S057751, Opinion — State v. Stokes

44
Argued and submitted November 9, 2010, decision of Court of Appeals and
judgment of circuit court affirmed March 10, 2011
STATE OF OREGON,
Respondent on Review,
v.
EDWARD HARVEY STOKES,
Petitioner on Review.
(CC040431760; CA A129130; SC S057751)
248 P3d 953
Defendant was indicted by a grand jury for sexual assault, more than eight
years after the crimes occurred and on charges that had been considered and dis-
missed by a previous grand jury. A jury convicted defendant and, on appeal, the
Court of Appeals affirmed the trial court judgment without opinion. Defendant
sought review. Held: (1) the trial court acted within its discretion when it allowed
the prosecutor to resubmit previously dismissed charges to a subsequent grand
jury, and (2) defendant did not show that pre indictment delay violated due process,
because defendant showed either no actual prejudice, or only the slightest actual
prejudice, and no government culpability.
The decision of the Court of Appeals and the judgment of the circuit court are
affirmed.
On review from the Court of Appeals.*
Harrison Latto, Portland, argued the cause and filed the
briefs for petitioner on review.
Jeremy C. 	Rice, 	Assistant Attorney General, 	Salem,
argued the cause for respondent on review. Anna M. Joyce,
Deputy Solicitor General, John R. Kroger, Attorney General,
and Mary H. Williams, Solicitor General, filed the brief for
respondent on review.
Before De Muniz, Chief Justice, and Durham, Balmer,
Kistler, Walters, and Linder, Justices.**
* 	Appeal from Multnomah County Circuit Court, Alicia Fuchs, Judge. 229 Or
App 97, 211 P3d 381 (2009).
** Gillette, J., retired December 31, 2010, and did not participate in the deci-
sion of this case. Landau, J., did not participate in the consideration or decision of
this case.

as 350 Or 	45
LINDER,J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.

State v. Stokes
LINDER,J.
In 1996, the state submitted to a grand jury two
counts of sexual assault against defendant. The grand jury
declined to indict, returning a "not true bill." In 2004, the
state obtained court approval to resubmit the 1996 charges to
a second grand jury. The state then presented those charges
to a grand jury, along with two additional counts of sexual
assault of a second victim. The second grand jury indicted
defendant on all four counts. After a jury trial, defendant was
convicted of all charges. Defendant appealed and, on appeal,
the Court of Appeals affirmed without opinion. State v.
Stokes, 229 Or App 97, 211 P3d 381 (2009). On review to this
court, defendant challenges his convictions on two grounds.
First, he argues that the trial court erred, under ORS
132.430(2), 1 in allowing the state to resubmit the 1996
charges to a second grand jury. Second, he argues that the
period of over eight years between the crimes and defendant's
indictment violated his right to due process under the
Fourteenth Amendment to the United States Constitution. 2
We affirm the decision of the Court of Appeals and the judg-
ment of the circuit court.
I. 	HISTORICAL AND PROCEDURAL FACTS
The relevant facts are not in dispute. In 1996, a
grand jury declined to indict defendant for sodomy and sex-
ual abuse of the first victim, an adult male friend of defen-
dant. In the two months that followed, prosecutors inter-
viewed two more men, one of them the brother of the first
victim, who also claimed to have been sexually abused by
defendant. In September 1996, defendant received a lengthy
sentence in California on unrelated charges. The prosecutor
in Oregon anticipated that, in light of that sentence, defen-
dant would serve his life in the California prison without
being paroled. He therefore halted the investigation of defen-
dant to preserve public funds.
1 ORS 132.430(2) is set out later in this opinion.
2 The Fourteenth Amendment to the United States Constitution provides, in
part, that "[n]o state shall * * * deprive any person oflife, liberty, or property, with-
out due process oflaw."

Cite as 350 Or 44 (2011) 	47
The prosecutor informed the police department that
the case was closed. The police retained the evidence from the
investigation for about three years. Then, in 1999 and 2000,
the police department purged its evidence file on the case,
destroying most of it. Specifically, the police destroyed a
recording of the first victim's 9-1-1 call, the contents of a rape
kit, the victim's clothing, and towels and clothing taken from
defendant's house the day after the assault. 3 The only evi-
dence remaining in the police file were photographs taken of
the first victim the day after the assault, which were stored
separately from the other evidence.
Eight years after the case was closed, in April 2004,
a prosecutor in the district attorney's office learned that
defendant's California conviction was reversed on appeal and
that defendant intended to return to Oregon or Washington.
The prosecutor-a different one than the prosecutor who had
handled the case in 1996-reopened defendant's case and
sought a court order to resubmit to a grand jury the charges
relating to the first victim. The trial court granted the order,
concluding that "evidence not available to the previous grand
jury is now available, and that the ends of justice will be best
served by the resubmission * * *." The state then resubmit-
ted to the grand jury the initial charges and submitted for the
first time charges of sodomy and sexual abuse of one of the
additional victims (the brother of the first victim) who had
come forward after the initial not true bill. The grand jury
indicted defendant in May 2004, more than eight years after
the crimes, but within the nine-year statute oflimitations. 4 A
subsequent jury trial resulted in defendant's convictions on
all four counts.
3 The detective who authorized the destruction of the evidence testified that he
could not confirm that the police department had ever had the 9-1-1 tapes in its
possession. For purposes of our review. we may presume that the tapes were
included in the files that police later purged, because we nonetheless conclude that
defendant failed to demonstrate a due process violation.
4 Under ORS 131.125(2), the statute of limitations for sodomy and first and
second-degree sexual abuse of an adult victim is six years. Under ORS
131.145(2)(a), the limitation period is tolled "[a]ny time when the accused is not an
inhabitant of or usually resident within this state[.]" In this case, the statute was
tolled while defendant was in custody in California. The maximum time thata stat-
ute oflimitations may be tolled is three years. ORS 131.155. The practical result, in
this case, was a nine-year statute oflimitations.

State v. Stokes
Defendant appealed. He argued to the Court of
Appeals, as he had to the trial court, that the resubmission of
the initial charges violated ORS 132.430(2), which prohibits
resubmission of dismissed charges to a grand jury without a
court order. He also argued that the Due Process Clause pro-
hibited the state from indicting him more than eight years
after his crimes, notwithstanding the nine-year statute of
limitations. The Court of Appeals affirmed the conviction
without an opinion. Defendant petitioned for review, renew-
ing the arguments that he had advanced on appeal. We
allowed review to decide what standard governs a trial
court's decision to allow the resubmission of charges under
ORS 132.430(2) and to consider whether the preindictment
delay in this case violated due process. 5
II. 	ANALYSIS
A 	Resubmission Under ORS 132.430(2)
We begin with defendant's argument that, under
ORS 132.430(2), the trial court erred in allowing the state to
resubmit the 1996 charges to a second grand jury in 2004.
That statute provides:
"When an indictment indorsed 'not a true bill' has been
filed with the clerk of the court, the effect thereof is to dis-
miss the charge; and the same cannot be again submitted to
or inquired of by the grand jury unless the court so orders."
ORS 132.430(2). Citing State v. Turner, 104 Or 334, 207
P 602 (1922), defendant urges that a circuit court may
authorize resubmission of charges to a grand jury only when
it is "in the interest of justice" to do so. See id. at 339-40
(describing the "evident design" of the statute). Here, defen-
dant contends that resubmission was not in the interest of
justice, because the state sought resubmission eight years
after the case was closed, and was motivated to do so because
"Defendant also seeks review of the trial court's decision to admit evidence at
trial of defendant's earlier, uncharged sexual assaults of two men not involved in
the crimes charged here. The trial court allowed the evidence as relevant to
whether the second victim consented to the sexual contact with defendant, as
defendant argued at trial. We accepted review of this case to determine the propri-
ety of defendant's indictment and we decline to review the evidentiary issue. See
ORAP 9.20(2) ("If the Supreme Court allows a petition for review, the court may
limit the questions on review.").

Cite as 350 Or 44
defendant had been released unexpectedly from California.
Defendant asserts that the state was merely reassessing the
cost-benefit analysis of whether to pursue the prosecution,
which is not an adequate basis for resubmission. The state
counters that the resubmission of the charges in this case
was based on the existence of evidence that was not available
at the time of the original grand jury proceeding-i.e., the
complaints of additional victims-and that the trial court's
order 	authorizing 	resubmission 	was 	proper 	under 	the
statute.
To determine the legislative intent behind ORS
132.430(2) and, in particular, whether resubmission under
these circumstances comported with the statute, we begin
with text and context. See State v. Gaines, 346 Or 160, 171,
206 P3d 1042 (2009) (text and context are considered at first
level of statutory analysis). The text of ORS 132.430(2) is
straightforward. It requires dismissal of charges after a not
true bill and bars resubmission of dismissed charges "unless
the court so orders." The statute does not, however, identify
what the trial court is to consider in issuing or declining to
issue such an order. Given that silence, the statute's text, in
and of itself, is of little help in resolving the particular issue
before us. More helpful in that regard is the context of the
statute, which includes " 'the preexisting common law and
the statutory framework within which the law was enacted.' "
Ram Technical Services, Inc. v. Koresko, 346 Or 215, 232, 208
P3d 950 (2009) (quoting Stevens v. Czerniak, 336 Or 392, 401,
84 P3d 140 (2004)). The context also includes case law inter-
preting the statute. See State v. Sullens, 314 Or 436, 443, 839
P2d 708 (1992).
The statute in its current form dates to 1864. See
General Laws of Oregon, Crim Code, ch VII, § 65 (Deady
1845-1864). 6 It replaced the contrary common-law rule that
6 Nonsubstantive changes were made to the statute in 1972. The 1864 statute
provided: "[w]hen an indictment, indorsed 'not a true bill,' has been presented in
court and filed, the effect thereof is to dismiss the charge; and the same cannot be
again submitted to or enquired of' by the grand jury, unless the court so order."
General Laws of' Oregon, Crim Code, ch VII,§ 65(Deady1845-1864). ln 1972, the
legislature omitted the reference to presentment in the first clause and updated
the spelling and grammar of the section. The meaning of the statute has not
changed.

State v. Stokes
allowed a prosecutor to resubmit charges without limit or
oversight. See Wayne R. LaFave et al., 4 Criminal Procedure
§ 15.2(h), at 485-86 (3d ed 2007) (describing common-law
rule). 7 At the least, the decision to adopt a rule differing from
the common law implies a general intention to place some
limitation on a prosecutor's ability to resubmit charges to
subsequent 	grand 	juries. 	The 	question 	remains: 	what
limitation?
Although the statute has been in place since state-
hood, only one case has come to this court requiring us to
interpret it. That case, Turner, 104 Or 334, was decided in
1922. In Turner, a grand jury had, without a court order,
investigated and indicted the defendant on a charge on which
a different grand jury had earlier returned a not true bill. Id.
at 335. The issue was whether the statute requires a court
order when charges are reconsidered or resubmitted to any
grand jury or, instead, whether the statute applies only when
charges are reconsidered by the same grand jury that ini-
tially returned the not true bill. Id. at 335-36.
To resolve that issue, the court compared the statute
to similar statutes from other states as well as to the contrary
common-law rule, which either imposed no restriction on
resubmission of dismissed charges, or restricted only the
ability of the prosecutor to resubmit charges to the same
grand jury that returned a not true bill; the authority of the
grand jury itself was not impaired. Id. at 336-39. The court
observed that the text of Oregon's statute (now codified as
ORS 132.430(2)) was broader and divested the grand jury
itself of authority to reconsider previously dismissed charges
unless the grand jury did so by leave of the court. Id. at 339.
The statute did not, however, specify whether it applied only
to the same grand jury that had returned the not true bill, or
to subsequent grand juries as well. The court commented
that the "evident design" and "purpose" of the statute was to
prevent the resubmission of charges "unless authorized by an
order of the court made upon a showing that adequate reason
7 As LaFave explains, during the early part of this century, nearly half of the
states had adopted statutes requiring judicial approval for resubmissions to the
grand jury, and thus altering the common-law rule in those jurisdictions. Many
states have since repealed those laws, however, and such provisions are now found
in only a minority of the states. Id.

Cite as 350 Or 44 	51
exists, requiring that the charge be reconsidered in the inter-
est of justice." Id. at 339-40. Guided by that understanding of
the overall purpose of the statute, the court in Turner held
that a court order is required when a later grand jury under-
takes to reconsider charges dismissed by an earlier one,
because an opposite conclusion would not accomplish the
statute's purpose. Id. at 340.
As that description of Turner reveals, the issue
before the court in Turner did not involve the propriety of a
trial court order authorizing resubmission of charges to a
grand jury. Turner held only that "the statute places [a
charge's] revival or subsequent investigation in the exclusive
control of the court, and the consent of the court is a condition
precedent to the authority of the same or a subsequent grand
jury to inquire of the charge." Id. Turner thus provides, at
best, limited guidance on the question before us in this case.
Still, Turner's observation of the overall purpose of
the statute is consistent with other contextual sources that
we may consider. Oregon originally adopted the statute as
part of a criminal code that was based largely on New York
law. See Frederic E. Brown, The Sources of the Alaska and
Oregon Codes, 2 UCLA-Alaska L Rev 15, 31-33 (1972) (dis-
cussing in detail the sources of the criminal procedure provi-
sions in the 1864 Oregon criminal code). 8 The commentary to
the 1850 New York Code-the predecessor of the Oregon
statute-explained that the statute was "designed to provide
a convenient check upon the practice which now prevails, of
repeated applications to the grand jury for an indictment,
where it has been already dismissed." NY Code of Crim Proc,
title V, ch I, § 286, commentary (1850). The commentary fur-
ther noted that, under the common-law rule, the mere "per-
severance of the prosecutor" sometimes led to an indictment
after "frequent dismissals" and that the statute was intended
8 See also NY Code of Crim Proc, title V, ch I, §§ 285-86 (1850) (requiring a
court order for resubmission of charges after a not true bill). As Brown notes, the
Deady Code was based on the work of an 1854 Oregon territorial commission,
which adopted the entire 1850 New York Code, and on updates to that code by the
Field Commission in New York. 2 UCLA-Alaska L Rev at 31; see also 1855 Statutes
of Oregon, Advertisement (Asahel Bush 1855) (explaining that the statutes relat-
ing to "the manner of commencing and prosecuting actions at law, are taken, word
for word, from the New York Code").

State v. Stokes
to "prevent, on the one hand, the abuse referred to, and to
guard the interests of the public, on the other." Id.
Based 	on 	that 	commentary, 	we 	conclude 	that
Turner's "in the interest of justice" standard is apt, as long as
it is understood to embrace the kinds of factors that are rele-
vant to the decision to be made (resubmission of a charge to
the grand jury), such as the public's interest in avoiding pros-
ecutorial abuse and having persons who commit crimes
brought to justice. We review that type of decision under the
statute for abuse of discretion. See, e.g., State v. Langley, 314
Or 247, 257-58, 839 P2d 692 (1992) (review of trial court's
denial of defendant's motion to substitute appointed counsel,
based on factual findings and conclusion that defendant's
complaint was not "legitimate," is for abuse of discretion);
State v. Little, 249 Or 297, 311-12, 431P2d810 (1968)(review
of trial court's denial of defendant's motion for a change of
venue, based on whether defendant could receive a "fair and
impartial trial," is for abuse of discretion).
Here, in support of the motion seeking an order
allowing resubmission of the charges, the prosecutor pro-
vided an affidavit stating the basis for the motion. The affi-
davit explained that, after the first grand jury returned the
not true bill, two additional victims came forward with com-
plaints of sexual assault by defendant. The affidavit further
explained the substance of the new complaints, which were
both by two adult males who were acquainted with defendant
before he turned aggressive and sexually threatening. Those
two complaints described physical actions and emotional
manipulations by defendant that were similar to the ones
involved in the previously submitted charges.9 The additional
victims were not known to the prosecution when the first
grand jury deliberated. Given those representations, the trial
court in this case permissibly viewed those complaints as addi-
tional or new evidence for the grand jury's consideration. 10 The
9 For example, the victims described defendant as attempting to force sexual
contact and then relenting, repeatedly. All the victims described defendant making
similar appeals to their friendships or to favors that he had done for them.
10 The affidavit advised the court that the additional victims were not known to
the prosecution at the time of the first grand jury proceeding, which puts them
more clearly into a category of "new" evidence than if, for example, the state had
known about the additional victims from the outset but had chosen not to present

Cite as 350 Or 44
averments in the prosecutor's affidavit thus provided an ade-
quate basis to support the trial court's conclusion that resub-
mission of the previously considered charges to a subsequent
grand jury was "in the interest ofjustice." 11
Defendant nevertheless argues that resubmission
was unjust under the particular facts of this case, principally
because, in his view, "the real reason" the state sought resub-
mission was a "change in circumstances leading to a modified
cost-benefit analysis." Defendant emphasizes the fact that
prosecutors were aware of the additional victims within two
months after the first grand jury returned the not true bill,
but did not seek resubmission of the charges until eight years
had passed and defendant was unexpectedly released from
California custody. At that point, the state decided that
defendant's risk to public safety was worth the cost of prose-
cution. Defendant contends that the prosecutor's assessment
of the benefit of pursuing the charges, and not the presence of
new evidence, prompted the motion seeking a court order
authorizing resubmission. In defendant's view, a modified
"cost-benefit analysis" is never an 	adequate 	reason for
resubmission.
Defendant's framing of the issue confuses the basis
for seeking resubmission (new evidence) with why the prose-
cutor subjectively thought, given that new evidence, that it
was worthwhile to pursue the prosecution. Our inquiry is
whether the trial court decision to order resubmission was a
that evidence to the initial grand jury or had been unable to present it for some rea-
son. This case does not require us to consider if, in the latter circumstances, evi-
dence regarding the additional victims would be considered new evidence. We note,
however, that other jurisdictions that have considered that question have
answered in the affirmative. See State u. Ephamka, 878 P2d 647, 651 (Alaska App
1994) (concluding that resubmission was properly allowed based on newly auaila·
ble testimony that was not newly discovered) (citing People v. Ladsen, 111 Misc 2d
374, 444 ~'YS2d 362 (NY Sup Ct 1981)).
1' We do not mean to suggest that the existence of additional or new evidence is
the only valid criterion for a trial court's exercise of discretion in deciding whether
to allow or deny resubmission. That is the basis on which the prosecutor in this
case sought resubmission, and the most common basis for resubmission in cases in
other jurisdictions. See generally LaFave, 4 Criminal Procedure§ 15.2(h), at485-86
(describing newly discovered evidence as the most prevalent standard for resub-
mission, and as required by some state statutes). Our disposition of this case does
not require us to consider what other considerations or criteria might also be con-
sidered by a trial court in ruling on a requested order for resubmission of charges
to a grand jury.

54 	Statev.
permissible choice based on the information before it. See,
e.g., State u. Barone, 329 Or 210, 219, 986 P2d 5 (1999)
(reviewing trial court's denial of defendant's motion for
change of venue, considering only the evidence "that was
before the trial court at the time of the motion"). The statute
contemplates an ex parte application to the trial court, and
permits the court to make a decision based on the averred
facts before it and, presumably, other facts of which the court
might be aware or might choose to inquire. The prosecutor's
subjective cost-benefit assessment of whether a prosecution
would be worthwhile to pursue may have motivated the pros-
ecutor to seek an order permitting resubmission to the grand
jury, but that assessment was not the ground on which the
prosecutor relied in seeking the new order. The ground for
the prosecutor's motion was new evidence. 12
Here, the new evidence on which the prosecutor
relied in seeking resubmission permitted the trial court to
determine that resubmission was in the interest of justice.
We therefore conclude that the trial court did not abuse its
discretion, and thus that the trial court did not err in order-
ing resubmission of the two previously dismissed charges to
the grandjury.
B. 	Due Process and Preindictment Delay
We turn to the second issue: whether the Due Process
Clause prohibited the state from indicting defendant more
than eight years after the crimes were committed. Defendant
argues that his right to due process was violated by the delay,
notwithstanding the applicable nine-year statute of limita-
tions. In particular, defendant contends that his ability to
defend himself was prejudiced by the destruction of evidence
12 In his proposed "rule oflaw" in his brief to this court, defendant also argues
that resubmission was not in the interest of justice because of the eight-year delay
in his prosecution, during which time police purged their files of evidence they pre-
viously had gathered. We need not decide in this case under what circumstances
facts bearing on actual or likely prejudice from any delay in the resubmission of
charges must be disclosed by a prosecutor in seeking an order of resubmission.
Here, it suffices to observe that defendant did not make that argument to the trial
court; the record does not establish that the prosecutor was aware, at the time of
seeking resubmission, that the police had purged the evidence from their files; and,
as we later conclude in connection with defendant's due process claim, the record
does not, in all events, establish any actual prejudice as a result of the delay in this
case.

Cite as 350 Or 44 (2011) 	55
and the deaths of three potential witnesses during the delay.
Defendant concedes that the state did not delay his indict-
ment in bad faith, but urges that the state acted in reckless
disregard of the probable prejudice caused by a delay of over
eight years, which defendant asserts violated due process.
The state responds that the statute of limitations is the pri-
mary protection against prejudicial delay and that preindict-
ment delay violates due process only when (1) the govern-
ment 	intentionally 	delayed 	for 	tactical 	advantage 	and
(2) that delay substantially prejudiced the defendant. Accord-
ing 	to 	the state, 	defendant can show neither of those
elements. 13
We recently addressed a similar due process claim in
State v. Davis, 345 Or 551, 564, 201P3d185 (2008). In Davis,
we explained that the Supreme Court has 	declined to
announce a bright-line test for a successful due process claim
of preindictment delay. Id. at 569-71. Two of that Court's
decisions have addressed the issue: United States v. Marion,
404 US 307, 92 S Ct 455, 30 L Ed 2d 468 (1971) and United
States v. Lovasco, 431 US 783, 97 S Ct 2044, 52 L Ed 2d 752
13 Defendant argues in the alternative that we should presume prejudice from
the length of delay in this case, rather than requiring him to show actual prejudice.
The Supreme Court has held in this context, however, that prejudice will not be
presumed for purposes of the Due Process Clause. United States v. Lovasco, 431 US
783, 789, 97 S Ct 2044, 52 L Ed 2d 752 (1977) ("[P]roof of actual prejudice makes a
due process claim concrete and ripe for adjudication[.]"); see also State v. Davis, 345
Or 551, 575, 201P3d185 (2008) (due process claim requires "actual, not presumed,
substantial prejudice"}. Defendant also asks us to presume prejudice based on his
Sixth Amendment speedy trial right, under which egregious delay caused by gov-
ernment negligence entitles a defendant to dismissal of criminal charges without a
showing of actual prejudice. See Doggett v. United States, 505 US 647, 655-56, 112
S Ct 2686, 120 L Ed 2d 520 (1992) ("[E]xcessive delay presumptively compromises
the reliability of a trial in ways that neither party can prove or, for that matter,
identify."). The Sixth Amendment, however, protects a defendant only after indict-
ment or arrest, as the Supreme Court has made clear. Doggett, 505 US at 655; see
also United States v. Marion, 404 US 307, 321, 92 S Ct 455, 30 L Ed 2d 468 (1971)
(same). The Court in Marion, a case concerning precharging delay, explained that
there is "no need to press the Sixth Amendment into service to guard against the
mere possibility that pre-accusation delays will prejudice the defense in a criminal
case since statutes of limitation already perform that function." 404 US at 323
(emphasis added). The Court distinguished between the protections of the Sixth
Amendment (from egregious delay between arrest or indictment and trial), id. at
321; statutes of limitation (from the possibility of prejudice resulting from pre-
charging delay), id. at 322; and the Due Process Clause (from actual prejudice
resulting from precharging delay), id. at 324. If defendant is entitled to a remedy in
this case, in which he challenges a precharging delay within the statute oflimita-
tions, it must be under the Due Process Clause.

56 	State v. Stokes
(1977). From Marion and Lovasco, two requirements of a suc-
cessful due process claim are clear: (1) actual, nonspeculative
prejudice; and (2) some level of government culpability.
Lovasco, 431 US at 789-90. With regard to the second
requirement-government culpability-it is also clear that
so-called "investigative delay" never violates a defendant's
due 	process 	rights. 	Id. 	at 	796. 	Rather, 	the 	Court 	has
explained that statutes of limitation generally "provide 'the
primary guarantee against bringing overly stale criminal
charges' " and "the Due Process Clause has a limited role to
play in protecting against oppressive delay." Id. at 789 (quot-
ing Marion, 404 US at 322).
Neither Marion nor Lovasco, however, identify the
level of government culpability a defendant must show in a
successful due process claim of preindictment delay. See
Davis, 345 Or at 570 (discussing the same). The Court in
Marion accepted the government's concession that due proc-
ess "would require dismissal of the indictment if it were
shown at trial that the pre-indictment delay in this case
caused substantial prejudice to appellees' rights to a fair trial
and that the delay was an intentional device to gain tactical
advantage over the accused." 404 US at 324 (emphasis
added). The Court then stated, "we need not, and could not
now, determine when and in what circumstances actual prej-
udice resulting from pre-accusation delays requires the dis-
missal of the prosecution." Id. Six years later, in Lovasco, the
Court similarly stated that it "could not determine in the
abstract the circumstances in which preaccusation delay
would require dismissing prosecutions." 431 US at 796. The
Court concluded, "(w]e 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 cir-
cumstances of individual cases." Id. at 797.
Since Lovasco, as we explained in Davis, the lower
federal courts have divided into two camps on the question of
"whether reasons for preindictment delay, other than an
intentional delay to obtain a tactical advantage, may rise to
the level of a due process violation." 345 Or at 570-71. A
majority of the federal circuits have adopted a test that is
reflected in the state's argument here, requiring a showing of
intentional, tactical delay. Id. at 571; see also U.S. v. Crouch,

Cite as 350 Or 44 	57
84 F3d 1497, 1511 (5th Cir 1996) (discussing majority test).
The Ninth and the Fourth Circuits, by contrast, have estab-
lished a different test. Davis, 345 Or at 571. Under that
minority test, a court "consider(s] the government's reasons
for the delay, balancing the prejudice to the defendant with
the government's justification for the delay." U.S. v. Uribe-
Rios, 558 F3d 347, 358 (4th Cir 2009) (internal quotation
marks omitted) (citing U.S. v. Automated Med. Labs., Inc.,
770 F2d 399, 403 (4th Cir 1985)). Recklessness or even neg-
ligence on the government's part may satisfy the minority
test, if actual prejudice to the defendant weighs substantially
in the balancing. United States v. Mays, 549 F2d 670, 678
(9th Cir 1977) ("[A]lthough weighted less 	heavily than
deliberate delays, negligent conduct can also be considered
* * *.").14
As we will explain, we conclude that the minority
test more closely follows the consistent threads in the Court's
decisions-the disinclination to announce specific require-
ments for every case, the reliance on broad due process prin-
ciples, and the insistence that the statute of limitations is a
defendant's primary protection in this area, making due
process violations unusual. The majority test, by contrast,
forecloses the possibility that something other than inten-
tional, tactical delay may violate due process. The Court in
Lovasco explained that the appropriate inquiry is "only
whether the action complained of* * * violates those 'funda-
mental 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.'" 431 US at 790 (citations
omitted). The Court has left open the possibility that a delay
caused by something less than intentional government tac-
tics may violate those fundamental conceptions of justice. We
will do the same, until and unless the Court changes or nar-
rows its course. 15
14 See also United States v. Moran, 759 F2d 777, 783 (9th Cir 1985) ("Although
as established above, negligent governmental conduct may form a basis for uncon-
stitutional pre-indictment delay, our cases clearly require some showing of govern-
mental culpability to prove a deprivation of due process.").
Several other states considering the issue of the proper due process standard
for preindictment delay have also followed the minority test. See, e.g., Knotts v.
Facemire, 223 W Va 594, 603, 678 SE2d 847 (2009) (adopting Fourth Circuit bal-
ancing test); State v. Knickerbocker, 152 NH 467, 4 70, 880 A2d 419 (2005) (adopting

The majority test relies heavily on the passage in
Marion in which the Court accepted the government's conces-
sion regarding tactical delay. When taken in context, how-
ever, the relevant comments did not foreclose the minority
test. The entire discussion reads:
"[T]he statute oflimitations does not fully define the appel-
lees' rights with respect to the events occurring prior to
indictment. Thus, the Government concedes that the Due
Process Clause * * * would require dismissal of the indict-
ment if it were shown at trial that the pre-indictment delay
in this case caused substantial prejudice to appellees' rights
to a fair trial and that the delay was an intentional device to
gain tactical advantage over the accused. However, we need
not, and could not now, determine when and in what cir-
cumstances actual prejudice resulting from pre-accusation
delays requires the dismissal of the prosecution."
Marion, 404 US at 324 (citations omitted). In accepting the
government's concession, the Court cited two of its previous
due process cases, Brady v. Maryland, 373 US 83, 87, 83 S Ct
1194, 10 L Ed 2d 215 (1963) (due process violated when gov-
ernment suppresses evidence material to the defense), and
Napue v. Illinois, 360 US 264, 269, 79 S Ct 1173, 3 L Ed 2d
1217 (1959) (due process violated when government know-
ingly allows false testimony to go uncorrected). See also
Moore v. Illinois, 408 US 786, 794-98, 92 S Ct 2562, 33 L Ed
2d 706 (1972) (discussing both cases). In accepting the gov-
ernment's concession based on those cases, the Court seems
to have been acknowledging that, when tactical delay is prej-
udicial, it is usually because of lost evidence, and Brady and
Napue have established that due process would be violated
by an intentional, tactical loss of evidence by the state. The
Court did not expressly require tactical government delay for
a due process violation, however.
balancing test); State v. Rippy, 626 A2d 334, 338 (Me 1993) (applying a balancing
test, citing Lovasco); State v. Chavez, 111Wash2d 548, 558-60, 761P2d607 (1988)
(adopting balancing test); People v. Lawson, 67 Ill 2d 449, 460-61, 367 NE2d 1244
(1977) (supplemental opinion on denial of rehearing) (interpreting Lovasco to
require a balancing test between a defendant's actual prejudice and the state's rea-
sons for the delay).

Cite as 350 Or 44 	59
The minority test is consistent with the govern-
ment's concession in Marion as well as with the Court's
adherence to "elementary standards" of due process. Lovasco,
431 US at 795; see also Marion, 404 US at 325 (due process
claim of preindictment delay "necessarily involve(s] a deli-
cate judgment based on the circumstances of each case"). The
flexibility in the minority test is faithful to the Court's due
process jurisprudence in general, which in a variety of con-
texts favors multi-factor tests and balancing over bright-line
rules. E.g., BMW of North America, Inc. v. Gore, 517 US 559,
574-75, 116 S Ct 1589, 134 L Ed 2d 809 (1996) (describing
three "guideposts" to analyze whether a punitive damages
award violates due process); Mathews v. Eldridge, 424 US
319, 335, 96 S Ct 893, 47 L Ed 2d 18 (1976) (announcing a
three-part balancing test to determine whether a property or
liberty deprivation violates due process). Consistently with
the Court's overriding concern with "fair play and decency,"
Lovasco, 431 US at 795, the minority test allows for the pos-
sibility that prejudicial preindictment delay may violate the
Due Process Clause, based on the circumstances of the case,
where the government culpably caused that delay, although
not for a tactical advantage.
We begin our analysis under the minority test with
whether defendant has met his burden of showing actual,
nonspeculative prejudice. Defendant argues that he was prej-
udiced by the destruction of evidence and the death of possi-
ble witnesses. He urges that some speculation is inevitable in
any claim that lost evidence was prejudicial, but that here,
where the state intentionally destroyed evidence that it could
have retained, his burden to show actual prejudice should be
relaxed, or shifted to the state.
We may readily resolve defendant's request to relax
or shift the burden on the prejudice inquiry. As we earlier dis-
cussed, the Supreme Court has explained that statutes of
limitation, and not due process, protect defendants against
the 	possible 	prejudice 	caused 	by 	preindictment 	delay.
Marion, 404 US at 322-24. That distinction reflects a reality
observed by the Court in Marion: "Possible prejudice is inher-
ent in any delay, however short; it may also weaken the

60 	State v. Stokes
Government's case." Id. at 322. Indeed, the destroyed evi-
dence in this case may have supported the state's case; both
parties were forced to proceed without it.16 Under Marion,
the possibility for prejudice inherent in any delay is the prov-
ince of the statute of limitations; due process is concerned
only with actual prejudicial delay. Id. The burden to demon-
strate actual prejudice is properly placed on defendant here,
because he was prosecuted within the statute oflimitations.
We note that defendant points to destroyed evidence
and dead witnesses that relate only to the assault of the first
victim; he claims no prejudice regarding the delay of indict-
ment for the assault of the second victim. As to the charges
involving the first victim, defendant asserts that his defense
was prejudiced by the destruction of the rape kit, the victim's
clothing, and the towels and clothing seized from defendant's
house. Presumably, defendant would contend that the rape
kit, clothing, and towels may have been inconsistent with the
state's theory, although defendant does not offer a specific
reason why the loss of that evidence was prejudicial. Indeed,
without knowing the quality of that evidence, defendant can
only speculate that it might have helped his defense. That
speculation, however, is insufficient to demonstrate actual
prejudice and cuts against defendant as sharply as it cuts in
his favor. See Davis, 345 Or at 575 ("[T]he light they [the
pieces of evidence] shed might have been favorable to defen-
dant. Or they might have had no evidentiary value, or they
might have bolstered the case against defendant. Either con-
clusion requires speculation."). The fact that the police in
good faith purged physical evidence does not, on its own,
demonstrate actual prejudice.
Defendant also points to the deaths of three poten-
tial witnesses and to the destruction of the 9-1-1 tape, but his
argument in that regard is equally unavailing. Defendant
emphasizes that the first victim's roommate, who picked up
the first victim from a 7-Eleven store after the crime, and
whom defendant's first attorney (retained in 1996) had on a
' 6 Defendant does not allege, nor is there any evidence indicating, that the
police purged their evidence in bad faith. If defendant were to have alleged bad
faith, the burden to show bad faith would be his. See Arizona v. Youngblood, 488
US 51, 58, 109 S Ct 333, 102 L Ed 2d 281 (1988) (due process violation for failure to
preserve evidence requires defendant to show bad faith on government's part).

Cite as 350 Or 44
list of people to interview, could have testified as to the first
victim's demeanor shortly after the crime. 17 In particular,
defendant contends that the roommate might have testified
that the victim had a "calm, rather than agitated demeanor"
shortly after the assault. Defendant makes the same argu-
ment for why the destruction of the 9-1-1 tape was prejudi-
cial-it might have shown that the victim had a calm
demeanor after the crime. Defendant can point to no evi-
dence, however, supporting a conclusion that the roommate
or the 9-1-1 tape was more likely to help rather than hurt
defendant's case. He can only speculate as to the victim's
demeanor. Again, due process is concerned solely with delay
that is actually prejudicial. See id. at 575 ("The loss of the
[9-1-1] recording does not establish actual prejudice, because
the asserted value of its contents is, again, entirely specula-
tive."); see also United States v. Pallan, 571F2d497, 501 (9th
Cir), cert den, 436 US 911 (1978) (protection from lost testi-
mony " 'generally falls solely within the ambit of the statute
oflimitations' ")(quoting 61 Minn L Rev 509, 517 (1977)).
Defendant has therefore failed to show substantial,
actual prejudice. To be sure, some of the reason that defen-
dant can only speculate as to the value of the missing evi-
dence is that so much of the evidence is missing-no piece of
clothing remains to indicate the value of the towels from
defendant's house, no portion of the 9-1-1 tape remains to
indicate whether the roommate's testimony would have sup-
ported the defense. Further, because the delay was pro-
longed, more evidence was destroyed or otherwise lost (e.g.,
the victim's clothing was destroyed in March 1999, the rape
kit was destroyed in May 2000, and the roommate died in
2002). Nevertheless, defendant has demonstrated only the
slightest potential prejudice caused by the delay, which,
"[e]ven if*** sufficient to be placed on the scale for purposes
of the minority balancing test, * * * at most would weigh very
lightly. That, in turn, would mean that the reasons for delay
must weigh heavily in defendant's favor and against the
state." Davis, 345 Or at 576 (citing Mays, 549 F2d at 678).
Defendant points to two other missing witnesses as well: his landlord's hus-
band and defendant's neighbor. Defendant does not offer even a theory, however,
for how those witnesses may have supported his defense.

State v. Stokes
Here, defendant asserts that the delay was caused
by the state's incorrect assumption that defendant would
serve a life sentence in California and its resulting conclusion
that defendant did not pose a threat to public safety in
Oregon. When defendant was released from custody eight
years later, the state determined that defendant was a risk to
public safety and ought to be prosecuted. Defendant's state-
ment of the facts is undisputed, but his conclusion-that
those reasons for delay are sufficiently reckless to violate due
process in this case-does not follow.
This is not a case in which prosecutors ever inten-
tionally delayed defendant's indictment, and defendant con-
cedes that this is not a case of bad-faith delay. The state ini-
tially closed the case based on the good-faith belief that
defendant would serve a life sentence. A different prosecutor
made an independent decision eight years later to reopen the
case. While the case was open, the state was investigating
and 	moving the 	case 	forward; 	only one 	month 	passed
between defendant's release in California and defendant's
indictment in Oregon. That cannot be classified as investi-
gative delay, which, under Lovasco, never violates due proc-
ess. 431 US at 796. Neither, however, can the circumstances
be classified as negligence by the state.
Defendant urges that the prosecutorial decisions
here were reckless, because the state could have resubmitted
the charges to a grand jury in 1996, obtained an indictment,
and lodged a detainer against defendant while he was in cus-
tody in California. See ORS 135.775 (enactingtheAgreement
on Detainers). Instead, in defendant's view, the state chose to
close the case and then reopen it eight years later. The
"choice" that defendant perceives is one that arises only by
hindsight, however. When the state closed the case in 1996, it
did so without any expectation that it would proceed against
defendant in the future. Therefore, from the state's perspec-
tive at that time, obtaining a detainer against defendant
would have served no apparent purpose. In 2004, based on a
change in circumstances, the state chose to proceed. Charg-
ing decisions require "consideration of a wide range of factors
* * * in order to determine whether prosecution would be in
the public interest." Lovasco, 431 US at 794. Due process
does not prevent a prosecutor from making decisions based

Cite as
on good faith judgments simply because the predicates for
those decisions may change over time. See, e.g., People v.
Horning, 34 Cal 4th 871, 893, 102 P3d 228 (Cal 2004)
(describing 	as 	"practical" and 	"neutral" 	under 	a 	Sixth
Amendment speedy trial analysis a district attorney's initial
decision that "it was not worthwhile expending the necessary
resources to extradite" the defendant, who was sentenced to
life in prison in another state). 18
Contrary to 	defendant's 	assertions, 	under these
facts, the state was entitled to change its position regarding
the danger that defendant posed to public safety over the
course of eight years. The state did not close the case because
it saw defendant as nonthreatening; it closed the case based
on a conclusion that defendant's California sentence mini-
mized his threat and, in light of that, pursuing defendant's
prosecution in Oregon was not a good use of public resources.
When the state's initial calculation turned out to be incorrect,
the statute of limitations had not yet run. The sequence of
events was not ideal-evidence had been destroyed and,
eight years after the initial dismissal of the charges, the case
had not yet been resolved. But in terms of the reason for
those events, the state's actions do not demonstrate the gov-
ernment culpability and the degree of actual prejudice that
violate due process.
III. 	CONCLUSION
Under ORS 132.430(2), a trial court, in exercising
discretion to allow or deny resubmission of charges to a grand
jury, properly considers whether resubmission would be in the
interest of justice, which is an inquiry guided by factors such
as whether resubmission would be an abuse of the grand jury
18 See also, e.g., Graham v. Commonwealth, 319 SW3d 331, 341-42 (Ky 2010)
(no due process violation where state dismissed murder charges and closed case in
1981 and reindicted the defendant in 2007 based on newly available evidence) (cit-
ing Lovasco, 431 US at 795); Evans v. State, 808 So 2d 92 100-01(Fla2001)(no due
process violation where the defendant could not demonstrate actual prejudice by
state decision to close murder investigation in 1991 and reopen it in 1997); State u.
Potter, 68 Wash App 134, 137-41, 842 P2d 481 (1992) (no due process violation,
because defendant failed to show actual prejudice where state closed murder inves-
tigation based on coroner's report without knowledge of sheriff's investigation, and
reopened case over 12 years later based on defendant's confession).

64 	State v. Stokes
process or would serve the public interest in bringing a crimi-
nal to justice. Here, the facts set out in the prosecutor's affi-
davit in support of resubmission established that the state
had additional evidence against defendant that had not been
available when the first grand jury declined to indict defen-
dant. Given that showing, the trial court did not abuse its dis-
cretion in ordering resubmission of the two charges previ-
ously considered by the grand jury.
To demonstrate that preindictment delay violated
the federal Due Process Clause, a defendant must show that
the delay actually prejudiced the defendant and that the gov-
ernment culpably caused the delay. A court must weigh the
government's reason for the delay against the prejudice to
determine whether the delay violated our society's funda-
mental conceptions of justice, fair play, and decency. Defen-
dant in this case showed either no actual prejudice, or only
the slightest actual prejudice, which was insufficient to prove
a due process violation in light of the lack of government
culpability.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.