Whether a criminal defendant who has established prejudice from the government's pre-charging delay must show that delay was the result of the government's intentional and bad faith tactical decisions to establish a due process violation

QUESTION PRESENTED In US. v. Marion, 404 U.S. 307, 322-25 (1971), this Court recognized that pre-charging delay could violate a defendant’s due process rights. The Marion Court did not establish a test for determining exactly when pre-charging delay violates due process, but cautioned the lower courts that such determinations “will necessarily involve a delicate judgement based on the circumstances of each case.” Marion, 404 U.S. at 325. In U.S. v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), this Court clarified Marion and held that while proof of prejudice is required to establish a due process claim, prejudice alone is not dispositive of the issue, as courts are required to “consider the reason for the delay as well as the prejudice to the accused.” The Lovasco Court described its duty as ascertaining only whether the action of the government “violates those fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community’s sense of fair play and decency.” Lovasco, 431 U.S. at 790 (citations omitted). As for the lower courts, the Lovasco Court simply required them to “in the first instance, the task of applying the settled principles of due process ...to the particular circumstances of individual cases.” Lovasco, 431 U.S. 796. ii Despite Marion and Lovasco calling for the prejudice suffered by the defendant to be balanced against the reason for the delay to ascertain whether settled principles of due process were violated by the government’s pre-charging delay, the Kansas Supreme Court held that to succeed on a pre-charging due process claim defendants must to show two things: “First, that the delay caused actual and substantial prejudice; and second, that the State acted in bad faith.” State v. Shields, 315 Kan. 814, 829-30, 511 P.3d 931, 946 (2022) (emphasis added). Thus, the question presented is this: Whether a criminal defendant who has established prejudice from the government's pre-charging delay must show that delay was the result of the government's intentional and bad faith tactical decisions to establish a due process violation. iii