Due Process

Unless otherwise indicated, all indented material is copied directly from the court’s opinion.

Decisions of the Tennessee Supreme Court

Decisions of the Tennessee Court of Criminal Appeals


State v. Johnson, No. E2021-01106-CCA-R3-CD, p. 5 (Tenn. Ct. Crim. App. May 18, 2023). 

In the context of a delay between a defendant’s arrest and indictment, a due process violation will be found when (1) there has been a delay; (2) it caused the accused to suffer actual prejudice; and (3) the state caused the delay to gain tactical advantage or to harass the defendant. State v. Dykes, 803 S.W.2d 250, 255-56 (Tenn. Crim. App. 1990), overruled on other grounds by State v Hooper, 29 S.W.3d 1 (Tenn. 2000).

State v. Potts, No. W2021-01508-CCA-R3-CD, p. 14 (Tenn. Ct. Crim. App. Feb. 14, 2023).

In Tennessee, it is well-settled law that “delay between the commission of an offense and the commencement of adversarial proceedings” implicates Defendant’s Fifth Amendment due process rights. State v. Gray, 917 S.W.2d 668, 671 (Tenn. 1996) (quoting State v. Dykes, 803 S.W.2d 250, 255 (Tenn. Crim. App. 1990), overruled on other grounds as stated in State v. Hooper, 29 S.W.3d 1, 8 (Tenn. 2000)) (internal quotation marks omitted). The Due Process Clause requires dismissal of an indictment “if it were shown at trial that the pre-indictment delay . . . caused substantial prejudice to the [defendant’s] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” United States v. Marion, 404 U.S. 307, 324 (1971). Likewise, our supreme court has stated,

[b]efore an accused is entitled to relief based upon delay between the offense and the initiation of adversarial proceedings, the accused must prove that (a) there was a delay, (b) the accused sustained actual prejudice as a direct and proximate result of the delay, and (c) the State caused the delay in order to gain a tactical advantage over or to harass the accused.

Dykes, 803 S.W.2d at 256.


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