 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

          Syllabus

  DOGGETT v. UNITED STATES
certiorari to the united states court of appeals for
         the eleventh circuit
No. 90-857.   Argued October 9, 1991"Reargued February 24,
 1992"Decided June 24, 1992

In February 1980, petitioner Doggett was indicted on federal drug
charges, but he left the country before the Drug Enforcement Agency
could secure his arrest.  The DEA knew that he was later imprisoned
in Panama, but after requesting that he be expelled back to the
United States, never followed up on his status.  Once the DEA
discovered that he had left Panama for Colombia, it made no further
attempt to locate him.  Thus, it was unaware that he reentered this
country in 1982 and subsequently married, earned a college degree,
found steady employment, lived openly under his own name, and
stayed within the law.  The Marshal's Service eventually located him
during a simple credit check on individuals with outstanding war-
rants.  He was arrested in September 1988, 8 1/2 years after his
indictment.  He moved to dismiss the indictment on the ground that
the Government's failure to prosecute him earlier violated his Sixth
Amendment right to a speedy trial, but the District Court denied the
motion, and he entered a conditional guilty plea.  The Court of
Appeals affirmed.
Held:The delay between Doggett's indictment and arrest violated his
right to a speedy trial.  His claim meets the Barker v. Wingo,
407 U.S. 514, 530, criteria for evaluating speedy trial claims.  First,
the extraordinary 8 1/2 year lag between his indictment and arrest
clearly suffices to trigger the speedy trial enquiry.  Second, the
Government was to blame for the delay.  The District Court's finding
that the Government was negligent in pursuing Doggett should be
viewed with considerable deference, and neither the Government nor
the record provides any reason to reject that finding.  Third, Doggett
asserted in due course his right to a speedy trial.  The courts below
found that he did not know of his indictment before his arrest, and,
in the factual basis supporting his guilty plea, the Government
essentially conceded this point.  Finally, the negligent delay between
Doggett's indictment and arrest presumptively prejudiced his ability
to prepare an adequate defense.  The Government errs in arguing
that the Speedy Trial Clause does not significantly protect a defend-
ant's interest in fair adjudication.  United States v. Marion, 404 U.S.
307, 320-323; United States v. MacDonald, 456 U.S. 1, 8; United
States v. Loud Hawk, 474 U.S. 302, 312, distinguished.  Nor does
Doggett's failure to cite any specifically demonstrable prejudice doom
his claim, since excessive delay can compromise a trial's reliability in
unidentifiable ways.  Presumptive prejudice is part of the mix of
relevant Barker factors and increases in importance with the length
of the delay.  Here, the Government's egregious persistence in failing
to prosecute Doggett is sufficient to warrant granting relief.  The
negligence caused delay six times as long as that generally deemed
sufficient to trigger judicial review, and the presumption of prejudice
is neither extenuated, as by Doggett's acquiescence, nor persuasively
rebutted.  Pp. 4-11.
906 F.2d 573, reversed and remanded.

Souter, J., delivered the opinion of the Court, in which White,
Blackmun, Stevens, and Kennedy, JJ., joined.  O'Connor, J., filed a
dissenting opinion.  Thomas, J., filed a dissenting opinion, in which
Rehnquist, C. J., and Scalia, J., joined.



NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
         SUPREME COURT OF THE UNITED STATES--------
                       No. 90-857
                        --------
       MARC GILBERT DOGGETT, PETITIONER v. UNITED
                              STATES
        on writ of certiorari to the united states court of
                 appeals for the eleventh circuit
                          [June 24, 1992]

       Justice Souter delivered the opinion of the Court.
       In this case we consider whether the delay of 8 1/2 years
between petitioner's indictment and arrest violated his
Sixth Amendment right to a speedy trial.  We hold that it
did.
                                 I
       On February 22, 1980, petitioner Marc Doggett was
indicted for conspiring with several others to import and
distribute cocaine.  See 84 Stat. 1265, 1291, as amended, 21
U. S. C. 846, 963.  Douglas Driver, the Drug Enforcement
Administration's principal agent investigating the conspir-
acy, told the United States Marshal's Service that the DEA
would oversee the apprehension of Doggett and his confed-
erates.  On March 18, 1980, two police officers set out under
Driver's orders to arrest Doggett at his parents' house in
Raleigh, North Carolina, only to find that he was not there.
His mother told the officers that he had left for Colombia
four days earlier.
       To catch Doggett on his return to the United States,
Driver sent word of his outstanding arrest warrant to all
United States Customs stations and to a number of law
enforcement organizations.  He also placed Doggett's name
in the Treasury Enforcement Communication System
(TECS), a computer network that helps Customs agents
screen people entering the country, and in the National
Crime Information Center computer system, which serves
similar ends.  The TECS entry expired that September,
however, and Doggett's name vanished from the system.
       In September 1981, Driver found out that Doggett was
under arrest on drug charges in Panama and, thinking that
a formal extradition request would be futile, simply asked
Panama to  expel Doggett to the United States.  Although
the Panamanian authorities promised to comply when their
own proceedings had run their course, they freed Doggett
the following July and let him go to Colombia, where he
stayed with an aunt for several months.  On September 25,
1982, he passed unhindered through Customs in New York
City and settled down in Virginia.  Since his return to the
United States, he has married, earned a college degree,
found a steady job as a computer operations manager, lived
openly under his own name, and stayed within the law.
       Doggett's travels abroad had not wholly escaped the
Government's notice, however.  In 1982, the American
Embassy in Panama told the State Department of his
departure to Colombia, but that information, for whatever
reason, eluded the DEA, and Agent Driver assumed for
several years that his quarry was still serving time in a
Panamanian prison.  Driver never asked DEA officials in
Panama to check into Doggett's status, and only after his
own fortuitous assignment to that country in 1985 did he
discover Doggett's departure for Colombia.  Driver then
simply assumed Doggett had settled there, and he made no
effort to find out for sure or to track Doggett down, either
abroad or in the United States.  Thus Doggett remained lost
to the American criminal justice system until September
1988, when the Marshal's Service ran a simple credit check
on several thousand people subject to outstanding arrest
warrants and, within minutes, found out where Doggett
lived and worked.  On September 5, 1988, nearly 6 years
after his return to the United States and 8 1/2 years after his
indictment, Doggett was arrested.
        He naturally moved to dismiss the indictment, arguing
that the Government's failure to prosecute him earlier
violated his Sixth Amendment right to a speedy trial.  The
Federal Magistrate hearing his motion applied the criteria
for assessing speedy trial claims set out in Barker v. Wingo,
407 U. S. 514 (1972):   [l]ength of delay, the reason for the
delay, the defendant's assertion of his right, and prejudice
to the defendant.  Id., at 530 (footnote omitted).  The
Magistrate found that the delay between Doggett's indict-
ment and arrest was long enough to be  presumptively
prejudicial, Magistrate's Report, reprinted at App. to Pet.
for Cert. 27-28, that the delay  clearly [was] attributable to
the negligence of the government, id., at 39, and that
Doggett could not be faulted for any delay in asserting his
right to a speedy trial, there being no evidence that he had
known of the charges against him until his arrest, id., at
42-44.  The Magistrate also found, however, that Doggett
had made no affirmative showing that the delay had
impaired his ability to mount a successful defense or had
otherwise prejudiced him.  In his recommendation to the
District Court, the Magistrate contended that this failure to
demonstrate particular prejudice sufficed to defeat Doggett's
speedy trial claim.
       The District Court took the recommendation and denied
Doggett's motion.  Doggett then entered a conditional guilty
plea under Federal Rule of Criminal Procedure 11(a)(2),
expressly reserving the right to appeal his ensuing convic-
tion on the speedy trial claim.
       A split panel of the Court of Appeals affirmed.  906 F. 2d
573 (CA11 1990).  Following Circuit precedent, see Ring-
staff v. Howard, 885 F. 2d 1542 (CA11 1989) (en banc), the
court ruled that Doggett could prevail only by proving
 actual prejudice or by establishing that  the first three
Barker factors weigh[ed] heavily in his favor.  906 F. 2d, at
582.  The majority agreed with the Magistrate that Doggett
had not shown actual prejudice, and, attributing the
Government's delay to  negligence rather than  bad faith,
id., at 578-579, it concluded that Barker's first three factors
did not weigh so heavily against the Government as to
make proof of specific prejudice unnecessary.  Judge Clark
dissented, arguing, among other things, that the majority
had placed undue emphasis on Doggett's inability to prove
actual prejudice.
       We granted Doggett's petition for certiorari, 498 U. S. ---
(1991), and now reverse.
                                II
       The Sixth Amendment guarantees that,  [i]n all criminal
prosecutions, the accused shall enjoy the right to a
speedy . . . trial . . . .  On its face, the Speedy Trial Clause
is written with such breadth that, taken literally, it would
forbid the government to delay the trial of an  accused for
any reason at all.  Our cases, however, have qualified the
literal sweep of the provision by specifically recognizing the
relevance of four separate enquiries: whether delay before
trial was uncommonly long, whether the government or the
criminal defendant is more to blame for that delay, wheth-
er, in due course, the defendant asserted his right to a
speedy trial, and whether he suffered prejudice as the
delay's result.  See Barker, supra, at 530.
       The first of these is actually a double enquiry.  Simply to
trigger a speedy trial analysis, an accused must allege that
the interval between accusation and trial has crossed the
threshold dividing ordinary from  presumptively prejudi-
cial delay, 470 U. S., at 530-531, since, by definition, he
cannot complain that the government has denied him a
 speedy trial if it has, in fact, prosecuted his case with
customary promptness.  If the accused makes this showing,
the court must then consider, as one factor among several,
the extent to which the delay stretches beyond the bare
minimum needed to trigger judicial examination of the
claim.  See id., at 533-534.  This latter enquiry is signifi-
cant to the speedy trial analysis because, as we discuss
below, the presumption that pretrial delay has prejudiced
the accused intensifies over time.  In this case, the extraor-
dinary 8 1/2 year lag between Doggett's indictment and
arrest clearly suffices to trigger the speedy trial enquiry;
its further significance within that enquiry will be dealt
with later.
       As for Barker's second criterion, the Government claims
to have sought Doggett with diligence.  The findings of the
courts below are to the contrary, however, and we review
trial court determinations of negligence with considerable
deference.  See Cooter & Gell v. Hartmarx Corp., 496 U. S.
384, 402 (1990); McAllister v. United States, 348 U. S. 19,
20-22 (1954); 9 C. Wright & A. Miller, Federal Practice and
Procedure  2590 (1971).  The Government gives us nothing
to gainsay the findings that have come up to us, and we see
nothing fatal to them in the record.  For six years, the
Government's investigators made no serious effort to test
their progressively more questionable assumption that
Doggett was living abroad, and, had they done so, they
could have found him within minutes.  While the Govern-
ment's lethargy may have reflected no more than Doggett's
relative unimportance in the world of drug trafficking, it
was still findable negligence, and the finding stands.
       The Government goes against the record again in
suggesting that Doggett knew of his indictment years before
he was arrested.  Were this true, Barker's third factor, con-
cerning invocation of the right to a speedy trial, would be
weighed heavily against him.  But here again, the Govern-
ment is trying to revisit the facts.  At the hearing on
Doggett's speedy trial motion, it introduced no evidence
challenging the testimony of Doggett's wife, who said that
she did not know of the charges until his arrest, and of his
mother, who claimed not to have told him or anyone else
that the police had come looking for him.  From this the
Magistrate implicitly concluded, Magistrate's Report, re-
printed at App. to Pet. for Cert. 42-44, and the Court of
Appeals expressly reaffirmed, 906 F. 2d, at 579-580, that
Doggett had won the evidentiary battle on this point.  Not
only that, but in the factual basis supporting Doggett's
guilty plea, the Government explicitly conceded that it had
 no information that Doggett was aware of the indict-
ment before he left the United States in March 1980, or
prior to his arrest.  His mother testified at the suppres-
sion hearing that she never told him, and Barnes and
Riddle [Doggett's confederates] state they did not have
contact with him after their arrest [in 1980].  2
Record, Exh. 63, p. 2.
While one of the Government's lawyers later expressed
amazement that  that particular stipulation is in the
factual basis, Tr. 13 (March 31, 1989), he could not make
it go away, and the trial and appellate courts were entitled
to accept the defense's unrebutted and largely substantiated
claim of Doggett's ignorance.  Thus, Doggett is not to be
taxed for invoking his speedy trial right only after his
arrest.
                                III
       The Government is left, then, with its principal conten-
tion: that Doggett fails to make out a successful speedy trial
claim because he has not shown precisely how he was
prejudiced by the delay between his indictment and trial.A
       We have observed in prior cases that unreasonable delay
between formal accusation and trial threatens to produce
more than one sort of harm, including  oppressive pretrial
incarceration,  anxiety and concern of the accused, and
 the possibility that the [accused's] defense will be im-
paired by dimming memories and loss of exculpatory
evidence.  Barker, 407 U. S., at 532; see also Smith v.
Hooey, 393 U. S. 374, 377-379 (1969); United States v.
Ewell, 383 U. S. 116, 120 (1966).  Of these forms of preju-
dice,  the most serious is the last, because the inability of
a defendant adequately to prepare his case skews the
fairness of the entire system.  407 U. S., at 532.  Doggett
claims this kind of prejudice, and there is probably no other
kind that he can claim, since he was subjected neither to
pretrial detention nor, he has successfully contended, to
awareness of unresolved charges against him.
       The Government answers Doggett's claim by citing
language in three cases, United States v. Marion, 404 U. S.
307, 320-323 (1971), United States v. MacDonald, 456 U. S.
1, 8 (1982), and United States v. Loud Hawk, 474 U. S. 302,
312 (1986), for the proposition that the Speedy Trial Clause
does not significantly protect a criminal defendant's interest
in fair adjudication.  In so arguing, the Government asks
us, in effect, to read part of Barker right out of the law, and
that we will not do.  In context, the cited passages support
nothing beyond the principle, which we have independently
based on textual and historical grounds, see Marion, supra,
at 313-320, that the Sixth Amendment right of the accused
to a speedy trial has no application beyond the confines of
a formal criminal prosecution.  Once triggered by arrest,
indictment, or other official accusation, however, the speedy
trial enquiry must weigh the effect of delay on the accused's
defense just as it has to weigh any other form of prejudice
that Barker recognized.  See Moore v. Arizona, 414 U. S.
25, 26-27, and n. 2 (1973); Barker, supra, at 532; Smith,
supra, at 377-79; Ewell, supra, at 120.
       As an alternative to limiting Barker, the Government
claims Doggett has failed to make any affirmative showing
that the delay weakened his ability to raise specific defens-
es, elicit specific testimony, or produce specific items of
evidence.  Though Doggett did indeed come up short in this
respect, the Government's argument takes it only so far:
consideration of prejudice is not limited to the specifically
demonstrable, and, as it concedes, Brief for United States
28, n. 21; Tr. of Oral Arg. 28-34 (Feb. 24, 1992), affirmative
proof of particularized prejudice is not essential to every
speedy trial claim.  See Moore, supra, at 26; Barker, supra,
at 533.  Barker explicitly recognized that impairment of
one's defense is the most difficult form of speedy trial
prejudice to prove because time's erosion of exculpatory
evidence and testimony  can rarely be shown.  407 U. S.,
at 532.  And though time can tilt the case against either
side, see id., at 521; Loud Hawk, supra, at 315, one cannot
generally be sure which of them it has prejudiced more
severely.  Thus, we generally have to recognize that
excessive delay presumptively compromises the reliability
of a trial in ways that neither party can prove or, for that
matter, identify.  While such presumptive prejudice cannot
alone carry a Sixth Amendment claim without regard to the
other Barker criteria, see Loud Hawk, supra, at 315, it is
part of the mix of relevant facts, and its importance
increases with the length of delay.

                                 B
       This brings us to an enquiry into the role that presump-
tive prejudice should play in the disposition of Doggett's
speedy trial claim.  We begin with hypothetical and some-
what easier cases and work our way to this one.
       Our speedy trial standards recognize that pretrial delay
is often both inevitable and wholly justifiable.  The govern-
ment may need time to collect witnesses against the
accused, oppose his pretrial motions, or, if he goes into
hiding, track him down.  We attach great weight to such
considerations when balancing them against the costs of
going forward with a trial whose probative accuracy the
passage of time has begun by degrees to throw into ques-
tion.  See Loud Hawk, supra, at 315-317.  Thus, in this
case, if the Government had pursued Doggett with reason-
able diligence from his indictment to his arrest, his speedy
trial claim would fail.  Indeed, that conclusion would
generally follow as a matter of course however great the
delay, so long as Doggett could not show specific prejudice
to his defense.
       The Government concedes, on the other hand, that
Doggett would prevail if he could show that the Govern-
ment had intentionally held back in its prosecution of him
to gain some impermissible advantage at trial.  See Brief
for United States, 28 n. 21; Tr. of Oral Arg. 28-34 (Feb. 24,
1992).  That we cannot doubt.  Barker stressed that official
bad faith in causing delay will be weighed heavily against
the government, 407 U. S., at 531, and a bad-faith delay the
length of this negligent one would present an overwhelming
case for dismissal.
       Between diligent prosecution and bad-faith delay, official
negligence in bringing an accused to trial occupies the
middle ground.  While not compelling relief in every case
where bad-faith delay would make relief virtually automat-
ic, neither is negligence automatically tolerable simply
because the accused cannot demonstrate exactly how it has
prejudiced him.  It was on this point that the Court of
Appeals erred, and on the facts before us, it was reversible
error.
    Barker made it clear that  different weights [are to be]
assigned to different reasons for delay.  Ibid.  Although
negligence is obviously to be weighed more lightly than a
deliberate intent to harm the accused's defense, it still falls
on the wrong side of the divide between acceptable and
unacceptable reasons for delaying a criminal prosecution
once it has begun.  And such is the nature of the prejudice
presumed that the weight we assign to official negligence
compounds over time as the presumption of evidentiary
prejudice grows.  Thus, our toleration of such negligence
varies inversely with its protractedness, cf. Arizona v.
Youngblood, 488 U. S. 51 (1988), and its consequent threat
to the fairness of the accused's trial.  Condoning prolonged
and unjustifiable delays in prosecution would both penalize
many defendants for the state's fault and simply encourage
the government to gamble with the interests of criminal
suspects assigned a low prosecutorial priority.  The Govern-
ment, indeed, can hardly complain too loudly, for persistent
neglect in concluding a criminal prosecution indicates an
uncommonly feeble interest in bringing an accused to
justice; the more weight the Government attaches to
securing a conviction, the harder it will try to get it.
       To be sure, to warrant granting relief, negligence unac-
companied by particularized trial prejudice must have
lasted longer than negligence demonstrably causing such
prejudice.  But even so, the Government's egregious persis-
tence in failing to prosecute Doggett is clearly sufficient.
The lag between Doggett's indictment and arrest was 8 1/2
years, and he would have faced trial 6 years earlier than he
did but for the Government's inexcusable oversights.  The
portion of the delay attributable to the Government's
negligence far exceeds the threshold needed to state a
speedy trial claim; indeed, we have called shorter delays
 extraordinary.  See Barker, supra, at 533.  When the
Government's negligence thus causes delay six times as
long as that generally sufficient to trigger judicial review,
see n. 1, supra, and when the presumption of prejudice,
albeit unspecified, is neither extenuated, as by the defend-
ant's acquiescence, e.g., id., at 534-536, nor persuasively
rebutted, the defendant is entitled to relief.

                                IV
       We reverse the judgment of the Court of Appeals and
remand the case for proceedings consistent with this
opinion.
       So ordered.



           SUPREME COURT OF THE UNITED STATES--------
                       No. 90-857
                        --------
       MARC GILBERT DOGGETT, PETITIONER v. UNITED
                              STATES
        on writ of certiorari to the united states court of
                 appeals for the eleventh circuit
                          [June 24, 1992]

       Justice O'Connor, dissenting.
       I believe the Court of Appeals properly balanced the
considerations set forth in Barker v. Wingo, 407 U. S. 514
(1972).  Although the delay between indictment and trial
was lengthy, petitioner did not suffer any anxiety or
restriction on his liberty.  The only harm to petitioner from
the lapse of time was potential prejudice to his ability to
defend his case.  We have not allowed such speculative
harm to tip the scales.  Instead, we have required a
showing of actual prejudice to the defense before weighing
it in the balance.  As we stated in United States v.
Loudhawk, 474 U. S. 302, 315 (1986), the  possibility of
prejudice is not sufficient to support respondents' position
that their speedy trial rights were violated.  In this case,
moreover, delay is a two-edged sword.  It is the Government
that bears the burden of proving its case beyond a reason-
able doubt.  The passage of time may make it difficult or
impossible for the Government to carry this burden.  The
Court of Appeals followed this holding, and I believe we
should as well.  For this reason, I respectfully dissent.



           SUPREME COURT OF THE UNITED STATES--------
                       No. 90-857
                        --------
       MARC GILBERT DOGGETT, PETITIONER v. UNITED
                              STATES
        on writ of certiorari to the united states court of
                 appeals for the eleventh circuit
                          [June 24, 1992]

       Justice Thomas, with whom The Chief Justice and
Justice Scalia join, dissenting.
       Just as ``bad facts make bad law,'' so too odd facts make
odd law.  Doggett's 8 1/2-year odyssey from youthful drug
dealing in the tobacco country of North Carolina, through
stints in a Panamanian jail and in Colombia, to life as a
computer operations manager, homeowner, and registered
voter in suburban Virginia, is extraordinary.  But even
more extraordinary is the Court's conclusion that the
Government denied Doggett his Sixth Amendment right to
a speedy trial despite the fact that he has suffered none of
the harms that the right was designed to prevent.  I
respectfully dissent.
                                 I
       We have long identified the ``major evils'' against which
the Speedy Trial Clause is directed as ``undue and oppres-
sive incarceration'' and the ``anxiety and concern accompa-
nying public accusation.''  United States v. Marion, 404
U. S. 307, 320 (1971).  The Court does not, and cannot,
seriously dispute that those two concerns lie at the heart of
the Clause, and that neither concern is implicated here.
Doggett was neither in United States custody nor subject to
bail during the entire 8 1/2-year period at issue.  Indeed, as
this case comes to us, we must assume that he was bliss-
fully unaware of his indictment all the while, and thus was
not subject to the anxiety or humiliation that typically
accompany a known criminal charge.
       Thus, this unusual case presents the question whether,
independent of these core concerns, the Speedy Trial Clause
protects an accused from two additional harms: (1) preju-
dice to his ability to defend himself caused by the passage
of time; and (2) disruption of his life years after the alleged
commission of his crime.  The Court today proclaims that
the first of these additional harms is indeed an independent
concern of the Clause, and on that basis compels reversal of
Doggett's conviction and outright dismissal of the indict-
ment against him.  As to the second of these harms, the
Court remains mum"despite the fact that we requested
supplemental briefing on this very point.
       I disagree with the Court's analysis.  In my view, the
Sixth Amendment's speedy trial guarantee does not provide
independent protection against either prejudice to an
accused's defense or the disruption of his life.  I shall
consider each in turn.
                                 A
       As we have explained, ``the Speedy Trial Clause's core
concern is impairment of liberty.''  United States v. Loud
Hawk, 474 U. S. 302, 312 (1986) (emphasis added).
Whenever a criminal trial takes place long after the events
at issue, the defendant may be prejudiced in any number of
ways.  But ``[t]he Speedy Trial Clause does not purport to
protect a defendant from all effects flowing from a delay
before trial.''  Id., at 311.  The Clause is directed not
generally against delay-related prejudice, but against delay-
related prejudice to a defendant's liberty.  ``The speedy trial
guarantee is designed to minimize the possibility of lengthy
incarceration prior to trial, to reduce the lesser, but
nevertheless substantial, impairment of liberty imposed on
an accused while released on bail, and to shorten the
disruption of life caused by arrest and the presence of
unresolved criminal charges.''  United States v. MacDonald,
456 U. S. 1, 8 (1982).  Thus, ``when defendants are not
incarcerated or subjected to other substantial restrictions on
their liberty, a court should not weigh that time towards a
claim under the Speedy Trial Clause.''  Loud Hawk, supra,
at 312.
       A lengthy pretrial delay, of course, may prejudice an
accused's ability to defend himself.  But, we have explained,
prejudice to the defense is not the sort of impairment of
liberty against which the Clause is directed.  ``Passage of
time, whether before or after arrest, may impair memories,
cause evidence to be lost, deprive the defendant of wit-
nesses, and otherwise interfere with his ability to defend
himself.  But this possibility of prejudice at trial is not itself
sufficient reason to wrench the Sixth Amendment from its
proper context.''  Marion, supra, at 321-322 (footnote
omitted; emphasis added).  Even though a defendant may
be prejudiced by a pretrial delay, and even though the
government may be unable to provide a valid justification
for that delay, the Clause does not come into play unless
the delay impairs the defendant's liberty.  ``Inordinate delay
. . . may impair a defendant's ability to present an effective
defense.  But the major evils protected against by the
speedy trial guarantee exist quite apart from actual or
possible prejudice to an accused's defense.''  404 U. S., at
320 (emphasis added).
       These explanations notwithstanding, we have on occasion
identified the prevention of prejudice to the defense as an
independent and fundamental objective of the Speedy Trial
Clause.  In particular, in Barker v. Wingo, 407 U. S. 514,
532 (1972), we asserted that the Clause was ``designed to
protect'' three basic interests: ``(i) to prevent oppressive
pretrial incarceration; (ii) to minimize anxiety and concern
of the accused; and (iii) to limit the possibility that the
defense will be impaired.''  See also Smith v. Hooey, 393
U. S. 374, 377-378 (1969); United States v. Ewell, 383 U. S.
116, 120 (1966).  Indeed, the Barker Court went so far as to
declare that of these three interests, ``the most serious is
the last, because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system.''
407 U. S., at 532.
       We are thus confronted with two conflicting lines of
authority, the one declaring that ``limit[ing] the possibility
that the defense will be impaired'' is an independent and
fundamental objective of the Speedy Trial Clause, e.g.,
Barker, supra, at 532, and the other declaring that it is not,
e.g., Marion, supra; MacDonald, supra; Loud Hawk, supra.
The Court refuses to acknowledge this conflict.  Instead, it
simply reiterates the relevant language from Barker and
asserts that Marion, MacDonald, and Loud Hawk ``support
nothing beyond the principle . . . that the Sixth Amend-
ment right of the accused to a speedy trial has no applica-
tion beyond the confines of a formal criminal prosecution.''
Ante, at 7.  That attempt at reconciliation is eminently
unpersuasive.
       It is true, of course, that the Speedy Trial Clause by its
terms applies only to an ``accused''; the right does not attach
before indictment or arrest.  See Marion, supra, at 313-315,
320-322; Dillingham v. United States, 423 U. S. 64, 64-65
(1975) (per curiam).  But that limitation on the Clause's
protection only confirms that preventing prejudice to the
defense is not one of its independent and fundamental
objectives.  For prejudice to the defense stems from the
interval between crime and trial, which is quite distinct
from the interval between accusation and trial.  If the
Clause were indeed aimed at safeguarding against prejudice
to the defense, then it would presumably limit all prosecu-
tions that occur long after the criminal events at issue.  A
defendant prosecuted 10 years after a crime is just as
hampered in his ability to defend himself whether he was
indicted the week after the crime or the week before the
trial"but no one would suggest that the Clause protects
him in the latter situation, where the delay did not sub-
stantially impair his liberty, either through oppressive
incarceration or the anxiety of known criminal charges.
Thus, while the Court is correct to observe that the defen-
dants in Marion, MacDonald, and Loud Hawk were not
subject to formal criminal prosecution during the lengthy
period of delay prior to their trials, that observation misses
the point of those cases.  With respect to the relevant
consideration"the defendants' ability to defend themselves
despite the passage of time"they were in precisely the same
situation as a defendant who had long since been indicted.
The initiation of a formal criminal prosecution is simply
irrelevant to whether the defense has been prejudiced by
delay.
       Although being an ``accused'' is necessary to trigger the
Clause's protection, it is not sufficient to do so.  The
touchstone of the speedy trial right, after all, is the sub-
stantial deprivation of liberty that typically accompanies an
``accusation,'' not the accusation itself.  That explains why
a person who has been arrested but not indicted is entitled
to the protection of the Clause, see Dillingham, supra, even
though technically he has not been ``accused'' at all.  And
it explains why the lower courts consistently have held
that, with respect to sealed (and hence secret) indictments,
the protections of the Speedy Trial Clause are triggered not
when the indictment is filed, but when it is unsealed.  See,
e.g., United States v. Watson, 599 F. 2d 1149, 1156-1157,
and n. 5 (CA2 1979), modified on other grounds sub nom.
United States v. Muse, 633 F. 2d 1041 (CA2 1980) (en banc);
United States v. Hay, 527 F. 2d 990, 994, and n. 4 (CA10
1975); cf. United States v. Lewis, 907 F. 2d 773, 774, n. 3
(CA8 1990).
       It is misleading, then, for the Court to accuse the Govern-
ment of ``ask[ing] us, in effect, to read part of Barker right
out of the law,'' ante, at 7, a course the Court resolutely
rejects.  For the issue here is not simply whether the
relevant language from Barker should be read out of the
law, but whether that language trumps the contrary logic
of Marion, MacDonald, and Loud Hawk.  The Court's
protestations notwithstanding, the two lines of authority
cannot be reconciled; to reaffirm the one is to undercut the
other.
       In my view, the choice presented is not a hard one.
Barker's suggestion that preventing prejudice to the defense
is a fundamental and independent objective of the Clause
is plainly dictum.  Never, until today, have we confronted
a case where a defendant subjected to a lengthy delay after
indictment nonetheless failed to suffer any substantial
impairment of his liberty.  I think it fair to say that Barker
simply did not contemplate such an unusual situation.
Moreover, to the extent that the Barker dictum purports to
elevate considerations of prejudice to the defense to funda-
mental and independent status under the Clause, it cannot
be deemed to have survived our subsequent decisions in
MacDonald and Loud Hawk.
      Just because the Speedy Trial Clause does not indepen-
dently protect against prejudice to the defense does not, of
course, mean that a defendant is utterly unprotected in this
regard.  To the contrary, ```the applicable statute of limita-
tions . . . is . . . the primary guarantee against bringing
overly stale criminal charges,''' Marion, 404 U. S., at 322
(quoting Ewell, 383 U. S., at 122).  These statutes ``repre-
sent legislative assessments of relative interests of the
State and the defendant in administering and receiving
justice; they `are made for the repose of society and the
protection of those who may [during the limitation] . . .
have lost their means of defence.'''  404 U. S., at 322
(quoting Public Schools v. Walker, 9 Wall. 282, 288 (1870)).
Because such statutes are fixed by the legislature and not
decreed by courts on an ad hoc basis, they ``provide predict-
ability by specifying a limit beyond which there is an
irrebuttable presumption that a defendant's right to a fair
trial would be prejudiced.''  404 U. S., at 322.
        Furthermore, the Due Process Clause always protects
defendants against fundamentally unfair treatment by the
government in criminal proceedings.  See United States v.
Lovasco, 431 U. S. 783 (1977).  As we explained in Marion,
``the Due Process Clause . . . would require dismissal of [an]
indictment if it were shown at trial that [a] delay . . .
caused substantial prejudice to [a defendant's] rights to a
fair trial and that the delay was an intentional device to
gain tactical advantage over the accused.''  404 U. S., at
324.  See also MacDonald, 456 U. S., at 8 (``The Sixth
Amendment right to a speedy trial is . . . not primarily
intended to prevent prejudice to the defense caused by
passage of time; that interest is protected primarily by the
Due Process Clause and by statutes of limitations'').
   Therefore, I see no basis for the Court's conclusion that
Doggett is entitled to relief under the Speedy Trial Clause
simply because the Government was negligent in prosecut-
ing him and because the resulting delay may have preju-
diced his defense.
                                 B
       It remains to be considered, however, whether Doggett is
entitled to relief under the Speedy Trial Clause because of
the disruption of his life years after the criminal events at
issue.  In other words, does the Clause protect a right to
repose, free from secret or unknown indictments?  In my
view, it does not, for much the same reasons set forth
above.
       The common law recognized no right of criminals to
repose.  ``The maxim of our law has always been `Nullum
tempus occurrit regi,' [`time does not run against the king'],
and as a criminal trial is regarded as an action by the king,
it follows that it may be brought at any time.''  2 J. Ste-
phen, A History of the Criminal Law of England 1, 2 (1883)
(noting examples of delays in prosecution ranging from 14
to 35 years).  See also F. Wharton, Criminal Pleading and
Practice 316, p. 209 (8th ed. 1880) (``While . . . courts look
with disfavor on prosecutions that have been unduly
delayed, there is, at common law, no absolute limitation
which prevents the prosecution of offences after a specified
time has arrived'') (footnote omitted); 1 H. Wood, Limitation
of Actions 28, p. 117 (4th ed. 1916) (``At common law there
is no limitation to criminal proceedings by indictment'').
       That is not to deny that our legal system has long
recognized the value of repose, both to the individual and to
society.  But that recognition finds expression not in the
sweeping commands of the Constitution, or in the common
law, but in any number of specific statutes of limitations
enacted by the federal and state legislatures.  Such statutes
not only protect a defendant from prejudice to his defense
(as discussed above), but also balance his interest in repose
against society's interest in the apprehension and punish-
ment of criminals.  Cf. Toussie v. United States, 397 U. S.
112, 114-115 (1970).  In general, the graver the offense, the
longer the limitations period; indeed, many serious offenses,
such as murder, typically carry no limitations period at all.
See e.g., Note, The Statute of Limitations in Criminal Law:
A Penetrable Barrier to Prosecution, 102 U. Pa. L. Rev. 630,
652-653 (1954) (comparing state statutes of limitations for
various crimes); Uelmen, Making Sense out of the Califor-
nia Criminal Statute of Limitations, 15 Pac. L. J. 35, 76-79
(1983) (same).  These statutes refute the notion that our
society ever has recognized any general right of criminals
to repose.
       Doggett, however, asks us to hold that a defendant's
interest in repose is a value independently protected by the
Speedy Trial Clause.  He emphasizes that at the time of his
arrest he was ``leading a normal, productive and law-
abiding life,'' and that his ``arrest and prosecution at this
late date interrupted his life as a productive member of
society and forced him to answer for actions taken in the
distant past.''  Supplemental Brief for Petitioner on Reargu-
ment 2.  However uplifting this tale of personal redemption,
our task is to illuminate the protections of the Speedy Trial
Clause, not to take the measure of one man's life.
       There is no basis for concluding that the disruption of an
accused's life years after the commission of his alleged
crime is an evil independently protected by the Speedy Trial
Clause.  Such disruption occurs regardless of whether the
individual is under indictment during the period of delay.
Thus, had Doggett been indicted shortly before his 1988
arrest rather than shortly after his 1980 crime, his repose
would have been equally shattered"but he would not have
even a colorable speedy-trial claim.  To recognize a constitu-
tional right to repose is to recognize a right to be tried
speedily after the offense.  That would, of course, convert the
Speedy Trial Clause into a constitutional statute of limita-
tions"a result with no basis in the text or history of the
Clause or in our precedents.

                                II
       Our constitutional law has become ever more complex in
recent decades.  That is, in itself, a regrettable develop-
ment, for the law draws force from the clarity of its com-
mand and the certainty of its application.  As the comp-
lexity of legal doctrines increases, moreover, so too does the
danger that their foundational principles will become
obscured.  I fear that danger has been realized here.  So en-
grossed is the Court in applying the multifactor balancing
test set forth in Barker that it loses sight of the nature and
purpose of the speedy trial guarantee set forth in the Sixth
Amendment.  The Court's error, in my view, lies not so
much in its particular application of the Barker test to the
facts of this case, but more fundamentally in its failure
to recognize that the speedy trial guarantee cannot be
violated"and thus Barker does not apply at all"when an
accused is entirely unaware of a pending indictment against
him.
       I do not mean to question Barker's approach, but merely
its scope.  We have long recognized that whether an
accused has been denied his right to a speedy trial ``depends
upon circumstances.''  Beavers v. Haubert, 198 U. S. 77, 87
(1905).  By setting forth a number of relevant factors,
Barker provided this contextual inquiry with at least a
modicum of structure.  But Barker's factors now appear to
have taken on a life of their own.  Instead of simply guiding
the inquiry whether an individual who has been deprived of
a liberty protected by the Clause is entitled to relief, Barker
has become a source for new liberties under the Clause.  In
my view, application of Barker presupposes that an accused
has been subjected to the evils against which the Speedy
Trial Clause is directed"and, as I have explained, neither
pretrial delay nor the disruption of life is itself such an
evil.
       Today's opinion, I fear, will transform the courts of the
land into boards of law-enforcement supervision.  For the
Court compels dismissal of the charges against Doggett not
because he was harmed in any way by the delay between
his indictment and arrest, but simply because the Govern-
ment's efforts to catch him are found wanting.  Indeed, the
Court expressly concedes that ``if the Government had
pursued Doggett with reasonable diligence from his indict-
ment to his arrest, his speedy trial claim would fail.''  Ante,
at 9.  Our function, however, is not to slap the Government
on the wrist for sloppy work or misplaced priorities, but to
protect the legal rights of those individuals harmed thereby.
By divorcing the Speedy Trial Clause from all consider-
ations of prejudice to an accused, the Court positively
invites the Nation's judges to indulge in ad hoc and result-
driven second-guessing of the government's investigatory
efforts.  Our Constitution neither contemplates nor tolerates
such a role.  I respectfully dissent.


