Dеfendant was charged with delivery of less than 50 grams of cocaine, subsections (1) and (2)(a)(iv) of MCL 333.7401; MSA 14.15(7401). After two days of trial, the circuit court dismissed the case on October 23, 1980, finding that defendant was unduly prejudiced by the 196-day delay between the alleged criminal transaction and the date of arrest, and that the delay was intentional. The people now appeal.
The defendant allegedly delivered one gram of cocaine to Marie Waalkes on August 21, 1979. This sale was one that occurred during on ongoing undercover narcotics investigation in the Muskegon area. The investigation cеased on March 5, 1980, when 55 warrants were issued against 35 persons, including the defendant.
Waalkes, a state trooper, testified that she worked as an undercover agent with Thomas Morse, an informant from the area. She said that Morse identified the defendant to her when they met at the house of another suspected drug dealer. Waalkes again encountered the defendant on August 21 at the Rock Saloon, where the alleged sale occurred. The trooper believed she encountered the defendant at least two more times before the investigation ceased, аlthough she had not mentioned one of these meetings in her preliminary examination testimony. Waalkes said that her *786 identification of the defendant was positive, that she was not confusing him with other long-haired and bearded men at the Rock Saloon.
Morse indicated he had known the defendant for about four years and could positively identify him as the individual who sold a gram of cocaine to Waalkes on August 21. Morse admitted that he had a prior criminal record which included two felony convictions.
A surveillance officer who saw Waalkes and Morse with another individual in the Rock Saloon said that defendant looked like that person, but he was unable to positively identify the defendant at trial.
Defendant denied knowing Marie Waalkes, said Morse was "an enemy” and not someone hе would have trusted to arrange a drug transaction, and stated he was unable to recall what transpired on August 21, 1979.
After hearing arguments on the defendant’s motion to dismiss, the trial court found that the 196-day delay bеtween the offense and the arrest was explainable, as the troopers did not want to "blow” their cover, was deliberate, as it was intentional, and was unduly prejudicial. After hearing the prosеcution’s arguments for reconsideration, it ordered the case dismissed.
In ruling on the motion, the court applied the test enunciated in
People v Hernandez,
The three prongs of the
Hernandez
test have been analyzed repeatedly in this Court. The first, whether the delay is exрlainable, is straightforward. In this case, the trial court ruled that the delay had been adequately explained by the fear of blowing the cover of the undercover officers. This explanation also was considerated adequate in
People v Anderson,
The second prong of the test, whether the delay was deliberate, is somewhat ambiguous, but has been interpreted to mean "deliberate delay to рrejudice the defendant”.
People v White,
The third prong of the test examines whether there was "undue prejudice”. The court’s finding of *788 such prejudice was based on defendant’s inability to recall the events of the night of August 21, the lack of corroborating testimony to support the identification testimony, and the incredibility of Morse. The two latter factors raise a question about the accuracy of the identificаtion. This finding is supported by the testimony.
Were our inquiry to end at this point, we would hold that, although the court misapplied the Hernandez test when it found an intentional delay to be deliberate, the conclusion that defendant’s due process rights had been violated would not be clearly erroneous. We feel constrained, however, to reconsider the applicability of Hernandez, which was decided in 1968, in light of subsequent interpretations of due process law by the United States Supreme Court.
Two United States Supreme Court cases decided after 1968 have addressed the problem of preindictment or preаrrest delay. In
United States v Marion,
No Michigan case has analyzed the impact of *789 these two cases on the test set out in Hernandez, although at least two cases cited both Hernandez and Lovasco in determining whether prearrest delay required reversal. Parshay, supra, Anderson, supra.
We believe, however, that at least three questions are raised in applying Lovasco. First, who should bear the burden of proof in determining whether a defеndant’s due process rights have been violated? Under Hernandez, the prosecution carried this burden, but Lovasco and its progeny are unclear on this point. Second, does Lovasco preclude a finding of á due process violation whenever the prosecution explains the delay, regardless of the severity of the рrejudice? Under Hernandez, any finding of undue prejudice would suffice to establish a due process violation, but Lovasco holds that a showing of actual prejudice is insufficient. In considering the problem, we observe that thеre was no finding of undue prejudice in Lovasco, only a finding by the lower court of some actual prejudice.
Several jurisdictions have interpreted
Lovasco
as placing an extremely heavy burden on a defendant, requiring a defendant to prove both actual prejudice and unexplainable delay.
United States v Mills,
641 F2d 785, 788 (CA 9, 1981),
United States v Rogers,
639 F2d 438, 440 (CA 8, 1981),
United States v Durnin,
632 F2d 1297, 1299 (CA 5, 1980),
People v Small,
Courts in other jurisdictions have suggested that
Lovasco
may not limit the due process protection so severely. See, for example,
Commonwealth v Best,
We believe that Illinois’ interpretation of Lovasco provides an appropriate method of balancing the state’s interest in delaying certain prosecutions with a defendant’s need for a prompt trial. When a delay is deliberately undertaken to prejudiсe a defendant, little actual prejudice need be shown to establish a due process claim. Where, however, there is a justifiable reason for the delay, the defendant must show more — thаt the prejudice resulting from the delay outweighs any reason provided by the state.
In many respects the Illinois test is similar to Michigan’s three-part inquiry. Under Hernandez, the reason for the delay and the deliberatеness of the delay are examined. Illinois’ inquiry into the reasonableness of the delay embraces both of these inquiries. Both the Hernandez and Illinois tests consider the prejudice resulting from the delay.
The difference in the two tests lies, however, in how the factors are to be evaluated. Under Hernandez, if the prosecution fails to establish any of *791 the three prongs of the test, a due process violation may be found. The Illinois balancing approach, however, permits a court to weigh the prejudice from the delay against the reason for the delay. As noted earlier, Lovasco and its progeny compel a reconsideration of the applicability of the Hernandez test. Having done so, and after reviewing decisions from other jurisdictions, we conclude that the Illinois approach is the most appropriate. It allows a court tо consider all of the factors determined by Hernandez to be relevant, and to weigh the competing interests in determining whether a defendant has been denied his right to due process of law. Accordingly, we hold that, once a defendant has shown some prejudice, the prosecution bears the burden of persuading the court that the reason for the delay is sufficient to justify whatever prejudice rеsulted. This approach places the burden of coming forward with evidence of prejudice on the defendant, who is most likely to have facts regarding prejudice at his disposal. The burden of persuasion rests with the state, which is most likely to have access to facts concerning the reasons for delay and which bears the responsibility for determining when an investigation should end.
In this case, the lower court erred slightly in its application of the Hernandez test. As we now hold that a balancing test should be used in evaluating due process claims, we remand this case for the trial court to reconsider the defendant’s motion to dismiss under the balancing test. Remand is particularly appropriate as the trial court alone had the opportunity to evaluate first hand the prejudice resulting to the defendant from the prosecutor’s reasonable delay.
Remanded.
Notes
CPL 30.20, 30.30, People v Singer, infra.