WWiilllliiaamm && MMaarryy LLaaww RReevviieeww Volume 31 (1989-1990) Article 4 Issue 3 April 1990 WWhheenn JJuuddggeess AAbbaannddoonn AAnnaallooggyy:: TThhee PPrroobblleemm ooff DDeellaayy iinn CCoommmmeenncciinngg CCrriimmiinnaall PPrroosseeccuuttiioonnss Phyllis Goldfarb Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Criminal Procedure Commons RReeppoossiittoorryy CCiittaattiioonn Phyllis Goldfarb, When Judges Abandon Analogy: The Problem of Delay in Commencing Criminal Prosecutions, 31 Wm. & Mary L. Rev. 607 (1990), https://scholarship.law.wm.edu/ wmlr/vol31/iss3/4 Copyright c 1990 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr WHEN JUDGES ABANDON ANALOGY: THE PROBLEM OF DELAY IN COMMENCING CRIMINAL PROSECUTIONS PHYLLIS GOLDFARB* Time is like a river made up of the events which happen, and a violent stream [it is]; for as soon as a thing has been seen, it is carried away and another comes in its place and this will be car- ried away as well. Marcus Aurelius1 It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? If you accuse a man of a crime the next day, -he may be enabled to bring forward his servants and family to say where he was and what he was about at the time; but if the charge be not pre- ferred for a year or more, how can he clear himself? No man's life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial. 2 Baron Alderson Time is not a neutral feature with respect to the quality of ad- versarial trials. Indeed, time can affect adversarial fact-finding in a variety of ways. Until the close of the eighteenth century, for ex- ample, the trials of British subjects who had been taken into cus- tody were held immediately after arraignment.' This rush to trial disproportionately favored the prosecution because the accused * Assistant Professor of Law, Boston College Law School. B.A., Brandeis University, 1978; Ed.M., Harvard University, 1979; J.D., Yale University, 1982; LL.M., Georgetown Uni- versity, 1985. I am indebted to Arthur Berney, Robert Bloom, Mark Brodin, James Doyle, James Fellows, Ingrid Hillinger, Leonard Mandell, Zygmunt Plater, James Repetti and Al- fred Yen for their assistance and helpful comments on earlier drafts. I wish to thank as well Greg Barksdale and Caroline Oehmler for research assistance, and Dean Daniel Coquillette for generous research support. 1. G. LONG, MEDITATIONS OF MARCUS AURELIUS 140 (Book IV, T 43) (1930), quoted in D. GRANFIELD, THE INNER EXPERIENCE OF LAW: A JURISPRUDENCE OF SUBJECTIrITY 265 (1988). 2. The Queen v. Robins, 1 Cox Crim. Cas. 114 (Somerset Winter Assizes 1844). 3. See J. GOEBEL & T. NAUGHTON, LAW ENFORCEMENT IN COLONIAL NEW YORK. A STUDY IN CRIMINAL PROCEDURE 610-11 (1944), cited in Clinton, The Right to Present a Defense: An Emergent Constitutional Guaranteei n Criminal Trials, 9 IND. L. REV. 711, 721 (1976). WILLIAM AND MARY LAW REVIEW [Vol. 31:607 rarely had sufficient opportunity to gather evidence and witnesses, to prepare carefully, or to present a full defense. Ironically, the sluggish pace of the contemporary American crim- inal process can accomplish the same mischief as did the speed of British trials of an era past. Frequently, of course, arrests follow soon after alleged offenses, and formal processing commences within hours or days of the arrest. In a troubling minority of cases, however, an arrest is made months or years after an alleged of- fense, or is not made at all, and prosecution originates via grand jury indictment.4 In these cases, charges are first filed after an ex- tended period of delay,5 for which there may be manifold explana- tions. These explanations may include dilatory reporting of offenses,6 investigatory difficulty in producing a likely offender 7 in- ability to apprehend a suspected offender," a standard waiting pe- riod before the next grand jury term,9 prolonged investigation of 4. See S. SALTZBURG, AMERICAN CRIMINAL PROCEDURE 17 (1984) (citing National Advisory Commission on Criminal Justice Standardsa nd Goals: Courts 11-15 (1973)). "In some situ- ations, the accused may have no formal contact with the law until he has been indicted by a grand jury. Following such an indictment, a court order may be issued authorizing police officers to take the accused into custody. But these are exceptional situations." Id. 5. These delays can be of considerable length. See, e.g., United States v. Benson, 846 F.2d 1338, 1340 (11th Cir. 1988) (eight-year delay); United States v. Eckhardt, 843 F.2d 989, 994 (7th Cir.) (nine-year delay), cert. denied, 109 S. Ct. 106 (1988); United States v. Bartlett, 794 F.2d 1285, 1287 (8th Cir.) (five-year delay), cert. denied, 479 U.S. 934 (1986); United States v. Coppola, 788 F.2d 303, 308 (5th Cir. 1986) (five-year delay); Stoner v. Graddick, 751 F.2d 1535, 1543-47 (11th Cir. 1985) (per curiam) (nineteen-year delay); Payne v. Rees, 738 F.2d 118, 120 (6th Cir. 1984) (six-year delay); Scherling v. Superior Court, 22 Cal. 3d 493, 500, 585 P.2d 219, 223, 149 Cal. Rptr. 597, 601 (1978) (nine-year delay); People v. Archerd, 3 Cal. 3d 615, 621, 477 P.2d 421, 423, 91 Cal. Rptr. 397, 399 (1970) (eleven-year delay); Commonwealth v. Patten, 401 Mass. 20, 22, 513 N.E.2d 689, 691 (1987) (ten-year delay); State v. Luck, 15 Ohio St. 3d 150, 153, 472 N.E.2d 1097, 1104 (1984) (fifteen-year delay), cert. denied, 470 U.S. 1084 (1985); Story v. State, 721 P.2d 1020, 1026 (Wyo.) (seven- teen-year delay), cert. denied, 479 U.S. 962 (1986). The record for longest pre-accusation delay may reside with State v. Jurgens, 424 N.W.2d 546, 550 (Minn. Ct. App. 1988), in which the court upheld against due process challenge an indictment issued 22 years after the alleged offense. 6. See United States v. Indelicato, 611 F.2d 376 (lst Cir. 1979); Story, 721 P.2d at 1020. 7. See, e.g., Patten, 401 Mass. at 20, 513 N.E.2d at 689; Commonwealth v. Imbruglia, 377 Mass. 682, 387 N.E.2d 559 (1979), Commonwealth v. Ward, 14 Mass. App. Ct. 37, 436 N.E.2d 439 (1982). 8. See, e.g., United States v. Solomon, 688 F.2d 1171 (7th Cir. 1982); Smith v. United States, 414 A.2d 1189 (D.C. 1980). 9. See United States v. Ismaili, 828 F.2d 153 (3d Cir. 1987), cert. denied, 485 U.S. 935 (1988). 1990] THE PROBLEM OF DELAY 609 the defendant,10 continuing investigation against co-defendants," the need to maintain an informant's or undercover officer's street identity for a longer period,2 bureaucratic inefficiency,'3 or bureaucratic priority. 4 Although some of these explanations are understandable, the consequent delays in charging the suspect can pose difficulties that go beyond inconvenience or anxiety.' The gravest danger posed by such delay is the subversion of the system itself, the distortion of the adversary process.'6 This distortion results from the erosion of evidence as the clock ticks during the pre-accusation period. 10. See, e.g., id.; United States v. Brock, 782 F.2d 1442 (7th Cir. 1986); United States v. Atisha, 804 F.2d 920 (6th Cir. 1986), cert. denied, 479 U.S. 1067 (1987); United States v. Bliss, 735 F.2d 294 (8th Cir. 1984); United States v. Durnin, 632 F.2d 1297 (5th Cir. 1980); United States v. Surface, 624 F.2d 23 (5th Cir. 1980); United States v. Hood, 593 F.2d 293 (8th Cir. 1979); United States v. Walker, 601 F.2d 1051 (9th Cir. 1979); Commonwealth v. Best, 381 Mass. 472, 411 N.E.2d 442 (1980); Commonwealth v. Canon, 373 Mass. 494, 368 N.E.2d 1181, cert. denied, 435 U.S. 933 (1977); Commonwealth v. Horan, 360 Mass. 739, 277 N.E.2d 491 (1972). 11. See, e.g., United States v. Coppola, 788 F.2d 303 (5th Cir. 1986); United States v. Singer, 687 F.2d 1135 (8th Cir. 1982); United States v. Ciampaglia, 628 F.2d 632 (1st Cir.), cert. denied, 449 U.S. 956 (1980); United States v. Taylor, 603 F.2d 732 (8th Cir.), cert. denied, 444 U.S. 982 (1979). 12. See United States v. Johnson, 802 F.2d 833 (5th Cir. 1986); United States v. Jones, 524 F.2d 834 (D.C. Cir. 1975); Robinson v. United States, 459 F.2d 847 (D.C. Cir. 1972); Woody v. United States, 370 F.2d 214 (D.C. Cir. 1966) (per curiam); Godfrey v. United States, 358 F.2d 850 (D.C. Cir. 1966) (per curiam); Powell v. United States, 352 F.2d 705 (D.C. Cir. 1965); Ross v. United States, 349 F.2d 210 (D.C. Cir. 1965). 13. See United States v. Benson, 846 F.2d 1338 (11th Cir. 1988); United States v. Sebe- tich, 776 F.2d 412 (3d Cir. 1985), cert. denied, 484 U.S. 1017 (1988); United States v. Wil- liams, 738 F.2d 172 (7th Cir. 1984); United States v. Purham, 725 F.2d 450 (8th Cir. 1984); United States v. Townley, 665 F.2d 579 (5th Cir.), cert. denied, 456 U.S. 1010 (1982); United States v. MacDonald, 632 F.2d 258 (4th Cir. 1980), rev'd, 456 U.S. 1 (1982); United States v. Walker, 601 F.2d 1051 (9th Cir. 1979); United States v. Mays, 549 F.2d 670 (9th Cir. 1977). 14. See United States v. Adams, 834 F.2d 632 (7th Cir. 1987), cert. denied, 484 U.S. 1046 (1988); Townley, 665 F.2d at 579; United States v. King, 560 F.2d 122 (2d Cir.), cert. denied, 434 U.S. 925 (1977); United States v. Smyth, 556 F.2d 1179 (5th Cir. 1977); United States v. Mejias, 552 F.2d 435 (2d Cir.), cert. denied, 434 U.S. 847 (1977). 15. Minimizing anxiety is one of the goals of speedy trial protection. See United States v. Ewell, 383 U.S. 116, 120 (1966). 16. In Barker v. Wingo, 407 U.S. 514, 532 (1972), the Supreme Court indicated that the most severe form of prejudice that pretrial delay can create is impairment of the ability to present a defense because such impaired ability "skews the fairness of the entire system." 610 WILLIAM AND MARY LAW REVIEW [Vol. 31:607 This Article examines the law of pre-accusation delay17 in light of the requirements of both adversarial fact-finding and analogical reasoning. I contend that current law does not adequately address the harm generated by pre-accusation delay, and that other doctri- nal choices more responsive to the problem and more protective of the adversary process are available to the courts. Further, the Article suggests that the judicial doctrine chosen in pre-accusation delay cases does not represent a true application of analogical reasoning processes. Rather, it represents a failure to use such reasoning processes in a conventional manner. Therefore, the law of pre-accusation delay provides fertile ground for cultivat- ing insight into the actual processes of practical legal reasoning. The goal of the Article is two-fold: to improve current legal analy- sis of the charging delay problem, and to use the charging delay problem to enhance our general understanding of the internal workings of American legal culture. Section I illustrates and describes the contours of the charging delay problem. Section II surveys the prevailing constitutional analysis of the problem, as shaped over the past two decades by the Supreme Court and elaborated by lower courts. Section III re- views a variety of alternative doctrinal analyses that the courts could have developed to address the problem, followed in Section IV by an assessment of the merits of these analyses and their fit with traditional representations of analogical reasoning processes. Section V develops a likely explanation of the abandonment of traditional analogical reasoning in charging delay cases and evalu- ates its impact on systemic legitimacy. Finally, Section VI proposes the expansion of traditional analogical reasoning in the interest of generating ideas about practicable alternatives to categorical legal analysis. 17. The terms "pre-accusation delay," "pre-charge delay," "charging delay," and "pre- indictment delay" are used interchangeably in this Article. Although "pre-indictment delay" is the most common denomination of the phenomenon described, it is technically the least accurate of the labels because a person can be charged via complaint or information prior to the issuance of the indictment. See S. SALTZBURG, supra note 4, at 17-23 (citing National Advisory Commission on Criminal Justice Standards and Goals: Courts 11-15 (1973)) (describing the steps in the criminal process). Therefore, I have shown a preference in this Article for the other labels, although all are intended to describe the same set of circumstances. 1990] THE PROBLEM OF DELAY I. THE CHARGING DELAY PROBLEM A. Illustration8' The telephone rings in your law office. The clerk of the court is calling, informing you that you have been appointed to a criminal case in which the client will be arraigned today. The original grand jury indictment charges your client with armed assault. You report to the court, read the indictment and the police report, and meet with your client. You learn the following: The police report alleges that your client, while driving a car, pointed a gun at another driver, an undercover police officer. The offense allegedly occurred on a crowded residential street on a warm day sixteen months ago. Your client was not arrested until she was taken into custody today on the indictment warrant. The primary evidence against her is a photo identification that the complaining witness made on the day of the incident. You speak to your client. She reports that she was not involved in the incident alleged. During the preceding sixteen months, the authorities gave her no notice whatsoever that she was a suspect in the case. She lives in the neighborhood in which the charged inci- dent occurred and recalls vaguely that she heard several people in the neighborhood talking some time ago about an incident similar to that alleged, although she cannot recall their identities. She be- lieves that witnesses to the incident may live in her neighborhood, and that they may be able to verify her non-involvement. Your client also informs you that although she is employed now and living on her own, she was between jobs at the time of the incident and living with her family. She thinks that on the day of the offense, she was probably searching for work because that was what she was doing virtually every day during that time period. She also thinks that had she been notified promptly of the impor- tance of the underlying date, she would have been able to recon- struct more specifically her activities and whereabouts than mem- ory allows today. She believes as well that the family members with whom she lived would have been able to corroborate her ac- 18. If this example sounds strange, it is a strangeness borne of reality. The narrative re- cited closely parallels a case that I litigated. See United States v. Jenkins, Crim. No. F-5268- 83 (D.C. Sup. Ct. Apr. 5, 1984). WILLIAM AND MARY LAW REVIEW [Vol. 31:607 count. At this point, however, they will likely be unable to recall her conduct of a day long past. With this information in hand, you contact an investigator to accompany you on a door-to-door canvass of the neighborhood in which the charged offense occurred. You want to do this immedi- ately because so much time has already elapsed since the charged offense. Your investigation succeeds in locating some witnesses. But when asked to discuss sixteen-month-old events, the witnesses provide information that is conclusory at best and devoid of detail. No one remembers seeing your client at the scene of the incident. Although these witnesses may have once supported the position that your client was misidentified as a participant, their present memories lack specificity. One of the witnesses indicates that in addition to the passage of time, a head injury she suffered in a recent car accident has contributed to the deterioration of her memory. In the course of your investigation, you also learn about the exis- tence of others who are believed to have had information about the alleged offense. For example, several persons with whom you spoke believe that someone who formerly lived in the neighborhood is the principal witness to the underlying incident. She has moved out of town, however, and no one knows where she currently resides. Had you been able to contact her at an earlier date, you would have arranged for this witness to leave a forwarding address with you so that she might be reached to serve as a witness at trial. Another person reports that she once overheard a neighborhood resident speaking of the alleged offense as if he were knowledgeable about it. Unfortunately, this man died recently. You are frustrated by the failure of your investigative efforts and feel acutely the effect of a lengthy charging delay on your ability to mount a defense on your client's behalf. The difficulty of your job has multiplied, as has the risk to your client, by virtue of the gov- ernment's taking so long to secure an indictment. You begin to consider legal strategies. Surely, you believe, there must be some proscription against charging a case at such a leisurely pace that its defense is undermined. You research the law of pre-indictment delay and decide to file a motion to dismiss the indictment due to unreasonable and prejudicial delay. 1990] THE PROBLEM OF DELAY B. Description In a system that relies on retrospective reconstruction of com- plex events,19 delay at any stage of the criminal process can erode information of evidentiary significance through memories dimmed, witnesses gone and artifacts lost2. 0 Delay at the pre-accusation phase represents the sharpest threat to the fact-finding integrity of the criminal process because the opportunity to preserve sources of evidence never arises. Suspects who werenot arrested, questioned, or in any way notified that they would later be called to account for specific acts alleged to have occurred at a specific time are thereby precluded from taking steps to preserve potential evidence from gradual and inevitable diminution over time.21 If put on no- tice, defendants-to-be might ask potential witnesses to make notes of their observations of particular events, arrange to keep track of the whereabouts of witnesses, secure physical evidence, or record their own and others' recollections when memories are fresh. With- out notice, however, these preservative measures are unavailable.22 19. For an analysis of the problems and hazards of accurate fact-finding at trial, see gen- erally J. FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE (1949). 20. See, e.g., United States v. Comosona, 848 F.2d 1110 (10th Cir. 1988) (defendant claimed memory failure and inability to locate witnesses); United States v. Benson, 846 F.2d 1338 (11th Cir. 1988) (defendant claimed unavailability of two witnesses, death of govern- ment agent testifying for defense and destruction of important evidence); Prantil v. Califor- nia, 843 F.2d 314 (9th Cir.) (defendant claimed witness had memory loss), cert. denied, 109 S. Ct. 158 (1988); United States v. Acevedo, 842 F.2d 502 (1st Cir. 1988) (defendant claimed memory impairment and inability to locate witnesses); United States v. L'Allier, 838 F.2d 234 (7th Cir. 1988) (defendant claimed memory loss for himself and witnesses); United States v. Ismaili, 828 F.2d 153 (3d Cir. 1987) (defendant claimed death of two key witnesses and loss of records), cert. denied, 485 U.S. 935 (1988); United States v. Atisha, 804 F.2d 920 (6th Cir. 1986) (defendant claimed memory loss for himself and witnesses), cert. denied, 479 U.S. 1067 (1987); United States v. Royals, 777 F.2d 1089 (5th Cir. 1985) (defendant claimed inability to locate investigative file); United States v. MacDonald, 632 F.2d 258 (4th Cir. 1980) (defendant claimed loss of witness), rev'd, 456 U.S. 1 (1982); United States v. Elsbery, 602 F.2d 1054 (2d Cir.) (defendant claimed some witnesses had become antagonistic and others' memories had dimmed), cert. denied, 444 U.S. 994 (1979). 21. Based on experimental findings, psychologists have graphed a "forgetting" curve, in- dicating that memory drops off sharply within a short time after an event. See, e.g., H. EBBINGHAUS, MEMORY: A CONTRIBUTION TO PSYCHOLOGY 62-80 (Dover ed. 1964) (originally published 1885), cited in E. LoFTus & J. DOYLE, EYEWITNESS TESTIMONY CIVIL AND CRIMINAL 71 (1987); see also Gardner, The Perception and Memory of Witnesses, 18 CORNELL L.Q. 391, 392-93 (1933). 22. In Tolliver v. United States, 378 A.2d 679 (D.C. 1977), which rejected a due process challenge to eighteen months of pre-indictment delay, the court based its holding on the WILLIAM AND MARY LAW REVIEW [Vol. 31:607 In some circumstances, pre-accusation delay may cause the pros- ecution to suffer attrition of evidence. For example, if the delay has resulted from dilatory reporting, the prosecution will not have had the opportunity to take steps to preserve its sources of evi- dence. Such delay can benefit the defense and may even result in dismissal of the charges when the prosecutor determines that the remaining evidence is insufficient to support a conviction.23 On the other hand, in cases such as the illustration provided in Section IA, time operates as a defendant's nemesis. The state, hav- ing embarked on an investigation when a criminal incident first comes to light, can safeguard its case by taking preservative mea- sures unavailable to the defense.24 The upshot of this, according to Justice Douglas, is that during the period prior to formal accusa- tion, "the State may proceed methodically to build its case while the prospective defendant proceeds to lose his.''25 Given the dis- proportionate adversarial advantage that, according to some ob- fact that the government had arrested appellant within one month of the offense and had contacted him several times prior to the indictment. These factors, the court stated, sug- gested that the appellant "was clearly on notice that he was accused in the case and that he was aware at an early point after the offense that he would need an explanation of his whereabouts on the day of the offense." Id. at 681. 23. Whether the impairment of the prosecution's case helps or hurts a defendant will vary with the circumstances. Generally, defendants raising claims of prejudicial pre-accusation delay may not rely on the impaired memories of prosecution witnesses as proof of prejudice suffered. See, e.g., United States v. Marler, 756 F.2d 206, 214 (1st Cir. 1985) (no due process violation when prosecution witnesses suffered memory lapses); United States v. Snyder, 668 F.2d 686, 689 (2d Cir.) (same), cert. denied, 458 U.S. 1111 (1982). This result is surprising because the memory loss of a prosecution witness can impair cross-examination, which Wig- more called "the greatest legal engine ever invented for the discovery of truth." 5 WIGMORE. EVIDENCE § 1367 (Chadbourn rev. ed. 1974). Without effective cross-examination, the de- fendant's confrontation clause protection may be weakened. See U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the Witnesses against him ....").T he presentation of a defense occurs through cross-examina- tion of prosecution witnesses as well as through direct examination of defense witnesses. See generally Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 HARv. L. REV. 567 (1978). Nevertheless, the Supreme Court has re- fused to link the right to present a defense to effective cross-examination of a memory- impaired prosecution witness. See, e.g., United States v. Owens, 484 U.S. 554 (1988). 24. As the court said in United States v. Jones, 524 F.2d 834, 844 n.21 (D.C. Cir. 1975), "We have recognized that the inability of an accused or his witnesses to recall past events in detail can affect credibility insofar as the jury must contrast general denials with detailed testimony by police officers whose memories are refreshed by notes or other records." 25. United States v. Marion, 404 U.S. 307, 331 (1971) (Douglas, J., concurring). 1990] THE PROBLEM OF DELAY 615 servers, the prosecution already enjoys,26 time becomes an even heavier thumb on the scales, undermining trust in the accuracy and fairness of case outcomes. This specter of distorted fact-find- ing turns the phenomenon of bureaucratic heel-dragging into a problem of constitutional dimensions. II. THE CONSTITUTIONAL ANALYSIS A. The Supreme Court Although statutes of limitation provide the traditional protec- tion against delay-related hardships to the defense,28 the Supreme 26. See generally Goldstein, The State and the Accused. Balance of Advantage in Crimi- nal Procedure, 69 YALE L.J. 1149 (1960). 27. See, e.g., Kadish, Methodology and Criteria in Due Process Adjudication-A Survey and Criticism, 66 YALE L.J. 319 (1957) (examining the values that ground the constitutional concept of procedural due process). The author states: The various procedural safeguards traditionally demanded in the name of due process appear to be directed to two objectives. One is the goal of insuring the reliability of the guilt-determining process-reducing to a minimum the possi- bility that any innocent individual will be punished. It is not of crucial impor- tance whether the individual tried is in fact guilty or innocent, but it is of crucial concern that the integrity of the process of ascertaining guilt or inno- cence never be impaired. If in this effort to insure that none but those guilty be convicted, many guilty go free, the price is not too great in the long view of democratic government. If there is any consideration basic to all civilized pro- cedures it is this, no matter how disparate the means chosen to give it effect. Id. at 346. 28. See United States v. Ewell, 383 U.S. 116, 122 (1966). The purposes of statutes of limitation are to protect persons from having to defend themselves against charges obscured by time and to encourage officials to commence expeditious prosecutions. See Toussie v. United States, 397 U.S. 112, 114-15 (1970). The Supreme Court has indicated that criminal statutes of limitation should be construed liberally in the defendant's favor. United States v. Habig, 390 U.S. 222, 227 (1968) (citing United States v. Scharton, 285 U.S. 518, 522 (1932)). Every jurisdiction has statutes of repose or limitation barring prosecutions unless charges are filed within a stated period after the offense. See, e.g., 18 U.S.C. § 3282 (1982) (provid- ing a five-year statute of limitation for non-capital offenses); Mass. Gen. L. ch. 277, § 63 (1955 & Supp. 1989) (providing a ten-year statute of limitation for serious felonies, specifi- cally listed); Mass. Gen. L. ch. 136, § 9 (1962) (providing a six-month statute of limitation for certain "blue laws"). Even though statutes of limitation pose an outside limit on filing indictments, they do not pose an outside limit on informing defendants that they have been charged. Federal Rule of Criminal Procedure 6(e)(4) authorizes sealing timely filed indictments until the defendant is in custody. The purpose of the rule is to minimize the risk that knowledge of the issuance of an indictment would enable the defendant to avoid arrest. United States v. Muse, 633 F.2d 1041, 1043 (2d Cir. 1980), cert. denied, 450 U.S. 984 (1981). But if the defendant can show "substantial actual prejudice" due to the delay in unsealing the indictment, it must be dis-