dissenting.
Defendant was convicted of aggravated murder and sentenced to death. The majority holds that the state failed to bring defendant to trial “without delay” and, therefore, violated Article I, section 10, of the Oregon Constitution. The majority reverses defendant’s conviction, vacates his sentence of death, and remands the case to the trial court with instructions to dismiss the indictment with prejudice. For the reasons explained below, I respectfully dissent.
FACTS
Defendant was charged with aggravated murder (three counts) in connection with the death of a child. The majority provides a detailed chronology of the events that occurred between the discovery of the child’s body in 1989 and defendant’s conviction in 1994.
When the trial court denied defendant’s motion to dismiss the indictment on speedy-trial grounds, it found in part:
*100“5.
“The State in pursuing the appeals of the Trial Court’s Orders of February 1, 1990 and May 27, 1993 were [sic] on both occasions in good faith and the appeals were not frivolous in nature and were not undertaken to vex or frustrate defendant’s desire for a speedy trial and were [sic] not done to gain a judicial or competitive advantage in the trial that was to come.”
Concerning the issue of trial prejudice, the court found:
“17.
“There is no compelling and cogent evidence that suggests defendant’s ability to defend himself and receive a fair trial has been impaired.
“18.
“The position by the defendant that defendant’s ability to receive a fair trial because of the extraordinary delay has been impaired is a reach on the part of the defendant as solid evidence supporting that position is not apparent to the court.
“19.
“The death of State’s witness Detective Erickson in February 1993 has not materially adversely affected the defendant’s chances of receiving a fair trial and presenting the kind of defense he would have presented had the case gone to trial in January and February of 1990 or in June of 1993. It is to be noted that Detective Erickson had already passed away prior to [the state’s] decision to file the second appeal and pursue the three extensions of time before abandoning the appeal on January 21,1994.”
In denying defendant’s motion to dismiss the indictment, the trial court explained:
“The consideration of all ‘factors’ including the circumstances mentioned above bearing on the question of prejudice have caused the Court to conclude that while the delay is extraordinary and shocking and has indeed prejudiced defendant Harberts by reason of his long pre-trial incarceration and the attendant anxiety and concern, this is counter-balanced by the nature of the charges against *101this defendant and the Court’s Finding of February 28, 1990 [denying defendant’s motion for release pending appeal because of a strong presumption of guilt] so as to render the prejudice defendant suffered to be of insufficient magnitude to warrant dismissal.”
In State v. Ivory, 278 Or 499, 504, 564 P2d 1039 (1977), this court adopted the four Barker factors for the purpose of analyzing a claim of “undue delay” under Article I, section 10. See Barker v. Wingo, 407 US 514, 530-33, 92 S Ct 2182, 33 L Ed 2d 101 (1972) (explaining “factors”). This court later held that it was mistaken in adopting one of the Barker factors, i.e., whether the defendant asserted the right to a speedy trial. State v. Dykast, 300 Or 368, 375 n 6, 712 P2d 79 (1985).1 Thus, the other three Barker factors — the length of the delay, the reasons for the delay, and the resulting prejudice to the defendant — make up the present analysis under Article I, section 10. State v. Emery, 318 Or 460, 468 n 13, 869 P2d 859 (1994). In my opinion, the majority’s analysis of the case law surrounding Article I, section 10, as well as its application of that case law to the facts of this case, is seriously flawed. I proceed to demonstrate where, I believe, the majority goes astray.
LENGTH OF THE DELAY
The majority concludes that the length of the delay in this case was not so manifestly excessive that we may ignore the other Barker factors. 331 Or at 88-89.1 agree. This court never has characterized a pretrial delay as sufficient, because of its length alone, to justify dismissal under Article I, section 10. See State v. Vawter, 236 Or 85, 96, 386 P2d 915 (1963) (describing the standard of automatic dismissal as being a delay that “shocks the imagination and the conscience”).
REASONS FOR THE DELAY
I note first that the majority significantly mischar-acterizes one of the state’s arguments regarding the reasons *102for the delay to be that the state’s right to appeal under ORS 138.060(3) “trumps” Article I, section 10.2 The state does not make that argument. Rather, the state argues that its appeals were statutorily authorized and temporally reasonable and, therefore, did not violate Article I, section 10.
The majority correctly concludes that
“the decision to take, and the time devoted to the resolution of, the state’s first appeal was consistent with the state’s constitutional duty to exercise reasonable diligence in bringing defendant to trial.”
331 Or at 90. Thus, the majority recognizes that at least 80 percent of the pretrial delay in this case, i.e., from July 1989 until June 1993, was constitutionally unobjectionable. According to the majority, it is what occurred thereafter that precipitated the constitutional violation.
The state’s second appeal caused about seven and one-half months of delay. The majority chastises the state for taking the second appeal, concluding that the state lacked “strong justification” for doing so. As did the trial judge, the majority engages in “Monday morning quarterbacking.”
When evaluating the “justification” for pretrial delay, I find the reasoning of the United States Supreme Court in United States v. Loud Hawk, 474 US 302, 106 S Ct 648, 88 L Ed 2d 640 (1986), to be persuasive. See State v. Kennedy, 295 Or 260, 267, 666 P2d 1316 (1983) (“when this court cites federal opinions in interpreting a provision of Oregon law, it does so because it finds the views there expressed persuasive, not because it considers itself bound to do so”). The Loud Hawk Court emphasized that
“there are important public interests in the process of appellate review. The assurance that motions to suppress evidence or to dismiss an indictment are correctly decided *103through orderly appellate review safeguards both the rights of defendants and the ‘rights of public justice.’ ”
474 US at 313. Loud Hawk instructs that
“an interlocutory appeal by the Government ordinarily is a valid reason that justifies delay. In assessing the purpose and reasonableness of such an appeal, courts may consider several factors. These include the strength of the Government’s position on the appealed issue, the importance of the issue in the posture of the case, and — in some cases — the seriousness of the crime.”
Id. at 315 (emphasis added). In my view, it is eminently sensible to evaluate interlocutory appeals by looking to the strength of the state’s position, the importance of the appealed issue to the state’s case, and the seriousness of the crime.
In this case, the state had strong justification for a second appeal. At the time when the state decided to appeal the second suppression order, the suppressed evidence appeared to be critical to the state’s case. No direct evidence, other than the suppressed statements, linked defendant to the crime. The physical evidence, to some extent, was ambiguous. Some of the evidence could have been interpreted to suggest that the victim’s father and/or the father’s girlfriend had committed the crime. Without defendant’s inculpatory statements, the state’s case against defendant was entirely circumstantial. Defendant himself concedes that, without the suppressed statements, the state’s case against him was “significantly weakened.” Indeed, during his closing argument at trial, defendant’s counsel told the jury:
“There were three adults in this house when this [murder] happened. * * * There are no witnesses to this crime, there are no admissions, there are no confessions, there are no eyewitnesses whatsoever. There is no direct evidence linking anyone to this crime, none.”
In my view, the prosecutor’s decision to take a second appeal was fully justified under the circumstances. The state’s position was not as strong as it had been during the first appeal, however, given the seriousness of the charges against defendant and the importance of the suppressed statements to the state’s case, I believe that the state acted *104with strong justification in taking and pursuing its second appeal. The majority’s conclusion to the contrary represents a judgment call with which I cannot concur.
Moreover, the majority ignores the fact that, by voluntarily moving to dismiss its second appeal, the state no doubt advanced defendant’s trial date by at least a year. In my view, the state’s action in dismissing the appeal weighs in favor of the state because it demonstrates the state’s good faith effort to comply with Article I, section 10, even at the risk of jeopardizing the prosecution of the case by going to trial without the evidence of defendant’s incriminating statements.
The Attorney General did not give the state’s second appeal the priority it required. Even assuming, however, that the Appellate Division’s handling of the state’s second appeal was negligent, this court has stated that, although negligent delay weighs against the state, it does not weigh as heavily as intentional misconduct by the state. See Dykast, 300 Or at 377-78 (intentional or malicious acts intended to injure a defendant or gain unfair advantage weigh “much more heavily than inadvertent or negligent conduct”). Moreover, the record here contains abundant and unchallenged evidence of the Appellate Division’s heavy caseload at the relevant time. See Strunk v. United States, 412 US 434, 436, 93 S Ct 2260, 37 L Ed 2d 56 (1973) (in determining whether Sixth Amendment was violated, delay caused by understaffed prosecutors weighs less heavily than intentional delay calculated to hamper defense).
Finally, the majority faults the state for not bringing the case to trial promptly after the Court of Appeals dismissed the state’s second appeal. However, in my view, even assuming that the District Attorney’s failure to set the case for trial promptly was due to negligence, given the seriousness of the charges against defendant, the remaining few months of pretrial delay simply are insufficient to show a state constitutional violation.
PREJUDICE
Defendant was incarcerated for almost five years. During that period, he undoubtedly experienced some anxiety and concern. In my view, however, that type of prejudice is not entitled to much weight in the analysis.
*105Here again, the majority mischaracterizes the state’s argument to be that the only type of prejudice that is relevant under the prejudice prong of the analysis is prejudice to the defense. The state does not make that argument. Rather, the state argues that, of the three types of prejudice that can be caused by pretrial delay, the “most serious” is impairment of a defendant’s ability to present a defense. See Barker, 407 US at 532 (so stating). In fact, in its respondent’s brief in this court, the state specifically acknowledges:
“Although less serious than impairment of defense, pretrial delay also may prejudice a defendant by reason of incarceration and anxiety.”
Courts have recognized that anxiety and concern are inherent in any criminal prosecution and have not given them much weight. See, e.g., United States v. Simmons, 536 F2d 827, 831 (9th Cir 1976) (“Conclusory allegations of general anxiety and depression are present in almost every criminal prosecution.”). In Dykast, 300 Or at 378, this court recognized that “[m]ost criminal prosecutions cause stress, discomfort and interference with a normal life.” And, in Emery, this court gave little weight to the defendant’s claims of anxiety, explaining:
“We recognize that delay adds to the ordinary anxiety and inconvenience caused by the pending criminal charge, however, there was no cognizable prejudice to defendant.”
318 Or at 473. Under Article I, section 10, pretrial anxiety and concern, although ostensibly entitled to some weight in determining whether a defendant was prejudiced by delay, appear not to factor significantly.
TRIAL PREJUDICE
The majority factors Detective Erickson’s death into the “prejudice to the defense” prong of the Barker analysis. Erickson died in 1992, before this court resolved the state’s first appeal. In my view, allegedly prejudicial events should not be factored into the analysis if, like Erickson’s death, they occurred during a period of reasonable delay.
The majority apparently believes that the “prejudice to the defense” prong is intended to evaluate the cumulative effect of all changes in circumstance between the time of *106defendant’s arrest and the time of trial, regardless of the timing of the events that led to those changes of circumstance. Article I, section 10, however, does not confer on a criminal defendant a right to a trial in the identical format that the trial would have taken if it had commenced on the day the defendant was arrested. Instead, that provision mandates that the state avoid “unreasonable delay” in bringing the matter to trial (or other resolution). Logically, then, dismissal of charges is intended to remedy any prejudice to a defendant caused by the state’s failure to avoid unreasonable delay. Oregon case law supports the view that Article I, section 10, was not intended to provide a remedy for all prejudicial events that might occur before trial.
First, Oregon courts have established that one of the purposes of Article I, section 10, is to “limit the possibility” of impairment to a defendant’s ability to put on a defense. Dykast, 300 Or at 378. When the state avoids unreasonable delay, it limits the possibility of prejudice to the defendant. However, the state cannot eliminate that possibility. Holding the state responsible for prejudicial events that occur when the state is meeting its constitutional obligations can do little to effectuate the purpose of limiting the possibility of prejudice.
Second, this court has suggested that the date on which an allegedly prejudicial event occurred is important. In Ivory, the defendant was indicted secretly in January 1975, but was not arrested and did not learn of the indictment until December 1975. 278 Or at 501, 509 n 8. The defendant moved to dismiss, claiming that he had been prejudiced by the disappearance of two witnesses. After concluding that the period of delay between the indictment and the arrest was unreasonable, this court noted that those witnesses had been seen last in March 1975 and June 1975, respectively. The court went on to find that the defendant had demonstrated prejudice “by identification of potentially favorable witnesses who could not be found due to a delayed trial.” Id. at 508 (emphasis added). The Ivory court appears to have factored the prejudicial event (the disappearance of the witnesses) into the analysis because the witnesses had disappeared during a period of unreasonable delay.3
*107I concede that prejudicial events that occur during periods of reasonable delay occasionally might factor into another element of the constitutional calculus, such as the “reasons for the delay” prong of the Barker analysis. For example, when the state learns that a defense witness has fallen terminally ill and has limited time to testify, it is reasonable for the state to expedite the trial or otherwise to perpetuate the witness’s testimony. In such a case, the state has warning of an impending prejudicial event, and a failure to expedite trial or to preserve the evidence appropriately should be considered when evaluating the reasonableness of the state’s conduct. Nevertheless, I would hold that events like the death of Erickson, i.e., events occurring during a period of reasonable delay, should be excluded from the prejudice element of the analysis. Moreover, I agree with the state that the allegations of prejudice caused by Erickson’s death are too speculative to merit any weight in the prejudice analysis.
I also would reject defendant’s claim that he was prejudiced because his ability to impeach the victim’s father and the father’s girlfriend with inconsistent statements was undermined by the passage of time. Despite the majority’s conclusory insistence otherwise, 331 Or at 86 n 8, defendants must demonstrate more than a “reasonable possibility” of prejudice to their defenses.
In Mende, this court stated:
“[Defendant] has not demonstrated any actual prejudice to his ability to prepare a defense.
“We speak of ‘actual’ prejudice because, as a practical matter, and despite [language from Haynes suggesting that prejudice might not be considered under the Oregon Constitution], our prior cases all have required in effect that *108there be some degree of actual prejudice to the ability to prepare a defense to the charge in order to establish a constitutional violation * * *.”
304 Or at 22-23 (emphasis added). The wording “in effect” signaled that, although in the past the court had articulated one standard, in practice it had effectuated another. The standard set out in Mende, and controlling here, requires actual trial prejudice as distinct from a mere possibility of trial prejudice.
In this case, defense counsel was able to demonstrate at trial inconsistencies between statements made by the father and his girlfriend to police officers on the day of the crime and their testimony at trial. The father and his girlfriend each testified that their earlier statements to the police were made during a period of extreme emotional upset and either were incomplete or mistaken. Each denied that he or she had killed the child. Thus, the jury heard the complete testimony of all three principal suspects in this case, was alerted to the discrepancies in their testimony, and had every opportunity to evaluate their individual credibility and demeanor. Nothing different would have occurred had the case been tried 12 months earlier. As noted, the trial court expressly concluded that defendant’s claim of prejudice “is a reach * * * as solid evidence supporting that [claim] is not apparent to the court.” I agree. Defendant has not demonstrated the actual prejudice to his ability to prepare a defense that is required by Article I, section 10. Mende, 304 Or at 22.
ASSERTION OF THE RIGHT
In Barker, the Supreme Court made a defendant’s assertion of or failure to assert his right to a speedy trial one of the factors to be considered in speedy-trial analysis. 407 US at 528. As noted, after Dykast, this court no longer considers a defendant’s failure to demand a quicker pace in the proceedings. On review of the court’s opinion in Dykast, however, I agree with the state that Dykast was decided incorrectly.
*109According to the majority:
“Abandoning Dykast would require us also to abandon the well-established principle that Article I, section 10, contains a mandatory directive to the state that is ‘not within the disposal of the parties[.]’ ”
331 Or at 87 n 9. Dykast did not analyze the assertion issue in terms of waiving constitutionally mandated state conduct. In fact, Dykast contained no analysis of the assertion issue whatsoever. Instead, the court took the rather dramatic step of eliminating a factor from the Barker analysis in a footnote containing nothing more than a citation to Vawter, 236 Or at 87, for the proposition that “this court has consistently held that it is not incumbent upon the accused to demand a trial[.]” Dykast, 300 Or at 375 n 6. Vawter, in turn, cited to State v. Dodson, 226 Or 458, 466, 360 P2d 782 (1961). Vawter, 236 Or at 87. Dodson, however, was decided on statutory, not constitutional, grounds. The Dodson court explicitly declined to determine whether the rule that a defendant need not take affirmative action to procure his right should be applied where a defendant claims only a violation of Article I, section 10. 226 Or at 466. Thus, Dodson provides no support for the Dykast holding that assertion of the right is irrelevant to an Article I, section 10 analysis.
Simply considering a defendant’s demands for a speedy trial or lack thereof as one of the factors in the Barker calculus is not equivalent to requiring a defendant to assert the right to a speedy trial at peril of waiver. The Barker court recognized that reality when it rejected the “demand-waiver rule” and, instead, adopted “a balancing test, in which the conduct of both the prosecution and the defendant are weighed.” 407 US at 529-30. That balancing test specifically placed the “primary burden on the courts and the prosecutors to assure that cases are brought to trial.” Id. at 529.
Finally, given the severity of the remedy for a speedy-trial violation, i.e., dismissal with prejudice, it is nonsensical to allow a defendant to sit quietly as time passes— potentially weakening the state’s case — only to assert an “unreasonable delay” late in the proceedings, thus preserving the issue for appeal if convicted.4
*110Because “unreasonable delay” analysis is intended to be flexible and to take into account all relevant factors,5 this court should consider as relevant a criminal defendant’s timely assertion of the right to a speedy trial, or lack thereof. By “timely,” I mean at a time when the harm still may be avoided, i.e., before unreasonable delay has occurred. The majority does not explain why it is unpersuaded by the arguments in favor of abandoning Dykast. I am troubled by the majority’s failure to deal substantively with those arguments.
The majority also states that abandoning Dykast would require us to
“overrule Vawter and hold that a defendant is responsible for insuring that a case is scheduled for trial.”
331 Or at 87 n 9. Abandoning Dykast would require neither.
As noted, the Vawter court’s assertion that “it is not incumbent upon the accused to demand a trial or take affirmative action to enforce his right to a speedy trial” was followed by a citation to Dodson, which was authority only for the proposition that an accused need not take affirmative action to enforce his statutory right to a speedy trial. Even if we were to interpret the above sentence from Vawter as expanding the rule from Dodson to include the constitutional mandate (something that, as noted, the Dodson court explicitly declined to consider), the sentence means only that, in Oregon, the mandate regarding a speedy trial is not waived by a defendant’s failure to demand such a trial.
The authorities cited in Dodson state simply that the duty of ensuring the (statutory) right to a speedy trial falls on the state, not the defendant. See State v. Crosby, 217 Or 393, 402, 342 P2d 831 (1959) (bringing a case to trial timely “is in the hands of the prosecutor and the court, not the defendant”); State v. Chadwick, 150 Or 645, 650, 47 P2d 232 (1935) *111(“The law imposes no duty on a defendant * * * [to insist that his or her case] be set for trial at any particular time. That duty devolves upon the state.”). Placing the duty to move forward on the prosecutor and the courts rather than on the defense does not preclude consideration of evidence of the defense’s desire to move forward (or lack thereof) as a factor in a test for a constitutional violation. See Barker, 407 US at 528 (“[T]he better rule is that the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.”). Although it is not incumbent on a defendant to demand a trial, doing so can be helpful to that defendant in making out a speedy-trial claim. Recognizing that a defendant’s desire or lack of desire for a speedy trial is relevant to a speedy-trial claim (even though a defendant does not waive the right to a speedy trial by failing to demand one), neither requires us to overrule Vawter nor requires us to hold that a defendant is responsible for insuring that a case is scheduled for trial.
CONCLUSION
In summary, the trial court explicitly found that both the state’s appeals were taken in good faith, were not taken to vex or frustrate defendant’s desire for an expeditious trial, and were not taken to gain a judicial or competitive advantage over defendant in the trial. I read the majority opinion essentially to agree with all those findings.
Although the pretrial delay in this case is lengthy, an analysis of the Barker factors does not lead me to the conclusion that defendant is entitled to the severe remedy of dismissal with prejudice. See Barker, 407 US at 522 (characterizing that remedy as “unsatisfactorily severe”). In my view, there was strong justification for the state’s appeals. The combination of the importance of the suppressed evidence to the state’s case, the seriousness of the crimes charged, and the absence of actual trial prejudice, strongly suggests to me that the majority holding in this case is an unwarranted reaction to the majority’s conclusion that the District Attorney and the Attorney General fumbled the ball. The majority holding results not injustice being administered “completely and without [unreasonable] delay,” but, rather, in justice *112being completely denied. The majority analysis has the potential to chill the state’s ability to pursue in good faith statutorily authorized and important pretrial remedies in the prosecution of serious criminal cases.
My dissent in this case should not be read as an endorsement of the manner in which the District Attorney and the Attorney General handled this case. The state was negligent. However, I cannot agree that that negligence reached constitutional dimensions. On this record, I am not persuaded that defendant has shown that he was deprived of his state constitutional right to have “justice” administered “completely and without [unreasonable] delay.” Accordingly, I would proceed to consider defendant’s other arguments under this particular assignment of error and, if appropriate, his other assignments and arguments on review.
I dissent.
For the reasons explained post I conclude that Dykast was decided incorrectly. However, even without considering defendant’s failure to demand a speedy trial, I would hold that Article I, section 10, was not violated in these circumstances.
The majority states:
“The state's argument reduces to the assertion that, even when a defendant has been incarcerated pretrial, the state’s statutory right to take an interlocutory appeal frees it from the constitutional mandate of Article I, section 10.”
331 Or at 89.
It appears that only one federal court has addressed the issue whether a prejudicial event must occur during a period of unreasonable delay to be factored into *107the Barker analysis. That court declined to consider prejudice caused by the death of a witness, explaining that the death occurred only one month after the defendant’s indictment and arrest:
“Certainly the government cannot be charged with unreasonable delay at that point in time * * *. Considering the length of time between indictment and trial, the reasons for the continuances, appellant’s failure to object to postponements until the day before he was tried, and his failure to show any substantial prejudice he suffered because of the continuances, we conclude he was not denied his Sixth Amendment right to speedy trial.”
United States v. Anderson, 471 F2d 201, 203 (5th Cir 1973) (emphasis added).
Generally, delay bolsters the defense of a criminal case. See Loud Hawk, 474 US at 315 (passage of time may make it difficult or impossible for state to prove its *110case beyond a reasonable doubt); Barker, 407 US at 521 (delay is not an uncommon defense tactic; delay may work to the defendant’s advantage). In this case, it is interesting to note that, although the state’s second appeal was dismissed in January 1994, defendant’s counsel did not inquire about the status of the case until April 1994.
The point of the \Barker\ formula is that all relevant criteria be examined and not overlooked or ignored.” Haynes v. Burks, 290 Or 75, 81, 619 P2d 632 (1980).