State v. McFarland (Concurrence)

Summary

Justice D’Auria concurred in the judgment affirming McFarland’s conviction but rejected the majority’s adoption of a state constitutional balancing test for claims of prejudicial prearrest delay. He would retain the federal two-pronged standard requiring actual substantial prejudice and an unjustifiable governmental purpose to gain a tactical advantage, concluding that McFarland failed to satisfy the second prong. Justice D’Auria, concurring in the judgment, would have affirmed on that narrower ground and criticized the new balancing test as unnecessary, burdensome, and insufficiently defined.