97-261

 No. 97-261

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1998 MT 121

 STATE OF MONTANA,

 Plaintiff and Respondent,

 v.

 EDWIN A. TAYLOR,

 Defendant and Appellant.

 APPEAL FROM: District Court of the Eighteenth Judicial District,

 In and for the County of Gallatin,

 The Honorable Frank Davis, Judge presiding.

 COUNSEL OF RECORD:

 For Appellant:

 Bernard J. "Ben" Everett; Knight, Dahood, McLean & Everett;

 Anaconda, Montana

 For Respondent:

 Hon. Joseph P. Mazurek, Attorney General; John Paulson, 

 Assistant Attorney General; Helena, Montana

 Marty Lambert, Gallatin County Attorney; Elizabeth Horsman-Wiitala,

 Barbara C. Harris, and Kathy Seeley, Assistant Attorneys

 General and Special Deputy County Attorneys; Bozeman, Montana

 Submitted on Briefs: March 19, 1998

 Decided: May 8, 1998

 Filed:

 __________________________________________

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 Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1 The defendant, Edwin A. Taylor, was charged by information in the

District Court for the Eighteenth Judicial District in Gallatin County with three

counts of felony theft based on workers' compensation claims that he had filed. 

Taylor moved to dismiss the information for unconstitutional pre-indictment

delay. The District Court denied that motion. Taylor pled guilty to one count

of theft and now appeals the denial of his motion to dismiss. We reverse the

order and judgment of the District Court. 

¶2 The sole issue on appeal is whether pre-indictment delay violated

Taylor's constitutional right to due process.

 FACTUAL BACKGROUND

¶3 Edwin A. Taylor was employed by the Montana Highway Department

in 1990. On March 30, 1990, Taylor reported to the State Fund a work-related

injury that he alleged had occurred on February 26, 1990. The State Fund

accepted liability and paid Taylor $5,591.64 for disability benefits and

$17,161.70 for medical benefits. Taylor had surgery on his neck in July, but

returned to work in September 1990. His treating surgeon was Dr. James

Johnson.

¶4 Taylor claimed that a second work-related injury occurred on

November 15, 1990. He received $274.47 for medical expenses related to that

claim. Finally, Taylor claimed that a third work-related injury occurred on

March 4, 1991. The State Fund paid approximately $36,000.00 for disability

benefits and $18,000.00 for medical expenses related to that claim. Although

Taylor had not returned to work, the State Fund terminated Taylor's benefits

in April 1994.

¶5 In May 1991, the State Fund began an investigation into Taylor's claims

after it received reports that they were fraudulent. In August of that year, the

State Fund referred the matter to the Department of Justice, Criminal

Investigation Bureau, for further investigation. The State contends that the

CIB referred the investigation to the Gallatin County Attorney on April 22,

1992. Taylor contends that the decision to refer the case to the Gallatin

County Attorney was made on January 31, 1992. 

¶6 After the County Attorney's office reviewed the matter, it contacted the

CIB agent, Brian Costigan, on September 8, 1992, to request that he conduct

further investigation. The County Attorney's office received Costigan's report

on approximately October 6, 1992. In April 1993, Deputy County Attorney

Jane Mersen was appointed to prosecute the case, although she was on

maternity leave from May until July of that year. Mersen contacted Costigan

again in October 1993, to request further investigation. Shortly thereafter, the

County Attorney hired Assistant Attorney General Elizabeth Horsman-Wiitala

to prosecute this case, and she was appointed special counsel for that purpose

on December 13, 1993. 

¶7 The State Fund remained in frequent contact with the County Attorney's

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office about its progress in the matter, since it continued to pay Taylor's

benefits and apparently deferred its investigation of his claims in favor of the

investigation by the County Attorney's office. In addition, Taylor and his

attorney were in contact with the County Attorney's office and other

investigators to facilitate resolution of the matter. On January 13, 1994,

Taylor's counsel wrote Horsman-Wiitala about, among other things, the effect

of the delay on Taylor, their past and ongoing desire to cooperate in the

investigation, and the perceived violation of his client's constitutional rights. 

¶8 On March 9, 1994, Horsman-Wiitala filed a motion for leave to file

information in the District Court, and a week later filed an information

charging Taylor with three felony counts of theft, pursuant to §§ 45-6-301(5)(b)

and -301(7), MCA. In the charging documents, it was alleged that

Taylor fraudulently received workers' compensation benefits in the amount of

$74,526.59 for the three claims. Taylor appeared on May 11, 1994, and pled

not guilty. 

¶9 After the information was filed, the State Fund terminated Taylor's

benefits and began proceedings against Taylor in the Workers' Compensation

Court. Taylor filed a response in the Workers' Compensation Court and

sought reinstatement of his benefits; the Workers' Compensation Court

consolidated the claims and set a trial date.

¶10 On August 19, 1994, Taylor moved the District Court to dismiss the

information based on a lack of jurisdiction, or in the alternative to stay the

District Court proceedings until the Workers' Compensation Court made its

determination. He also moved the District Court to dismiss the information

based on alleged denial of due process from the length of pre-indictment delay. 

Taylor alleged that the County Attorney's office "inexcusably procrastinated"

in bringing the charges, and that he had suffered severe prejudice, both

psychologically and to his defense, due to the impairment of witnesses'

memories. The State, in response, contended that the delay was not intentional

or for tactical advantage and that Taylor's allegations of prejudice were

insufficient for dismissal. After oral argument, the District Court, on October

24, 1994, denied the motion to dismiss and reserved its ruling on the motion

to stay. The order stated that there was no showing of actual or substantial

prejudice, and that the State had gained no tactical advantage from the

considerable, albeit "excusable" delay.

¶11 The District Court reserved its decision to stay because at the time, the

Workers' Compensation Court trial was expected to be completed by the date

set for trial in the District Court. As it stated in another pre-trial decision, "a

resolution of that cause could very well make the criminal matter moot." After

a number of delays (which necessitated corresponding delays in the District

Court), the trial in the Workers' Compensation Court was finally held on

February 23 and 24, 1995.

¶12 On August 21, 1995, the Workers' Compensation Court held that the

November 15, 1990, and March 4, 1991, claims of injury were fraudulent, and

entered judgment in the amount of $55,362.85 against Taylor. It found a

suspicion of fraud regarding the February 26, 1990, injury, but found that there

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was insufficient evidence to conclude that the claim was fraudulent. Taylor

eventually appealed the Workers' Compensation Court judgment to this Court,

and we affirmed the Workers' Compensation Court. See Taylor v. State

Compensation Ins. Fund (1996), 275 Mont. 432, 913 P.2d 1242. On August

28, 1995, the District Court set March 25, 1996, as the trial date.

¶13 On January 24, 1996, Taylor moved the District Court to reconsider its

previous denial of his motion to dismiss based on pre-indictment delay. His

motion was based on the fact that at the time that he filed the first motion,

Taylor was unaware that two key witnesses had died during the period of preindictment

delay. He stated that his primary physician after the February 26,

1990, injury, Dr. James Johnson, had died on October 24, 1993, and that the

psychologist, Dr. Richard Traynham, who had examined Taylor at the request

of the State Fund, and concluded that he suffered depression as a result of his

work-related injuries, had died on April 15, 1993. The motion explained

briefly the nature of the testimony they would have given and its importance

to Taylor's case. Their testimony had not been preserved prior to their deaths.

¶14 The State's response alleged that Taylor's motion was untimely, that

Taylor should have discovered Johnson's death sooner than he did if the

testimony was in fact critical to his defense, and that Taylor had initiated

post-indictment delay which rendered disingenuous his claim of pre-indictment

delay.

¶15 On February 14, 1996, the District Court denied the motion to

reconsider without explanation, and based on its earlier reasoning in response

to Taylor's motion to stay, it also granted a motion from Taylor to continue the

trial date until this Court could issue its decision in the appeal from the

Workers' Compensation Court decision. A month later and after this Court

affirmed the judgment of the Workers' Compensation Court, the district court

trial was set for July 22, 1996. The trial was continued several times until,

finally, on February 6, 1997, Taylor entered a guilty plea to Count III

regarding the March 4, 1991, injury and Counts I and II were dismissed. The

District Court deferred imposition of sentence for three years and placed

Taylor on probation, subject to his compliance with the order from the

Workers' Compensation Court and his performance of community service,

among other conditions. The plea agreement reserved Taylor's right to appeal

the denial of his motions to dismiss for pre-indictment delay.

 DISCUSSION

¶16 Did pre-indictment delay violate Taylor's constitutional right to due

process?

¶17 The State suggests that we should review a district court decision to

grant or deny a motion to dismiss for pre-indictment delay for abuse of

discretion. Taylor, on the other hand, contends that the district court's decision

constitutes a question of law for which this Court's review is plenary. We

have not expressly set forth our standard of review for decisions regarding preindictment

delay.

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¶18 We recognize that the question of post-indictment delay or whether a

defendant's right to speedy trial has been violated is a question of

constitutional law which requires that we review a district court's decision to

determine if it is correct. See State v. Small (1996), 279 Mont. 113, 116, 926

P.2d 1376, 1378; State v. Cassidy (1978), 176 Mont. 385, 388, 578 P.2d 735,

737. A speedy trial analysis, which focuses on post-indictment delay, involves

an inquiry similar to that which we engage in for pre-indictment delay. 

Therefore, we conclude that we should also review a district court's decision

regarding a pre-indictment delay as a question of constitutional law.

¶19 We review a district court's conclusions of law to determine whether its

interpretation of the law is correct. See Carbon County v. Union Reserve Coal

Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; see also Kreger v.

Francis (1995), 271 Mont. 444, 447, 898 P.2d 672, 674; Steer, Inc. v.

Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04. 

¶20 We held in State v. Krinitt (1991), 251 Mont. 28, 823 P.2d 848, that our

consideration of a defendant's claim that pre-indictment delay has violated his

right to due process pursuant to the Fifth and Fourteenth Amendments of the

United States Constitution involves a two-step process. First, the defendant

has the burden to show that he has suffered actual and substantial prejudice

from the delay. Then, if he has shown sufficient prejudice, we must weigh the

reasons for the delay offered by the State, as well as the length of the delay,

to determine whether the defendant's rights have been denied. Throughout our

analysis, we should be guided by the principle that a pre-indictment delay will

lead to a violation of a defendant's due process rights if it can be said that

requiring the defendant to stand trial "violates those fundamental conceptions

of justice which lie at the base of our civil and political institutions and which

define the community's sense of fair play and decency." Krinitt, 251 Mont. at

35, 823 P.2d at 852 (quoting United States v. Lovasco (1977), 431 U.S. 783,

790, 97 S. Ct. 2044, 2049, 52 L. Ed. 2d 752, 759). 

¶21 The State contends that Taylor was not prejudiced by the delay because

the death of the two doctors did not prevent him from establishing the essential

aspects of his defense and that their testimony would not have been very

helpful to his defense. It is difficult to assess prejudice when a defendant has

pled guilty and there has been no trial. However, the findings of the Workers'

Compensation Court are of some assistance.

¶22 The majority of the Workers' Compensation Court's findings address

Taylor's claim that he was injured on March 4, 1991. The State contended,

and the Workers' Compensation Court found, that Taylor was not injured on

that date and, therefore, that his claim was fraudulent. Taylor contends that

Dr. Johnson's and Dr. Traynham's testimony would have helped prove the

March injury. 

¶23 Johnson had operated on Taylor after the February 1990 injury. He

also treated Taylor in August 1991 for complaints which Taylor related to a

March 4, 1991, accident. Taylor contends, and we agree, that Johnson's

knowledge of Taylor's condition before and after the claimed injury, and his

understanding of the effect of the trauma reported, would have allowed him

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to express an opinion whether Taylor's physical condition after March 1991,

and the symptoms that Taylor reported were related to the incident and injury

that he claimed. Dr. Traynham previously expressed the opinion that Taylor's

depression was related.

¶24 The mere loss of a potential witness does not constitute actual and

substantial prejudice sufficient to implicate a defendant's due process rights. 

In addition, we recognize that a defendant's bare speculation that a lost

witness's testimony would have been exculpatory is insufficient to prove actual

prejudice. See State v. Goltz (1982), 197 Mont. 361, 367, 642 P.2d 1079,

1082.

¶25 Here, however, Dr. Johnson's ability to discuss the mechanics of the

incident which Taylor claimed occurred on March 4, 1991, in the context of

Taylor's overall history and symptoms was obviously important to Taylor's

defense. We reject the notion that because Taylor is unable to give specific

details of that testimony, we are precluded from concluding that its loss was

prejudicial. Dr. Johnson died before the information was even filed; there is

no obligation for a potential defendant to obtain and develop the testimony of

witnesses who eventually may become important if charges are someday filed. 

The value of Dr. Traynham's opinion is obvious.

¶26 Moreover, we also recognize that, at least in the Workers'

Compensation Court, Taylor's credibility was questioned. That court's

conclusion about his lack of credibility was critical to its decision. Any

evidence which would have corroborated his version of the events, even if

only by confirming that the event he described was consistent with the type of

injury he claimed, was critical to his defense. The missing testimony takes on

added significance when we consider the greater burden of proof imposed on

the State in the criminal proceeding compared to the State Fund's burden in the

Workers' Compensation Court. The delay here led to the loss of two

potentially credible and persuasive witnesses who, in the view of a jury, may

have exculpated Taylor, or at least corroborated his testimony sufficiently to

support acquittal. 

¶27 We conclude that the doctors were two key witnesses and that without

their testimony, Taylor was actually and substantially prejudiced in his ability

to defend himself.

¶28 Our analysis of the State's reasons for the delay further persuades us

that the delay constituted a violation of Taylor's due process rights.

¶29 The State suggests that whatever prejudice Taylor has shown is

insignificant to the more important necessity of allowing the State reasonable

time to investigate the crime. We agree that the criminal justice system and

the State should put a premium on conscientious investigation. We disagree,

however, with the State's implicit suggestion that the delay in this case was a

necessary function of its conscientious investigation. 

¶30 The only justification that the State offers for an approximately two-year delay

is its statement that the Workers' Compensation Court's findings

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"show that the medical evidence was voluminous and complex." We are

unpersuaded by these vague assertions in view of the lengthy periods of

inactivity that resulted after the case was referred to the County Attorney's

office. For example, over four months passed from the time that the County

Attorney's office was referred the case in April 1992, to the time that it

requested further investigation in September 1992. Approximately six months

passed from when the County Attorney's office received its first investigative

report in October 1992, to the time that it appointed Mersen to prosecute the

case in April 1993. Another two months passed while Mersen was on

maternity leave, and then at least two additional months passed before a

second request for investigation was made in October 1993.

¶31 The County Attorney's office was well aware of the State Fund's

interest in the case, since the State Fund investigator contacted the office

numerous times to offer assistance and to request updates on the case. The

State Fund relied, in large part, on the State to determine the viability of

Taylor's claims, and so long as the State neglected the matter, the State Fund

was forced to continue to pay Taylor's benefits, despite its suspicions. Those

frequent inquiries, however, appear to have done little to stimulate prosecution

or investigation of the case. 

¶32 Counsel for Taylor also contacted the County Attorney's office on a

number of occasions to offer his and his client's cooperation in the matter. In

a letter dated June 10, 1993, Taylor's counsel expressed his client's frustration

with the delay and clearly put the County Attorney's office on notice that the

delay was having a detrimental effect on his client's well-being, not to mention

his potential defense. Despite these attempts by all the other parties involved

with the case, the County Attorney's office waited until March 1994, to charge

Taylor. 

¶33 The State has provided no satisfactory explanation for the overall delay,

nor has it explained how the specific periods of virtual inactivity described

above comport with a conscientious and reasonable investigation. Most

importantly, beyond its cursory reference to the medical evidence in this case,

the State has failed to suggest any reasons why this case required nearly two

years of investigation. In the past, we have held that the complexity of the

evidence in a case, without any more explanation from the State, may suffice

to explain the pre-indictment delay. See State v. Curtis (1990), 241 Mont.

288, 298-99, 787 P.2d 306, 312-13 (422-day delay in a bank theft charge). 

That is not the situation here, given the length of delay and the fact that

significant investigation had already been done by the time that the County

Attorney's office was referred the case.

¶34 We acknowledge that prosecutors have no duty to file charges as soon

as possible, and that reasonable pre-indictment delays ultimately protect both

the State and the defendant. See Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52 L.

Ed. 2d 752. However, in light of the loss of potential testimony described

above, the length of delay, and the lack of any justification for the delay in this

case, we conclude that this pre-indictment delay was unreasonable and,

therefore, that Taylor's constitutional right to due process was violated.

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¶35 We reverse the judgment of the District Court and dismiss the

information that is the subject of this appeal.

 /S/ TERRY N. TRIEWEILER

We Concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER 

/S/ WILLIAM E. HUNT, SR.

Justice W. William Leaphart, specially concurring.

¶36 I concur in the result reached by the Court but not in everything that is

said in the Court's opinion. In particular, I think that the Court overstates the

obviousness of the value of the two doctors' opinions. The underlying issue

in this case is whether or not Taylor was guilty of defrauding the State Fund

by claiming that he was injured on the job, March 4, 1991, while picking up

safety cones. According to other witnesses, Taylor gave other inconsistent

explanations of the injury, e.g., that he was operating a jack hammer or that he

slipped on some road oil. Although Dr. Johnson treated Taylor for his injuries

and Dr. Traynham for his depression, neither doctor was a witness to the

actual incident and thus neither could testify as to whether he was injured in

the manner claimed or even injured on the job. As is typical in doctor-patient

relationships, their information as to how the incident occurred was obtained

second hand through Taylor whose credibility is the issue at hand. 

Nonetheless, as a treating physician, Dr. Johnson could at least have given an

opinion as to whether the physical injuries he treated were consistent with the

mechanics of the unwitnessed incident which Taylor claimed occurred. I

agree that, to the extent Dr. Johnson's opinion could have corroborated

Taylor's version of the events, it was important to his defense.

¶37 Dr. Traynham was a psychologist who had examined Taylor at the

request of the State Fund and rendered an opinion that Taylor's depression "is

a function of both the underlying personality pattern and the work place

stresses and injuries the claimant experienced. . . ." His opinion that the

depression was related to the work place injuries assumes, of course, that

Taylor was credible when he said he suffered the injuries in the work place. 

Dr. Traynham was not in a position to state whether the injuries actually

occurred or were, in fact, work related. Unlike Dr. Johnson, he did have the

benefit of objective findings with which he could corroborate Taylor's

credibility. In my view, the value of Dr. Traynham's opinion was less than

"obvious," it was negligible.

¶38 Nonetheless, since this case involved a criminal charge of fraud,

Taylor's credibility was pivotal. Dr. Johnson could have indirectly bolstered

Taylor's credibility and thus Taylor was prejudiced by his unavailability. For

that reason, I concur in the result reached by the Court. 

 /S/ W. WILLIAM LEAPHART

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