dissenting:
I respectfully dissent. In accordance with the majority of the federal circuits that have addressed the issue, I would hold that pre-indictment delay does not violate the Fifth Amendment’s due process clause unless a defendant can show both actual prejudice and that the State has intentionally delayed the issuance of an indictment in order to gain an unfair tactical advantage. See Jones v. Angelone, 94 F.3d 900, 905 (4th Cir.1996) (recognizing that this test applies in every federal circuit save the Fourth and the Ninth).
But leaving this aside, I disagree with the majority’s analysis of how the facts presented here interact with the majority’s interpretation of this Court’s decision in State v. Brazell, 325 S.C. 65, 480 S.E.2d 64 (1997). In contrast to the specific showing of prejudice Brazell purports to require, there is no specific showing of prejudice in the instant case. See id. at 73, 480 S.E.2d at 69 (providing that when the claimed prejudice is caused by the unavailability of a witness, courts require that the defendant identify the witness he would have called; demonstrate, with specificity, the expected testimony; establish that the defendant made serious attempts to locate the witness; and show that the information the witness would have provided was not available from another source). Although the court below broadly asserted that “[n]o records *402contemporaneous with the alleged offenses are available ... [and Appellant’s] efforts to acquire the same information from other sources were likewise unavailing,” State v. Lee, 360 S.C. 530, 538, 602 S.E.2d 113, 117-18 (2004), the record in this case reveals only that Appellant’s attorney tried (unsuccessfully) to subpoena documents from the Department of Social Services, and that the persons the attorney sought to interview did not recall these specific incidents. In my view, this is a showing totally devoid of specificity.
The record does not contain any evidence of an attempt to view the family court’s file regarding the prior incidents. Furthermore, there is no evidence demonstrating that other purportedly sought evidence, such as the alleged victims’ school records, could not be obtained from alternate sources; nor is there evidence that the information purportedly contained in school records or in the minds of potential witnesses could not be obtained through interviewing other family members or acquaintances. Finally, there is no specific assertion as to how any of this information would be beneficial to Appellant. No Court may justifiably ask a litigant to prove a negative — that is to say, no Court may ask a party to specifically establish the contents of a document that the party has never seen or the substance of testimony a party has never heard — but Appellant’s arguments are, at bottom, utter speculation regarding the possible content of documents that may never have even existed. In my view, Brazell requires substantially more in the way of specificity.
As a final aside, I would dismiss the lower court’s assertion that the State offered no substantial reason for the preindictment delay as completely out of place given this case’s posture. Id. at 539, 602 S.E.2d at 118. At trial, the court adopted the State’s position that the court could not find a due process violation absent a showing that the State intentionally delayed the issuance of an indictment in order to gain an unfair tactical advantage. Thus, at trial, there was no need for the State to offer any justification for the delay whatsoever. We ought not ask the parties to make any kind of an evidentiary showing in this Court that they did not make below. If Brazell requires reversal of the trial court’s decision *403because the court applied the wrong legal standard, we ought to remand to the trial court for application of the correct one.
For the foregoing reasons, I respectfully dissent.
Acting Justice E.C. BURNETT, III, concurs.