dissenting
I respectfully dissent.
The majority uses this case to revisit State v. Clark, 291 Or 231, 630 P2d 810, cert den 454 US 1084 (1981), and State v. Edmonson, 291 Or 251, 630 P2d 822 (1981). In Clark, the court was unable to resist the temptation to discuss issues involved in the case on a broader basis than the record imperatively required. See, Street v. New York, 394 US 576, 581, 89 S Ct 1354, 22 L Ed 2d 572 (1969).
If dicta had force of law, I could perhaps understand the preoccupation of the majority with Clark and its progeny, Edmonson. It does not, and I object to “unnecessarily broad dicta,” United States v. Knotts, 51 USLW 4232, 4236 (1983), which merely serves to confuse analysis. In providing guidance to other courts, I recognize we often include in our opinions material that, technically, constitutes dicta. However, Clark, Edmonson and this case do not require such dicta to resolve the issues involved.
I believe the goal of the majority opinion is desirable. The achievement of this goal will produce better justice and judicial administration. Defendants charged by information and scheduled for preliminary hearings will not be indicted at the last moment leaving prosecution and defense witnesses in uncertainty as to when and where they are to testify. It will *385relieve the confusion of defendants being told their case has been dismissed at a preliminary hearing, only to be arrested and often jailed because of an indictment handed down days later. It will help defense counsel in scheduling appearances and relieve counsel of the need to prepare for a hearing that never occurs. However, all of this can be corrected by needed and proper legislation or constitutional amendment. I dissent because it is not the role of this court to take two perfectly valid and constitutional methods of charging approved by a mandate of the people and warp legal reasoning to obtain a desired result.
GRAND JURY V. PRELIMINARY HEARING
The defendant was indicted by a grand jury. He does not contest the validity of the indictment but claims the denial of a preliminary hearing deprived him of equal treatment under the law. In my view, the defendant was not entitled to a preliminary hearing for the reasons which follow.
At least 30 states have granted prosecuting attorneys discretion to initiate felony prosecutions by either grand jury indictment or information and preliminary hearing.1 The prosecutor’s authority is derived variously from the state’s constitution or by statute. In Oregon, a search of ancient history or probing constitutional analysis is not required to discern the source of the prosecutor’s discretion to initiate criminal prosecutions by submission to the grand jury for indictment or alternatively by the filing of an information. In 1974, the people adopted an amendment to the Oregon Constitution which in no uncertain terms conveyed wide discretionary powers to the prosecutor in the selection of charging methods. Article VII, Sections 4,5 and 6, provides in part:
“(4) The district attorney may charge a person on an information filed in circuit court of a crime punishable as a felony if the person appears before the judge of the circuit court and knowingly waives indictment.
“(5) The district attorney may charge a person on an information filed in circuit court if, after a preliminary hearing before a magistrate, the person has been held to answer upon a *386showing of probable cause that a crime punishable as a felony has been committed and that the person has committed it, or if the person knowingly waives preliminary hearing.
“(6) An information shall be substantially in the form provided by law for an indictment. The district attorney may file an amended indictment or information whenever, by ruling of the court, an indictment or information is held to be defective in form.”
In the Official Voter’s Pamphlet prepared by the Secretary of State for the November, 1974, General Election the people were fully apprised of the broad discretionary power they were conferring on their elected district attorneys:
“The proponents believe that elimination of most grand jury proceedings is a desirable method of accomplishing greater efficiency in criminal cases. The grand jury is duplicative of the preliminary hearing step often employed in a criminal case. If such a preliminary hearing discloses that probable cause exists to proceed against the accused, there is no need for the grand jury to repeat the process of determining whether there is probable cause. In cases where the district attorney is himself in doubt as to probable cause to proceed, he may, under the proposed amendment, take such cases to the grand jury. He may also take any felony case to the grand jury, so that the district attorney in smaller, less busy counties may continue to employ the grand jury in all felony cases if he chooses. Thus, the proposed system, based on the discretion of the district attorney, assures that each county can follow the system best suited to its needs.”
This constitutional amendment was enacted by the people with support from various groups closely connected with the justice system.
“* * * Groups on record in favor of this proposal include the Criminal Law Committee of the Oregon State Bar, the American Civil Liberties Union, the Oregon District Attorneys Association, and the Oregon Criminal Law Revision Commission.” Official Voters’ Pamphlet of Oregon, 1974 General Election, p 14.
Voters were advised by opponents that the measure would provide district attorneys with significant discretionary authority.
“But this measure does not abolish the Grand Jury and substitute a needed reform. Instead it allows the district *387attorney to use this antiquated and unfair method at his option.” Id. at 15.
This recent history evinces that no preliminary hearing following grand jury indictment was intended by the people nor was there an intent to require prosecutors to have standards, articulated or not, for their charging decisions.
This is not to suggest that prosecutors should have unbridled, runaway authority to charge as they please, without regard for invidious discrimination, fundamental rights or human dignity. But that is not the issue here, which the majority candidly notes: “Nothing in the record suggests prejudice or bad faith on the part of the prosecutor.” 295 Or at 381.
This case calls for nothing more than an analysis of prosecutorial discretion applied to the instant facts.
The majority, as in Clark, cites Hawkins v. Superior Court, 22 Cal 3d 584, 586 P2d 916 (1978), where the Supreme Court of California analyzed the alleged procedural advantages afforded defendants prosecuted by information versus those who were indicted by a grand jury. In Hawkins, the California court ruled in a 5-2 majority that the prosecutor’s decision to proceed by information or by grand jury indictment was totally discretionary and consequently the state had arbitrarily created a discriminatory classification for felony defendants.2
In Clark, this court seemingly rejected the Hawkins court’s classification scheme with the following dicta:
“We do not follow the Hawkins court to the conclusion, however, that this difference between two available procedures necessarily represents a denial of equal protection of the laws, regardless of showing which defendants receive one or the other procedure. Hawkins reached this conclusion in ‘classification’ terms, by defining as two classes those who are indicted and those who are charged by information. But we think this is an example of the ‘circular’ use of the concept of ‘class’ mentioned above. The distinction to be tested is the use or nonuse of preliminary hearings. The ‘classes’ said to fail the *388test of equal protection are the ‘class’ of those defendants who receive preliminary hearings (because charged by information) and the ‘class’ of those who do not (because indicted). But these defendants do not exist as categories or as classes with distinguishing characteristics before and apart from a prosecutor’s decision how to charge one, or some, or all defendants. Aside from the manner in which the decision is made, see City of Klamath Falls, supra, 289 Or at 785-785 (Lent, J., dissenting), defendants charged under either procedure are ‘classes’ only as an effect of the dual procedural scheme itself. As in City of Klamath Falls, supra, ‘these defendants [i.e. those who do not receive a preliminary hearing] are not denied such a “privilege” as individual persons, but only because they are members of a “class” of persons who are prosecuted [by indictment] as distinct from persons prosecuted [on an information.]’ 289 Or at 776.” State v. Clark, 291 Or at 242-43.
The court further elaborated the principles announced by Clark in State v. Edmonson, 291 Or at 253-54.
“* * * In Clark, we held that the simple coexistence of the two means of initiating a prosecution, by information with a preliminary hearing or by indictment without one, did not in itself grant to ‘any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens,’ as forbidden by Or Const art I, § 20. The two methods are capable of valid administration, if the ‘terms’ on which one or the other method is used are defensible under the constitutional guarantees of equal treatment. We held that the attack failed ‘[wjithout a showing that the administration of Or Const art VII, § 5 and ORS 135.070-135.185 in fact denied defendant individually, or a class to which he belongs, the equal privilege of a preliminary hearing with other citizens of the state similarly situated.’ State v. Clark, 291 Or at 243. For the same reason, we rejected defendant’s claim under the 14th amendment. In other words, defendant’s constitutional claim requires a showing how the choice of procedure is administered, and whether it offers or denies preliminary hearings to individual defendants, or to social, geographic, or other classes of defendants (apart from the ‘classification’ formed by the choice itself) purely haphazardly or otherwise on terms that have no satisfactory explanation under art I, § 20. See, State v. Clark, 291 Or at 241.”
Hawkins received a strong dissent and was described by the dissenters as “a wholly novel proposition.” Hawkins has since been discredited in every jurisdiction which has considered it, including Oregon (Clark, supra), People v. Franklin, 80 *389Ill App 3d 128, 398 NE2d 1071 (1979); People v. Dist. Court for Second Judicial Dist., 610 P2d 490 (Colo 1980); King v. Venters, 595 SW2d 714 (Kentucky 1980); Commonwealth v. Bestwick, 489 Pa 603, 414 A2d 1373 (1980); State ex rel Rowe v. Ferguson, 268 SE2d 45 (W Va 1980). This substantial weight of judicial authority clearly determined the grand jury and the preliminary hearing are acceptable constitutional substitutes that can coexist without offending equal protection guarantees.
I must further point out that we considered Hawkins in a pre- Clark decision and rejected the California court’s holding at that time. See, State ex rel Automotive Emp. v. Murchison, 289 Or 265, 611 P2d 1169 (1980) (Lent, J., dissenting).
Clark and Edmonson rejected the concept that the denial of a post-indictment preliminary hearing deprives a defendant of equal privileges under Article I, Section 20, of the Oregon Constitution. In my view a defendant is only entitled to a prompt probable cause determination, and I am prepared to say, and the majority does not deny, that the grand jury or an information/preliminary hearing procedure are equally reliable procedures for determining the probability of guilt. Gerstein v. Pugh, 420 US 103, 95 S Ct 854, 43 L Ed 2d 54 (1975). accord People v. Franklin, supra, 80 Ill App 3d at 131.
PROSECUTORIAL DISCRETION
A prosecutor derives authority or power to exercise discretion by law.3
Few courts or legal scholars have applied due process or equal protection (or equal privileges) principles to the preaccusation stage, e.g., the charging decision, of the criminal process.4 The plethora of procedural guarantees, e.g., right to confront witnesses, subpoena power, public and fair trial, do not come into play in the pre-adjudicatory phase of the criminal process.
*390In the instant case we are only concerned with the possible abuse of the prosecutor’s discretion in his selection of the charging method: grand jury indictment or information. This court discussed at great length the dimensions of a prosecuting attorney’s discretion in Watts v. Gerking, 111 Or 654, 228 P 135, 34 ALR 1489 (1924):
“Public policy favors prosecutions for crime, and requires that a person who in good faith and upon reasonable grounds institutes such proceedings upon a criminal charge shall be protected. The presumption of law is therefore that every prosecution for a crime is founded on probable cause and is instituted only for purposes of justice.” 19 Am Eng Ency of Law, 650 (2nd ed). Id. at 656.
“Their [prosecutors’] discretion is limited; but that — as a necessity — they do possess a discretion, is indisputable. In nearly every instance, they alone determine when, how, and who to prosecute or sue in the name of the state.” Id. at 657 quoting Farrar v. Steele, 31 La Ann Rep 640 (Emphasis added).
Citing with approval, the court quoted the Supreme Court of Michigan in Engle v. Chipman, 51 Mich 524, 16 NW 886 (1883):
“The prosecuting attorney is a very responsible officer, selected by the people and vested with personal discretion entrusted to him as a minister of justice, and not as a mere legal attorney. * * * He is expected to be impartial in abstaining from prosecuting as well as in prosecuting, and to guard the real interests of public justice in favor of all concerned. This discretion is official and personal.” Id. at 657.5
The court said in Clark and Edmonson that there are many valid kinds of reasons for proceeding with or without a preliminary hearing if the reasons are consistently applied. I do not disagree.
The majority’s notion that prosecutors should have articulated standards is not novel and was suggested by The *391President’s Commission on Law Enforcement and Administration of Justice in discussing charging discretion.6 It was suggested that standards would cause discretion to be more structured and thus more rational.
“The need for established standards. Standards should pertain to such matters as the circumstances that properly can be considered mitigating or aggravating, or the kinds of offenses that should be most vigorously prosecuted in view of the community’s law enforcement needs.”7
As Professor LaFave aptly put it:
“The issue is not discretion versus no discretion, but rather how discretion should be confined, structured and checked.”8
The 1974 constitutional amendment does not confer absolute power on prosecutors and I reject any premise that “[t]he discretion of the prosecutor * * * has been assumed to be subject to control only through the electorate rather than through a process of rationalization and accountability * * *.”9
“Guided by considerations of justice,” McNabb v. United States, 318 US 332, 341, 63 S Ct 608, 87 L Ed 819 *392(1943), this court may exercise its supervisory powers if a prosecutor acts in the words of the majority “purely haphazardly or otherwise on terms that have no satisfactory explanation,” 295 Or at 374 citing Edmonson, 291 Or at 254. As stated in the recent case of United States v. Hasting, 461 US 499, 103 S Ct 1974, 76 L Ed 2d 96, 104 (1983) (discussing harmless error):
“The purposes underlying use of the supervisory powers are threefold: to implement a remedy for violation of recognized rights, McNabb, supra, 318 US at 340, 87 L Ed 819, 63 S Ct 608; Rea v. United States, 350 US 214, 217, 100 L Ed 233, 76 S Ct 292 (1956); to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury, McNabb, supra, 319 US at 345, 87 L Ed 819, 63 S Ct 608; Elkins v. United States, 364 US 206, 222, 4 L Ed 2d 1669, 80 S Ct 1439 (1960); and finally as a remedy designed to deter illegal conduct, United States v. Payner, 447 US 727, 735-736, n 8, 65 L Ed 2d 468, 100 S Ct 2439 (1980).”
Recognizing the district attorney’s substantial discretionary powers and the supervisory power of this court to review this discretion when allegations of abuse arise, I now turn to the instant case.
FACTUAL CONSIDERATIONS
In this case, the defendant argues that an unequal procedure was used in the district attorney’s charging method which prohibited him from being treated “upon the same terms” as similarly situated defendants. By so claiming, he hopes to leap the factual moat that Clark and Edmonson were unable to bridge. Clark and Edmonson focused their challenge on the coexistence of alternative charging methods seeking support for their argument from Hawkins. This court rejected that argument. “The two methods are capable of valid administration, if the ‘terms’ on which one or the other method is used are defensible under the constitutional guarantees of equal treatment.” State v. Edmonson, 291 Or at 253.
In dicta, the Clark majority suggested that it would be possible to achieve substantially greater equality by the development of uniform policies. Id. at 239-40.
Defendant herein claims the district attorney’s selection of the charging method is the result of “haphazard” or *393“standardless administration.” This, defendant argues, demonstrates the “state’s policies are not being applied neutrally to similarly situated individuals.”10
What the defendant is really criticizing, I believe, is the fact that the prosecutor in this case effectively “mooted”11 the preliminary hearing by seeking a grand jury indictment. This practice is certainly not unique to Oregon, see Buchanan v. State, 561 P2d 1197 (Alaska 1977) (if the prosecutor desires to avoid a preliminary hearing, he could refuse to introduce evidence at the hearing, resulting in a dismissal of the complaint, and then obtain an indictment shortly thereafter).
Professors Kamisar, LaFave and Israel have discussed this practice and find no grounds for condemnation:12
“* * * In most information states, where the prosecutor uses the indictment process, his basic objective is not to avoid the preliminary hearing, but to utilize some other feature of that process. The mooting of the preliminary hearing is simply an incidental by-product of an unrelated objective that required a pre-arrest indictment. But prosecutors in-other information jurisdictions have been known to use the indictment alternative in certain cases mainly because they wanted to avoid the preliminary hearing. Grounds typically advanced for avoiding the hearing in those cases, notwithstanding the prosecutor’s usual preference for prosecution by information, include: (1) the desire to save time where the preliminary hearing would be protracted due to the number of exhibits or witnesses or the number of separate hearings that would have to be held for separate defendants (the grand jury could save time in such situations due to the absence of cross-examination, less stringent application of evidentiary rules, and its capacity to consider a series of related cases in a single presentation); (2) the desire to preclude the defense discovery inherent in a preliminary hearing, particularly where a key witness is an informer whose identity should be shielded until trial; and (3) the desire to limit the number of times that a particular *394complainant (e.g., a victim of a sex offense) will be required to give testimony in public. * * *”
I do not reject the defendant’s contention that preliminary hearings are, or may be, advantageous to an accused. There can be little argument that the defendant has an opportunity, albeit remote, to gain a dismissal of unsubstantiated charges at the preliminary hearing. The defendant also may acquire information about the state’s case and the identity of the witnesses. However, these advantages, if any there be, “are entirely incidental to the purpose” of the preliminary hearing, namely and exclusively the determination of probable cause. Accord, State v. Jefferson, 79 Wash 2d 345, 349, 485 P2d 77 (1971).
The defendant’s main contention is that the prosecutor’s decision to proceed by indictment violated equal protection principles because he was denied individually (as opposed to a member of a protected class), the equal “privilege” of a preliminary hearing that other similarly situated defendants enjoyed.
The guarantee of “equal protection of the laws is a pledge of the protection of equal laws.” Yick Wo v. Hopkins, 118 US 356, 369, 6 S Ct 1064, 30 L Ed 220 (1886). “When the law lays an unequal hand on those who have committed intrinsically the same quality of offense * * * it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.” Skinner v. Oklahoma, 316 US 535, 541, 62 S Ct 1110, 86 L Ed 1655 (1942).
In the present case, the record is devoid of evidence to indicate that the prosecutor selected the defendant for indictment on the basis of some discriminatory motive such as race, religion or other arbitrary classification. The record indicates a proper exercise of discretion. See, Oyler v. Boles, 368 US 448, 82 S Ct 501, 7 L Ed 2d 446 (1962) (“the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation”).
STANDARDS
The court is faced with the inquiry whether a prosecuting attorney is required to articulate standards for his *395selection of the charging method. I have found no state which has placed this burden on its prosecutors.13
*396When confronted with fact questions similar to the present case other jurisdictions have hot required articulated standards as a remedy for any possible abuses. See, Hyler v. Sheriff of Clark Cty., 93 Nev 561, 571 P2d 114 (1977) (the institution of grand jury process, during pendency of criminal complaint, did not constitute abuse of prosecutor power * * * absent evidence indicating that grand jury proceedings had been instituted merely to deprive defendant meaningful access to a witness); State v. Burk, 82 NM 466, 483 P2d 940 (1971) (after a preliminary hearing had been scheduled, prosecutor obtained an indictment; while prosecutor was zealous, he did not exceed the “bounds of propriety.” “The choice was not the defendant’s * * *. Defendant was attempting to force the prosecutor to a preliminary hearing against the prosecutor’s wishes. The fact that the prosecutor may have maneuvered zealously to preserve the choice, which was his to exercise, does not show that he exceeded the bounds of propriety,” Id. at 941.) People v. Kuelper, 46 Ill App 3d 420, 361 NE2d 29 (1977) (prosecutor avoided a preliminary hearing by obtaining an indictment and then refused a court order to participate in the preliminary hearing. Holding that a preliminary hearing would serve no legitimate purpose since probable cause had already been established by the grand jury the court found that the prosecutor was within his rights to refuse to participate).14
I fail to find evidence to support the defendant’s contention that he was singled out, not dealt with on substantially the “same terms” as others similarly situated or was the victim of a “haphazardly” arrived at ad hoc decision or any other form of discrimination on the part of the prosecutor. On the contrary, the witnesses for the state explained in some detail the manner upon which the prosecutor’s discretion was exercised. The Court of Appeals reversed the trial court because it concluded that we require a motive for improper discrimination. I do not believe this to be true. What should be required is prosecutorial conduct which has a discriminatory result regardless of motive. We should require proof that the defendant was singled out for selective and discriminatory treatment on the basis of activities which form an unjustified standard for *397selectivity * * United States v. Falk, 479 F2d 616, 622 (7th Cir 1973).
As Professor LaFave points out when discussing charging decisions:
“A defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.”15
A fair reading of the record in this case fails to disclose any evidence that the defendant was denied “equal privileges” under Oregon’s constitution or equal protection under the federal constitution.
I would affirm the Court of Appeals.
See Case Note: Criminal Procedures - Grand Jury - Constitutional Law - Equal Protection - Due Process - Prosecutor’s Duty to Expose Exculpatory Evidence to the Grand Jury, 27 Case W Res L Rev 580, n 54 (1977).
Case Comments, Constitutional Law - Equal Protection - Prosecution by Indictment Violates California Equal Protection Clause by Denying Accused Opportunity for Preliminary Hearing - Hawkins v. Superior Court, 22 Cal 3d 584, 586 P2d 916 (1978), 13 Suffolk U L Rev 1482 (1979).
See generally W. LaFave, The Prosecutor’s Discretion in the United States, 18 Am J Comp L 532 (1970).
See Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75 Harv L Rev 904 (1962).
In Michigan the issuance of an indictment is followed by a preliminary hearing at which the magistrate makes his own independent determination of probable cause. See, People v. Duncan, 388 Mich 489, 201 NW2d 629 (1972).
Among the American Bar Association’s recommended standards for the prosecutor’s function are:
“(d) The prosecutor should not seek a continuance solely for the purpose of mooting the preliminary hearing by securing an indictment.” Standard 3.3.10(d).
and
“(a) Each prosecutor’s office should develop a statement of:
(i) general policies to guide the exercise of prosecutorial discretion, and
(ii) procedures of the office.
“The objectives of these policies as to discretion and procedures should be to achieve a fair, efficient enforcement of the criminal law.
“(b) In the interest of continuity and clarity, such statement of policies and procedures should be maintained in an office handbook. This handbook should be available to the public, except for subject matters declared ‘confidential,’ when it is reasonably believed that public access to their contents would adversely affect the prosecution function.” Standard 3-2.5.
The President’s Commission on Law Enforcement and Adminsitration of Justice, The Challenge of Crime in a Free Society, 33-34 (1967).
W. LaFave, The Prosecutor’s Discretion in the United States, 18 Am J Comp L 532, 536 (1971).
Remington and Rosenblum, The Criminal Law and the Legislative Process, 1960 U Ill L Forum 481,497.
See Comment, Prosecutorial Discretion in the Initiation of Criminal Complaint, 42 S Cal L Rev 519,545 (1969).
See, Preliminary Hearings in Homicide Cases: A Hearing Delayed is a Hearing Denied, 62 J Crim L C & P S, 17 (1971).
Y. Kamisar, W. LaFave, J. Israel, Modern Criminal Procedure, 981 (5th Ed 1980).
See footnote 5, supra; see also Multnomah County Policy Manual, 3.15 (March 1982):
“Grand Jury/Preliminary Hearing
“Amended Article VII §5 of the Oregon Constitution provides two separate procedures for charging defendants in Circuit Court. Amended Article VII provides that defendants may be charged either through indictment by the Grand Jury or by Information of District Attorney after Preliminary Hearing. The decision to present a case to the Grand Jury or to a Preliminary Hearing judge is expected to be made by the issuing deputy on a case-by-case basis. It is expected that the issuing deputy will consider the following factors when deciding which procedure to pursue:
A. Privacy needs of the victim, especially in instances of Sodomy, Rape or Child Abuse;
B. Whether the defendant has been arrested. For non-custody cases, direct presentation to Grand Jury is appropriate;
C. Need to protect complex investigation from premature disclosure, i.e., sting operations;
D. Need for speedy trial. Use of Grand Jury eliminates several days of delay between arrest and trial. This permits swift prosecution of career criminals.
E. Complexity of the case. The Grand Jury schedule is more flexible than the district court docket and allows for better presentation. For this reason, homicides, serious assaults and similarly complex cases should be presented to the Grand Jury.
F. Need to compel testimony in complex investigations. The Grand Jury can be convened over lengthy periods;
G. Need to use affidavits of seriously injured or unavailable victims under ORS 132.320(3);
H. Need to use certificate evidence to accommodate experts under ORS 132.320(2);
I. Convenience of victims and the need to accommodate witnesses’ schedules;
J. Whether the defendant is out of the state and extradition is expected. Indictment by Grand Jury is normally appropriate in extradition cases to avoid legal complications which alternative charging instruments may risk;
K. Need to have citizen input in issuing decisions. It may be important to see citizen reaction (as opposed to lawyer or judicial reaction) in the Grand Jury before deciding merits of case.
“This policy is intended to provide guidance in deciding which constitutional charging vehicle to use. The list is not intended to be all-inclusive.”
(These guidelines were put in written form ex-post facto.)
These cases dealt with fair trial issues, but the principle involved remains the same.
Y. Kamisar, W. LaFave, J. Israel, Modern Criminal Procedure, 943 (5th Ed 1980), quoting United States v. Berrios, 501 F2d 1207 (2d Cir 1974).