Conrad

Prosecutorial delay, during which a witness favorable to the defense dies, may violate state due process and speedy trial guarantees. If, however, the lost testimony may nonetheless be presented to the jury by other means, such as an instruction to the jury, the prejudice can be substantially mitigated, thus affording due process and a fair trial.

Here, the trial court, rather than fashioning a less severe remedy, dismissed the case because a witness died during the prosecution’s delay. We reverse because the trial court should have fashioned a less severe solution to protect defendant’s due process and fair trial rights.

FACTUAL AND PROCEDURAL BACKGROUND

The following evidence is taken from the transcripts of defendant’s parole revocation and preliminary hearings and other documentary evidence presented in connection with defendant’s motion to dismiss.

Defendant was convicted of rape in 1966 and of committing a lewd act with a child in 1966 and 1973, and, as a result, was required to register as a sex offender. (Pen. Code, § 290; hereafter, unspecified statutory references are to the Penal Code.)

Following his release from Atascadero State Hospital in November 2003,…