State v. McFarland (Second Concurrence)

Summary

The concurrence agrees that the state constitution requires a balancing test for claims that a lengthy prearrest delay deprived a defendant of a fair trial, rather than requiring proof of intentional bad faith. Applying that framework, it concludes that the defendant did not establish a due process violation because the prejudice was uncertain and the delay was substantially justified by the investigative limits of the available DNA technology. It also agrees that the deceased witness's hearsay statements were properly excluded, while suggesting that trial courts may consider admitting evidence in a borderline hearsay category to mitigate delay-related prejudice.