State argues that Brazell did not adopt the Fourth Circuit test because the Brazell court declined to consider the second part of the test after Brazell failed to establish substantial actual prejudice. We disagree. Although Brazell did not specifically acknowledge the adoption of the Fourth Circuit rule, the Court clearly adopted the Fourth Circuit’s test for pre-indictment delay by citing Howell and Automated Med. Laboratories when it discussed the two-part inquiry. Regardless, we find the Fourth Circuit standard to be the better rule. Requiring a higher burden of proof in proving improper motives on the part of the prosecution would put an almost impossible burden on defendants to maintain a Fifth Amendment due process claim in pre-indictment delay cases. See Howell, supra at 895 (<HOLDING>). Accordingly, the second part of the due
holding that physician is not required to identify and disclose every chance no matter how remote of the occurrence of every possible birth defect no matter how insignificant holding that the preindictment delay was a due process violation because actual prejudice was shown and the state had shown absolutely no need for any investigative delay holding no prejudice occurred because no new information was presented on the material matter in dispute holding that first amendment provides no protection against private actions no matter how egregious holding that to require proof of prosecutorial bad faith would mean that no matter how egregious the prejudice to a defendant and no matter how long the preindictment delay if a defendant cannot prove improper prosecutorial motive then no due process violation has occurred and that this conclusion on its face would violate fundamental conceptions of justice as well as the communitys sense of fair play