Where preindictment delay has caused actual prejudice to the accused's ability to defend himself, does the Due Process Clause require (1) the defendant to prove that the delay was driven by an improper prosecutorial motive; or (2) that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay?

QUESTION PRESENTED In United States v. Lovasco, 431 U.S. 783 (1977), this Court considered the prosecution’s “long delay” of “more than 18 months” to indict the defendant for a crime. Id. at 784, 786. The Court concluded that on the facts before it, 18 months of delay for “further investigation” did not offend standards of “fair play and decency” so as to violate due process. Id. at 793-96. But the Court refrained from articulating “in the first instance” a general test for when prejudicial preindictment delay violates due process, instead opting to give lower courts “a sustained opportunity to consider the constitutional significance of various reasons for delay.” Id. at 796-97. Four decades later, all circuits, nearly every state high court, and the D.C. Court of Appeals have had the opportunity to consider the proper test for analyzing excessive preindictment delay, and they are entrenched in a well-acknowledged conflict. Applying Maryland’s rigid improper-motive test, the court below held that twenty years of delay before indicting sixteen years in which, by the State’s account, “no significant new evidence was due process. The question presented is: Where preindictment delay has caused actual prejudice to the accused’s ability to defend himself, does the Due Process Clause require (1) the defendant to prove that the delay was driven by an improper prosecutorial motive; or (2) that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay? @)