witnesses may become unavailable and/or their memories fade; if the witnesses were for the prosecution the case may be seriously weakened (as the prosecution has the burden to prove the defendant guilty beyond a reasonable doubt). Finally, the Court noted that the concept is more vague than with other rights, in that the Court "cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate." The Court then noted that there were two competing approaches as to how to handle the uncertainty regarding "how long is too long"; neither of which it accepted: One approach (supported by the American Bar Association) was to "hold that the Constitution requires a criminal defendant to be offered a trial within a specified time period." The Court rejected this approach, stating that there was "no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months." The other approach was to "restrict consideration of the right to those cases in which the accused has demanded a speedy trial." In other words, if the defendant did not specifically demand a trial, the defendant waived his/her right to appeal the matter. The Court also rejected this approach, as it considered a speedy trial to be a fundamental right, and quoting Carnley v. Cochran the Court ruled that "[p]resuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandably rejected the offer. Anything less is not waiver." As a balancing test, the Court adopted four factors to be considered in determining, on a case-by-case basis, whether a defendant has been prejudiced by the lack of a speedy trial: the length of delay, the reason for the delay, the time and manner in which the defendant has asserted his right, and the degree of prejudice to the defendant which the delay has caused. Taking these factors into consideration, though, Barker's conviction was upheld. The court agreed that the period of time between initial arrest and trial – over five years – was "extraordinary" and that only seven months of the delay was justifiable (the period of the ex-sheriff's illness). However, the Court also ruled that Barker was not prejudiced by the delay, since none of Barker's witnesses were harmed