(dissenting). I take issue with the majority on a single, but nevertheless controlling, point of law. The majority states that the defendant may prevail if the sixteen-year delay in commencing prosecution has violated his right to due process. The majority, however, relies on an improper assignment of the burden of proof in the test of that right. The test of whether prosecutorial delay violates due process was discussed in the Seventh Circuit in United States v. King, 593 F.2d 269, 272 (1979):
Two of the questions left unanswered [by Marion and Lovasco] are (1) given actual prejudice resulting from the delay, what sort of purpose or reason behind the delay must be shown to give rise to a due process violation, and (2) who bears the burden of proof on the issue. Some courts have seemed to require the defendant to prove that issuance of the indictment was purposefully delayed in an attempt by the Government to gain a tactical advantage over the defendant. ... Others have read Lovasco as only requiring the defendant to prove actual prejudice, after which showing it is up to the court to balance the reasons asserted by the Government against the *910prejudice asserted by the defendant. ... We believe that the latter view is the better one and most closely follows the balancing analysis employed by the Supreme Court in Lovasco.
In order for the court to weigh the competing interests correctly, it is necessary for it to be fully apprised of the reasons asserted by the Government as necessitating the pre-indictment delay. These reasons can best be put forward by the Government. Accordingly, once the defendant has proven (1) actual prejudice (2) resulting from the delay, the burden shifts to the Government to show why the delay was necessary. (Citations omitted.)
The approach of the King opinion has been followed, not only in the seventh circuit,1 but also in the fourth, fifth, and ninth federal circuits. United States v. Automated Medical Laboratories, Inc., 770 F.2d 399, 403-404 (4th Cir. 1985); United States v. Townley, 665 F.2d 579, 581-582 (5th Cir. 1982); United States v. Saunders, 641 F.2d 659, 665 (9th Cir. 1981); United States v. Wallace, 848 F.2d 1464, 1470 (9th Cir. 1988).
Other federal circuits, like the majority in this case, assign to the defendant the burden to prove that the government acted with an impermissible motive. United States v. Marler, 756 F.2d 206, 213-215 (1st Cir. 1985); United States v. Hoo, 825 F.2d 667, 671 (2d Cir. 1987); United States v. Sebetich, 776 F.2d 412, 430 (3d Cir. 1985); United States v. Padilla, 819 F.2d 952 (10th Cir. 1987); United States v. Benson, 846 F.2d 1338, 1340-1343 (11th Cir. 1988) (but see n. 5). These cases, with the exception of Hoo, are devoid of any reasoning *911to support their assignment of this burden. Moreover, these cases deal with delays on the order of ten or twenty months, in contrast with the sixteen year delay the defendant in this case has suffered. Finally, these cases uniformly consider defendants’ claims to relief that are in addition to their protection under the applicable statutes of limitation. Although most of these cases, like the majority opinion in the instant case, note that statutes of limitation are “‘the primary guarantee against bringing overly stale criminal charges,’” United States v. Marion, 404 U.S. 307, 322 (1971), the defendant in this case has no statute of limitations protection. For these reasons, I find these precedents unpersuasive.
The proper test of due process assigns to the state the burden of showing a legitimate reason for the prosecutorial delay after a defendant has shown actual prejudice has resulted. Because the state controls the prosecution, the state is obviously better able than a defendant to explain the reasons for prosecutorial delay. Proving another party’s motive, especially after an interval of many years, must often be an impossible task. Contrary to the majority's assertion (at pages 903-906), the state should carry the burden on the question of necessity.
State v. Rivest, 106 Wis. 2d 406, 316 N.W.2d 395 (1982), upon which the majority relies, does not assign the burden of the second step of this due process test to the defendant. I would overrule State v. Davis, 95 Wis. 2d 55, 288 N.W.2d 870 (Ct. App. 1980), which to my mind relies upon, and states, an improper allocation of the burden of proof.
The majority also misstates the subject matter to be proved in step two. It is not the burden of the state to prove absence of bad motives for the delay. Rather, the *912state has an affirmative duty to show legitimate reasons for the delay. At that point, it is the duty of the court to balance those reasons against the actual prejudice.
The majority assumes in this case that the defendant has sustained actual prejudice. It can hardly do otherwise in view of the fact that two key defense witnesses have died, medical records are missing, and other witnesses have repeatedly changed their stories. Dr. Wagner’s testimony, in particular, would have been of substantial assistance in dispelling an attribution of guilt to Wilson. The resolution of the due process claim in this case rests on the second test.
We do not normally review the exercise of prosecu-torial discretion. Nor do I suggest that there are not many legitimate reasons that will justify prosecutorial delay even if a defendant is prejudiced. However, I do believe that the fifth amendment demands that where, as here, a criminal defendant has been actually and substantially prejudiced by the prosecutorial delay, courts must undertake some meaningful review of the exercise of prosecutorial discretion.
The trial court erroneously required the defendant to prove an improper motive for the state’s delay in pursuing this prosecution. I would therefore reverse and remand to the trial court to give the state the opportunity to assume its burden of showing what government interest justified the acknowledged prejudice that inured to the defendant as the result of the sixteen-year delay. If the state fails to carry its burden, the prosecution should be dismissed.
I therefore dissent.
I am authorized to state that JUSTICE ABRA-HAMSON joins in this dissent.The King opinion is followed in the seventh circuit by United States v. Solomon, 688 F.2d 1171, 1179 (1982). But compare also in the seventh circuit: United States v. Sweeney, 688 F.2d 1131, 1137 (1982), United States v. Rein, 848 F.2d 777, 781 (1988).