July 1999

Proving Pre-Trial Prejudice in a Criminal Case

by David Skeen

Criminal defense attorneys making pre-trial motions are often asked by the trial judge to explain how their client has been "prejudiced" by the actions of the state. While answering the judge’s question is often difficult, arguing legal prejudice is one of the most important pre-trial tasks of defense counsel. Even losing a properly researched and argued argument may mean relief on appeal or in another post-conviction proceeding. Conversely, an allegation of illegal state action without a showing of prejudice will likely result in an appellate court finding of harmless error.¹ 

What is "prejudice" as used in the legal context of a criminal case to define pre-trial rights and/or privileges, and why is it important to a defendant? Pre-trial legal prejudice may be defined as a detriment to a defendant’s ability to present an effective defense as the result of an error of law, or as a consequence of state action which deprives the defendant of a constitutional right to life, liberty or property.² 

While the Federal and Washington State Constitutions do not specifically mention the word prejudice in the context of defining a defendant’s rights, a significant number of the criminal rules of procedure do mention prejudice and have specific provisions which, in conjunction with constitutional standards, seek to protect the rights of the accused.³ Some of the more important constitutional provisions and court rules concerning prejudice involve the statute of limitations (Art. I, §§ 10 & 22, Washington State Constitution and the Sixth Amendment, United States Constitution); preaccusatorial delay (Due Process Clause of the Fifth and Fourteenth Amendments); pre-trial delay (Art. I, §§ 10 & 22, Washington State Constitution and the Sixth Amendment, United States Constitution); joinder and severance (CrR 4.3, 4.3A and 4.4); speedy trial rights (CrR 3.3); and governmental misconduct (CrR 8.3(b)). The interpretation of these provisions is really the meat of the legal prejudice issue.

Allegations of statutes of limitation violations involve Art. I, §§ 10 & 22, Washington State Constitution, and the Sixth Amendment, United States Constitution, and permit judicial inquiry into the reasonableness or the constitutionality of delays within the applicable charging period. Prosecutors beware: a judge will scrutinize why a charge was filed shortly before the statute of limitations expired.⁴ 

In State v. Chavez, the prosecution took the view that courts could not review charging decisions prior to the time the statute of limitations expired.⁵ In rejecting that argument, the court explained:

Statutes of limitations specify the limit beyond which there is an irrebuttable presumption that the defendant’s right to a fair trial is prejudiced. However, while statutes of limitations continue as the primary guaranty against bringing stale charges, they do not preclude courts from raising a rebuttable presumption of prejudice where as here there is a prearrest delay short of the period set by the statute of limitations. Nor do statutes of limitations automatically excuse unreasonable delay or failure to prosecute at an earlier time. Indeed, statutes of limitations do not preclude judicial inquiry into the reasonableness or constitutionality of delays within that period. This conclusion is supported by the court’s ability to review prearrest delays to determine whether a defendant’s due process rights have been violated.

The statute of limitations rule is directly related to the seldom-used concept of "preaccusatorial delay." As a general pro-position, preaccusatorial delay in bringing adult charges does not violate a defendant’s right to speedy trial, but may violate Fifth Amendment due-process guarantees and the Fourteenth Amendment. For adults, the bar is set even higher to excuse state actions with the introduction of the actual prejudice standard.

In State v. Gee, the court discussed the elements necessary to prove that a claim of preaccusatorial delay violates due process by explaining that a defendant must first show the delay caused prejudice.⁶ The court continued its analysis by observing "a mere allegation that witnesses are unavailable or the memories have dimmed is insufficient. The defendant must specifically demonstrate the delay caused actual prejudice to his defense."⁷ [emphasis added] What the court is saying is that if the state needs time to investigate, then so be it, even if the cost is the effectiveness of the defendant’s case.

It is important to remember the court’s caveat that "if the State is able to justify the delay, the court then must balance the State’s interest against the prejudice to the accused in determining whether due process violations have occurred."⁸ As the court in Gee noted, "ultimately, the test suggested by the United States Supreme Court is whether the action complained of…violates those fundamental conceptions of justice which lie at the base of our civil and political institutions."⁹ 

What are those "fundamental conceptions of justice which lie at the base of our civil and political institutions"? We all attempt to answer this question on a case-by-case basis, but any argument on prejudice must be more specific than general.

Consider the fate of a defendant who has made a preliminary showing of prejudice based on a delay in charging. Having met this difficult threshold, our courts have decided that once a defendant has established the "minimal prerequisite of prejudice, the court must also consider the state’s reasons for the delay in order to find a due process violation. The state must show that the delay was neither intentional or negligent."¹⁰ While placing some burden on the state, this rule may simply mean that the prosecutor informs the judge that law enforcement was or is "still investigating." For this reason, prosecutors rarely lose a motion to dismiss based on preaccusatorial delay, as there is considerable discretion in deciding when to charge.

In State v. Norby, 122 Wn.2d 258, 858 P.2d 210 (1993), the Washington Supreme Court stated that "a preaccusatorial delay may violate a defendant’s right to due process under the United States Constitution, citing United States v. Lovasco, supra. Id. at 262.

The Norby court explained how its three-part test adopted from Lovasco may be used by the defendant for determining when a preaccusatorial delay violates an individual’s right to due process:

(1) The defendant must show he [or she] was prejudiced by the delay; (2) the court must consider the reasons for the delay; and (3) if the State is able to justify the delay, the court must undertake a further balancing of the State’s interest and the prejudice to the accused. Lidge, 111 Wn.2d at 848, 765 P.2d 1292 (quoting State v. Alvin, 109 Wn.2d 602, 604, 746 P.2d 807 (1987)). Id.

The Norby court concluded by commenting that "the 3-part test clearly indicates a defendant cannot prevail on a claim of preaccusatorial delay unless he or she demonstrates actual prejudice resulting from this delay. If a defendant demonstrates this actual prejudice, the court will then consider the State’s reason for the delay and balance the State’s interests against this prejudice."¹¹ Id. [emphasis added]

What is "actual prejudice" as mentioned by the Norby court? In Norby, the defendants asserted that even if they met an initial burden of showing actual prejudice, the court could still infer prejudice from the pre-filing delay alone. The court disagreed, declaring:

[T]he mere possibility of prejudice is not sufficient to meet the burden of showing actual prejudice. State v. Ansell, 36 Wn.App. 492, 498-99, 675 P.2d 614, review denied, 101 Wn.2d 1006 (1984). A mere allegation that witnesses are unavailable or that memories have dimmed is insufficient; the defendant ‘must specifically demonstrate the delay caused actual prejudice to his defense.’ State v. Gee, 52 Wn.App. 357, 367, 760 P.2d 361 (1988) (quoting State v. Bernson, 40 Wn.App. 729, 729, 734, 700 P.2d 758, review denied, 104 Wn.2d 1016 (1985)), review denied, 111 Wn.2d 1031 (1989). 122 Wn.2d 265.

Norby all but concludes that a defendant will rarely be able to show "actual prejudice," but defense counsel should still argue the three-part test from Lovasco and specifically cite those facts which constitute prejudice within the context of their particular case. Standing before the judge and merely stating "my client has been prejudiced by the actions of the state" is not sufficient.

The area of pre-trial delay is a separate and distinct concept from preaccusatorial delay, or statutes of limitation, and involves a potential violation of a defendant’s Sixth Amendment rights, Art. I, §10 & 22 of the Washington State Constitution and CrR 3.3. The fundamental rule in deciding whether a defendant’s Sixth Amendment right to a speedy trial has been violated was stated over 25 years ago in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The United States Supreme Court held in that case "[A] balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we can identify four such factors: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant." 92 S.Ct. at 2192. [emphasis added]

This state, in State v. Wernick,¹² adopted the Barker rule. In applying the rule to actual case facts, the court identified specific forms of prejudice, which may occur from pre-trial delay:

The Barker opinion also delineated three forms of prejudice to the defendant: (1) oppressive pretrial incarceration, (2) anxiety and concern of the accused, and (3) the possible impairment of the defense. This last form of prejudice is the most serious, ‘because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’ Barker, 407 U.S. at 532, 92 S.Ct. at 2193.

These three specific forms of prejudice form the basis of a claim under the Sixth Amendment and Art. I, §§ 10 & 22 of the Washington State Constitution, alleging pre-trial delay. Defense counsel should, however, view these three factors as non-exclusive and also seek to utilize the more generalized three-part test in Barker to articulate additional, specific forms of prejudice applicable to their client’s case.

What is interesting about the speedy trial rules is the shifting burden of proof. A defendant alleges he/she has been prejudiced by the delay in trial. The court then requires the defendant, not the state who has violated the rule, to offer evidence of how the state’s errors violate his/her rights. If the defendant cannot prove "actual prejudice," then the error is deemed harmless.

In a decision which restores hope to the hopeless, an interesting subplot to the normal rules regarding pretrial prejudice has emerged. In State v. Michielli, 132 Wn.2d 229, 244, 937 P.2d 587 (1997), the court held that, while a late amendment of charges by the state may not result in a violation of the defendant’s rights, it may constitute the separate violation of "governmental mismanagement" which warrants dismissal of prosecution in the interests of justice pursuant to CrR 8.3(b), citing State v. Blackwell, 120 Wn.2d 822, 831, 845 P.2d 1017 (1993).

While governmental mismanagement may not be a novel concept, what is unique about this rule is that the prosecution has the initial burden of explaining why it delayed action in a case. But remember that "CrR 8.3(b) is designed to protect against arbitrary action or governmental misconduct and not to grant courts the authority to substitute their judgment for that of the prosecutor." See State v. Starrish, 86 Wn.2d 200, 544 P.2d 1 (1975). The rule requires a showing of "governmental misconduct or arbitrary action" which materially infringes on the defendant’s right to a fair trial."¹³ So in reality, the bar is so high that only the truly inefficient prosecutor will suffer an adverse ruling of the court, and then only if the complained-of action materially infringes on the defendant’s right to a fair trial.

There have been numerous governmental mismanagement cases decided in Washington state and it is not difficult to ascertain the parameters of this rule. Defense counsel need to be more conscious of all situations where governmental mismanagement may result in prejudice to the pre-trial rights of a defendant, as this is one area which just might provide a defendant with some relief.

In construing the provisions of CrR 4.3(a) on joinder of offenses, the Washington Supreme Court in State v. Robin-son, characterized this as a "liberal joinder rule, vesting the trial court with ‘considerable discretion in matters such as joinder of offenses.’"¹⁴ 

The Robinson court also commented that "[a]lthough joinder should not be used to prejudice one charged with a crime, or deny him a substantial right, State v. Smith, 74 Wn.2d 744, 754-55, 446 P.2d 571 (1968), the defendant bears the heavy burden of demonstrating that the trial court’s denial of severance was an abuse of discretion."¹⁵ [emphasis added]

Most importantly, the Robinson Court described how a defendant may be prejudiced by joinder, declaring that:

(1) he may become embarrassed or confounded in presenting separate defenses; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find. A less tangible, but perhaps equally persuasive, element of prejudice may reside in a latent feeling of hostility engendered by the charging of several crimes as distinct from only one. Thus, in any given case the court must weigh prejudice to the defendant caused by the joinder against the obviously important considerations of economy and expedition in judicial administration. (citations omitted) Id. at 882.

Also of considerable interest was the Court’s explanation of the reasons that could mitigate prejudice to a defendant:

(1) the strength of the state’s evidence on each count, (2) the clarity of defenses to each count, (3) the court properly instructed the jury to consider the evidence of each crime, and (4) the admissibility of the evidence of the other crimes even if they had been tried separately or never charged or joined.¹⁶ 

The rules governing joinder and severance of defendants are similar to the rules involving counts, but are governed by CrR 4.3(b) and 4.4(c) and were adopted for different reasons. For instance, CrR 4.4(c) was adopted to avoid the constitutional problem in Bruton v. United States,¹⁷ of a defendant who was deprived of his confrontation rights under the Sixth Amendment when he was incriminated by a pre-trial statement of a co-defendant who did not take the stand at trial.

In applying this principle, the Washington Supreme Court explained in State v. Bythrow:¹⁸ 

In order to support a finding that the trial court abused its discretion in denying severance, the defendant must be able to point to specific prejudice. State v. Grisby, 97 Wn.2d 493, 507, 647 P.2d 6 (1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983). In Grisby, we rejected defendants’ argument that when mutually antagonistic defenses are offered, severance must be granted as a matter of law. While we recognized that mutually antagonistic defenses may on occasion be sufficient to support a motion for severance, the burden is upon the defendant to demonstrate undue prejudice resulting from a joint trial.

In State v. Canedo-Astorga, the court held, in a case involving one defendant appearing pro se and the other defendant appearing with counsel, that "the defendant has the burden of demonstrating that a joint trial was so manifestly prejudicial as to outweigh the concern for judicial economy. To meet this burden, the defendant must point to specific prejudice."¹⁹ The court described the potential difficulties in such a circumstance by noting:

Although Washington has no cases analyzing the effect of one defendant’s self-representation on another defendant’s right to severance, a number of federal cases hold that a trial involving a pro se defendant and a represented co-defendant is not prejudicial per se and thus does not generate automatic severance. Generally, these cases hold that severance is required only when the moving co-defendant shows that a joint trial will cause specific prejudice.²⁰ 

The court went on to explain that a defendant demonstrates specific prejudice by showing:

(1) antagonistic defenses conflicting to the point of being irreconcilable and mutually exclusive; (2) a massive and complex quantity of evidence making it almost impossible for the jury to separate evidence as it related to each defendant when determining each defendant’s innocence or guilt; (3) a co-defendant’s statement inculpating the moving defendant; or (4) gross disparity in the weight of the evidence against the defendants.²¹ 

All of the non-exclusive factors listed provide guidance, but each case must be reviewed on its own merits. So-called Bruton issues may provide a source of relief for defendants, but the courts will be balancing the cost of duplicate trials against any alleged prejudice to a defendant.

In conclusion, "prejudice" is often a concept that defense attorneys and their clients feel strongly about but have trouble articulating and even more trouble proving. Even those who are neutral about the competing interests of the prosecution and defense will acknowledge that prejudice rules sometimes protect the state when they commit errors. In effect, the state con-cedes it made an error, but argues that the weight of the evidence is overwhelming and that the defendant is guilty, and therefore the case should not be dismissed.

The only recourse for defense counsel is knowing what prejudice is in a given factual situation, which requires hard work to find facts in support of the argument to dismiss. Mere rhetoric that a defendant has been prejudiced will never suffice. 

David Skeen practices law in Port Townsend and was the 1988-99 Chair of the WSBA Criminal Law Section.