Speedy Trial
Among the rights enumerated in the Sixth Amendment is the right to a speedy trial.
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Though the right to a speedy trial has been deemed “fundamental,” [1] it has also been described as “amorphous” and “slippery. [2] One of the reasons the speedy trial right is perceived as one of the more elusive constitutional protections is because it serves interests beyond those of the accused. Indeed there is a, “societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.” [3] Specifically, the right to a speedy trial serves a societal interest in the fair and efficient operation of the criminal justice system and in limiting the costs to the community of pretrial detention and its deleterious effects. [4]
Nevertheless, speedy trial rights are generally designed to protect the accused from: 1) oppressive pretrial incarceration, 2) anxiety and concern accompanying public accusation, and 3) impairment to the accused’s defense. [5] Speedy trial also exists to, “limit the possibility that memories will fade, witnesses disappear, and needless delay impair an accused's ability to defend himself.” [6] It may also be implicated in forfeitures. [7]
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Speedy trial in a nutshell
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Barker v. Wingo
The seminal case in speedy trial jurisprudence is Barker v. Wingo, 407 U.S. 514 (1972). On July 20, 1958, intruders beat an elderly couple to death in Christian County, Kentucky. Shortly afterward, police arrested Silas Manning and Willie Barker for the crime. Both were indicted on September 15 and assigned counsel on September 17. Barker’s trial was scheduled to begin on September 21, but the state believed it had a stronger case against Manning and that Manning’s testimony would be essential to convict Barker. The state obtained a series of continuances on Barker’s trial, as Manning was tried five times and finally convicted in 1962. Beginning in June 1959, Barker was out of prison on bail, and did not contest the continuances. Barker’s trial was set for March 19, 1963, and when the state requested further continuances, Barker unsuccessfully objected. At his trial beginning on October 9, 1963, Barker was convicted.
The Kentucky Court of Appeals affirmed the conviction. Barker sought habeas corpus relief in district court, by arguing that the long trial delay violated his right to a speedy trial, which the district court denied. The Court of Appeals for the Sixth Circuit affirmed the judgment of the district court.
The Supreme Court granted certiorari and the Court explained the difference between speedy trial and the other Constitutional rights. First, the Court argued that there is a societal interest in providing a speedy trial which is separate from, and sometimes conflicts with, the interests of the accused. [8] Societal concerns include: the backlog of cases in many urban courts which enable defendants to negotiate pleas to lesser offenses; accused persons released on bond for extended lengths of time (thus having opportunities to commit more offenses); the temptation to jump bail; a detrimental effect on offender rehabilitation; the dangers of overcrowding in jails; and, with regards to persons who could not make bail, economic concerns including the cost of holding people for a lengthy time, as well as lost wages for those who may have been arrested. [9]
Second, the Court stated that deprivation of the right to a speedy trial may benefit the accused. Powell asserted that delay is a common defense tactic and that, as time passes, the memories of witnesses may fade or a witness may become unavailable. Because the burden of proof lies with the prosecution, delay could weaken the prosecution if it was their witness whose memory was faulty or who was unavailable. Finally, the court noted that the right to a speedy trial is more vague than other procedural rights. He wrote that it is “impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate.” Additionally, he reiterated that “[t]he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.” [10]
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Barker Balancing Test After rejecting a bright-line rule as to what a speedy trial is, the Supreme Court distilled a four-part balancing test to be used in determining whether a defendant’s constitutional right to a speedy trial has been violated. If these factors ultimately weigh against the government, there is a “presumption of prejudice” and the accused is not charged with showing actual prejudice. (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertions of the speedy trial right; and (4) the prejudice stemming from the delay. |
1) Length of delay: The first Barker factor is considered “a triggering mechanism” or threshold inquiry wherein a defendant must first allege a delay between accusation and trial and further, that the interval between accusation and trial “has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay…” [11] “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” [12] Though not a determinative factor, courts have indicated that a post-accusation delay of one year or more is presumptively prejudicial. [13] Whether a delay is presumptively prejudicial “is necessarily dependent upon the peculiar circumstances of the case.” [14]
“If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” [15] “There is no bright-line time limit dividing the lengths that trigger further Barker inquiry from those that do not. Whether a particular delay will warrant further speedy trial scrutiny ‘is necessarily dependent upon the peculiar circumstances of the case.’” [16] However, “[d]elay of around one year is considered presumptively prejudicial, and the presumption that delay prejudices the defendant ‘intensifies over time.” [17]
Courts assessing Sixth Amendment speedy trial claims have generally deemed delays that have extended over several years weigh heavily in the defendant’s favor in the Barker balancing analysis. [18] When a defendant establishes a particularly substantial delay, “the burden is upon the government to prove that the delay was justified and that [the defendant’s] speedy trial rights were not violated.” [19]
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NOTE Prejudice for speedy trial purposes need not extend to a year as misdemeanors and other less complex cases can be resolved in less than a year. Courts may look to the complexity of the case. [20] “Delay for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” [21] |
2) Reason for delay: In weighing the reason for the delay a court asks, “whether the government or the criminal defendant is more to blame for th[e] delay.” [22] The second factor that must be analyzed is the “the reason the government assigns to justify the delay.” [23] “Different weights are to be assigned to different causes.” [24] “Deliberate attempts to delay trial are heavily weighted against the government, while neutral causes, including negligence and overcrowded courts, should be weighed less heavily against the government.” [25] “Valid reasons, such as missing witnesses, should be considered as justifying an appropriate delay.” [26] Intentional delay weighs heavily against the Government. Governmental negligence is on the wrong side of the line but does not weigh heavily against the Government. [27]
Delay Caused by Government
Delays that can be attributed to the government, such as those due to prosecutorial negligence. United States v. Shell, 974 F.2d 1035 (9th Cir. 1992) (misplacing a defendant's file violates the Speedy Trial Clause); United States v. Ingram, 446 F.3d 1332, 1340 (11th Cir. 2006) (after two-year post-indictment delay, defendant “need not demonstrate actual prejudice resulting from the delay” because “[t]he first three Barker factors all weigh heavily against the Government.”); Arrant v. Wainwright, 468 F.2d 677, 681 (5th Cir. 1972) (dismissing with prejudice after finding that the prosecutor’s desire not to see the defendant acquitted was an invalid purpose for pre-trial delay); United States v. Lara, 520 F.2d 460, 464 (D.C. Cir. 1975) (dismissing with prejudice after finding “unnecessary and unconscionable” a delay flowing from attempted prosecutorial forum shopping due to a prosecutorial preference to try the case in Florida instead of the District of Columbia; “[w]e cannot tolerate long and unnecessary delay caused by the deliberate act of the government seeking a supposed advantage”); United States v. Thomas, 527 F. Supp. 261, 263 (D.D.C. 1981) (dismissing with prejudice after finding delay resulting from prosecutor’s effort to proceed in a federal, instead of a local, forum an “unconstitutional[] abuse[]” of prosecutorial discretion); Cain, 686 F.2d at 383 (“This court fears the day when any arm of government is allowed to keep an individual under indictment for an extended period merely because it fears that were he brought to trial, he would be found not guilty.”).
Delay Caused by Defense
Defendants whose own actions lengthen the pretrial phase may forfeit their speedy trial claims. For example, litigious defendants who flood a court with pretrial motions may ultimately waive their rights to a speedy trial. [28]
3) Whether the right was asserted: Whether a defendant has asserted the right, “is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudices . . . that he experiences.” [29] Courts look not only to the frequency of the assertion, but the force. Thus it is important to assert the right clearly and frequently.
4) Prejudice: The presumption of prejudice may be established by a length of delay of more than one year, however courts still look to actual prejudice to the defendant when using the Barker balancing test. Specifically, a court considers: (1) whether the defendant's pretrial incarceration was oppressive; (2) the defendant's anxiety and concern [30]; and (3) the possibility that the delay hampered the defendant's ability to prepare his defense. [31]
Post-Conviction Delay
The right ends at conviction: Betterman v. Montana. [32] After Betterman, some courts have analyzed postconviction delay using Barker v. Wingo’s four factors: length of delay, reason for delay, defendant’s assertion of his right, and prejudice to the defendant. Other courts have used United States v. Lovasco’s two-prong test: the defendant must demonstrate that he suffered actual prejudice and the government delayed in bad faith.
Remedy
Dismissal is the only remedy for denial of a defendant’s Sixth Amendment speedy trial right. Strunk v. United States, 412 U.S. 434, 439-40 (1973); [t]he sole remedy for a violation of the speedy trial right [is] dismissal of the charges." Betterman v. Montana, 136 S. Ct. 1609, 1615 (2016) see also Quinn v. Roach, 326 F. App'x 280, 290 (5th Cir. 2009) (“The only remedy for a violation of the Sixth Amendment right to a speedy trial is dismissal of any criminal charges.”).
As for whether the dismissal should be with or without prejudice, the STA requires the court to “consider, among others, each of the following factors: [1] the seriousness of the offense; [2] the facts and circumstances of the case which led to the dismissal; and [3] the impact of a reprosecution on the administration of this chapter and on the administration of justice.” 18 U.S.C. § 3162(a)(2). The Supreme Court has explained that the “district court must carefully consider th[ese] factors as applied to the particular case and, whatever its decision, clearly articulate their effect in order to permit meaningful appellate review.” United States v. Taylor, 487 U.S. 326, 336, (1988) United States v. Stevenson, 832 F.3d 412 (3rd Cir. 2016).
Source: National Conference of State Legislatures
THE SPEEDY TRIAL ACT 18 U.S.C. §§ 3161-74
In response to Barker’s murky analytical framework, Congress passed the Speedy Trial Act of 1974 [33] which sets out specific time limits for federal criminal prosecution. Although it sets out certain time limitations, there are exceptions that may extend these limits.
Pursuant to the STA, informations or indictments must be filed within 30 days from the arrest date or the date when the summons was served. [34] Trial must normally begin within 70 days of the filing of charges or the defendant’s appearance before a judicial officer in the relevant court, whichever is later. [35] When the 70–day time limit established by section 3161 expires, the trial judge may dismiss the case with prejudice or without prejudice, based on factors specified by statute (e.g., the seriousness of the offense, the circumstances that led to the dismissal and “the impact of a reprosecution on the administration of [the Speedy Trial Act]”). [36]
If the defendant successfully obtains the dismissal of the indictment, the time starts again if the charge is reinstated. If the government dismisses the indictment, the 70-day timer is tolled when no indictment is outstanding. If a trial ultimately ends in a mistrial, the second trial has to commence within 70 days from the date of action for the mistrial.
It is also important to note that you may have a Speedy Trial Act violation but not a Sixth Amendment speedy trial violation. For example, in United States v. Worthy, No. 13-1831 (1st Cir. 2014), [37] An initial criminal complaint issued against Defendant on August 6, 2010 charging him with a drug-related offense. Over the next fourteen months, the government brought four superseding indictments against him. Five days before jury empanelment was set to begin, Defendant moved to dismiss the fourth superseding indictment, asserting impermissible trial delay. The government conceded a breach of 18 U.S.C. 3161(c)(1), which requires a criminal defendant to be brought to trial within seventy days of the filing of an indictment. The district court determined that the appropriate remedy for exceeding the statutory time limit was a dismissal of the fourth superseding indictment without prejudice and that Defendant’s Sixth Amendment right to a speedy trial had not been violated. Defendant was subsequently convicted. The First Circuit affirmed Defendant’s convictions, holding that the district court (1) properly decided that dismissal without prejudice was the appropriate remedy for the Speedy Trial Act violation; and (2) properly concluded that Defendant had not been deprived of his Sixth Amendment right to a speedy trial.
Violation of the STA’s time limits can lead to dismissal of charges. As for whether the dismissal should be with or without prejudice, the STA requires the court to “consider, among others, each of the following factors: (1) the seriousness of the offense; (2) the facts and circumstances of the case which led to the dismissal; and (3) the impact of a reprosecution on the administration of this chapter and on the administration of justice.” 18 U.S.C. § 3162(a)(2). The Supreme Court has explained that the “district court must carefully consider th[ese] factors as applied to the particular case and, whatever its decision, clearly articulate their effect in order to permit meaningful appellate review.” [38]
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NOTE Whether the prosecution is allowed to re-charge the defendant depends on the judge’s evaluation of considerations that include:
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SPEEDY TRIAL ISSUES
Delays in criminal cases have significant and far-reaching impacts for the accused, victims and witnesses, and the community. The causes of delay are systemic and require system-wide remedies.
For example:
- Delays in law enforcement disclosures of evidence to prosecutors lead to delays in disclosure to the defense and the need for continuances;
- Backlogs in state laboratories delay completion of key forensic testing;
- Vast amounts of digital and body camera evidence necessitate additional review time for prosecutors and defense attorneys;
- Excessive workloads and insufficient staffing cause attorneys on both sides to require additional preparation time; and
- Shortages of judges, courtrooms, and docket time cause courts to struggle to assure deadlines are met and cases are timely heard.
Assuring the timely and fair resolution of criminal cases requires striking a balance between the need for an expedient resolution and ensuring parties have adequate time to investigate, prepare, and present their case.
[1] Klopfer v. North Carolina, 386 U.S. 213, 223-26 (1967) ("The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution.").
[2] Barker v. Wingo, 407 U.S. 514, 522 (1972).
[3] Id. at 519.
[4] Id. at 519-21
[5] Id. at 532.
[6] See United States v. Ewell, 383 U.S. 116, 120 (1966).
[7] United States v. $8,850, 461 U.S. 555 (1983).
[8] Barker, supra at 519.
[10] Id.
[11] Doggettt v. United States, 505 U.S. 647, 651–52 (1992).
[12] Id. at 530. (emphasis added)
[13] Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992).
[14] Barker, 407 U.S. at 530-31
[15] See United States v. Souza, 749 F.3d 74, 81 (1st Cir. (2014).
[16] United States v. Dowdell, 595 F.3d 50, 60 (1st Cir. 2010) (quoting Barker, 407 U.S. at 530–31)
[17]United States v. Carpenter, 781 F.3d 599, 610 (quoting Doggett, 505 U.S. at 652, 112 S.Ct. 2686); see also Doggett, 505 U.S. at 652 n.1, 112 S.Ct. 2686. United States v. Irizarry-Colón, 848 F.3d 61 (1st Cir. 2017)
[18] See, e.g., Doggett, 505 U.S. at 652, 655, (dismissing with prejudice, after finding an eight-and-one-half year delay between indictment and trial “extraordinary” and “excessive”); Barker, 407 U.S. at 533, 534 (dismissing with prejudice after finding “clear[ly] . . . extraordinary” an over five-year pre-trial delay); Carini, 562 F.2d at 148 (dismissing with prejudice after deeming a 34-month pre-trial delay “disturbing”); United States v. New Buffalo Amusement Corp., 600 F.2d 368, 377 (2d Cir. 1979) (dismissing with prejudice after ruling that a pre-trial delay of “four and one-half years is unquestionably substantial”); United States v. Bergfeld, 280 F.3d 486, 490 (5th Cir. 2002) (dismissing with prejudice after quoting trial court finding that “[f]ive years well exceeds a length of time that might be held to be presumptively excessive”). Indeed, under the Barker analysis, delays of just one year are “presumptively prejudicial.” Doggett, 505 U.S. at 652 n.1.
[19] New Buffalo Amusement Corp., 600 F.2d at 377.
[20] See United States. v. Casas, 425 F.3d 23 (1st Cir. 2005)( 41 month delay between indictment and trial was “unusually long wait” but the complex nature of the proceedings coupled with several pretrial matters filed by appellants and their co-defendants offer compelling reasons for the lengthy delay, and that appellants did not suffer prejudice.)
[22] Vermont v. Brillon, 556 U.S. 81, 90 (2009) (quoting Doggett, 505 U.S. at 651).
[23] Barker, supra.
[24] Id.
[25] Id.
[26] Id. n. 32.
[27] Doggett, 505 U.S. at 657.
[28] United States v. Lindsey, 47 F.3d 440 (D.C. Cir. 1995).
[29] Barker, supra at 531.
[30] NACDL’s article on the psychological impact of delay
[31] Doggett v. United States, 505 U.S. 647, 654 (1992)
[32] 136 S. Ct. 1609 (2016); NACDL Amicus
[33] Speedy Trial Act (“STA”)
[34] 18 U.S.C. § 3161(c)(1). See also18 U.S.C. § 3161(b).
[35] 18 U.S.C. § 3161(c)(1).
[36] 18 U.S.C. § 3162(a)(2).
[37] https://law.justia.com/cases/federal/appellate-courts/ca1/13-1831/13-1831-2014-11-07.html
[38] United States v. Taylor, 487 U.S. 326, 336, (1988) United States v. Stevenson, 832 F.3d 412 (3rd Cir. 2016)