in the offenses.'"
Ibid. This finding of a continuing investigation, which
forms the foundation of the majority opinion, comes from statements
of counsel made during the appellate process. As we have said of
other unsworn statements which were not part of the record, and
therefore could not have been considered by the trial court:
"Manifestly, [such statements] cannot be properly considered by us
in the disposition of [a] case." Adickes v. Kress &
Co., 398 U. S. 144,
398 U. S.
157-158, n. 16. While I do not question the good faith
of Government counsel, it is not the business of appellate courts
to make decisions on the basis of unsworn matter not incorporated
in a formal record. The findings of the District Court, as approved
by the Court of Appeals, establish four relevant propositions: (1)
this is a routine prosecution; (2) after the Government assembled
all of the evidence on which it expects to establish respondent's
guilt, it waited almost 18 months to seek an indictment; (3) the
delay was prejudicial to respondent's defense; and (4) no reason
whatsoever explains the delay. We may reasonably infer that the
prosecutor was merely busy with other matters that he considered
more important than this case. The question presented by those
facts is not an easy one. Nevertheless, unless we are to conclude
that the Constitution imposes no constraints on the prosecutor's
power to postpone the filing of formal charges to suit his own
convenience, I believe we must affirm the Judgment of the Court of
Appeals. A contrary position "can be tenable only if one assumes
that the constitutional right to a fair hearing includes no
Page 431 U. S. 800
whatsoever to a prompt hearing." Moody v. Daggett,
429 U. S. 78
429 U. S. 91
(STEVENS, J., dissenting). The requirement of speedy justice has
been part of the Anglo-American common law tradition since the
Magna Carta. See id.
at 429 U. S. 92
5. It came to this country and was embodied in the early state
the Massachusetts Constitution of 1780,
Part I, Art. XI, and later in the Sixth Amendment to the United
States Constitution. As applied to this case, in which respondent
made numerous anxious inquiries of the Postal Inspectors concerning
whether he would be indicted, in which the delay caused substantial
prejudice to the respondent, and in which the Government has
offered no justification for the delay, the right to speedy justice
should be honored.
If that right is not honored in a case of this kind, the basic
values which the Framers intended to protect by the Sixth
Amendment's guarantee of a speedy trial, and which motivated
Congress to enact the Speedy Trial Act of 1974, will become nothing
more than managerial considerations for the prosecutor to
I respectfully dissent.
It is a settled rule of this Court that we will not review
concurrent findings of fact by two courts "in the absence of a
very obvious and exceptional showing of error.'" Berenyi v.
Immigration Director, 385 U. S. 630,
385 U. S. 635,
citing Graver Mfg. Co. v. Linde Co., 336 U.
S. 271, 336 U. S. 275.
Mr. Justice Jackson has called this a "seasoned and wise rule. . .
." Comstock v. Group of Investors, 335 U.
S. 211, 335 U. S.
An examination of the transcript of the District Court hearing
reveals that the Government produced no evidence
as to why
the indictment was delayed. The Government stipulated that it
proceeded before the grand jury only on evidence collected some 17
month before the presentation, and that no additional evidence had
caused it to proceed. Although the Court of Appeals surmised
"[n]o reason existed for the delay except a hope on the part of
the Government that others might be discovered who may have
participated in the theft[s] . . . ,"
532 F.2d at 61, even this assumption is not borne out by the
record of the District Court hearing. Although not under oath, the
prosecuting attorney indicated that the Government theorized that
the guns in question came from the respondent's son, who worked at
a freight terminal and would have had access to the mails. Yet even
this theory was never shown to be the cause of the delay. Not even
the prosecuting attorney stated as much.