Speedy Trial

Excerpted from: Speedy Trial, 40 Georgetown Law Journal Annual Review of Criminal Procedure 401 (2011) (64 footnotes Omitted)

The Due Process Clause and federal statutes of limitations protect defendants from intentional and prejudicial preaccusation delay. The Sixth Amendment's speedy trial guarantee, the Speedy Trial Act of 1974, the Federal Rules of Criminal Procedure, and other federal statutes protect defendants from undue postaccusation delay.

Safeguards Against Preaccusation Delay. Statutes of limitations are the primary safeguards against prejudicial preaccusation delay. The Sixth Amendment “right to speedy trial” is not implicated before arrest, and, even after arrest, only applies to charges actually made. However, the Due Process Clause may be violated even if an indictment is brought within the prescribed statute of limitations. To establish a due process violation based on preaccusation delay, a defendant must show that the government's delay was an intentional device employed to gain a tactical advantage or to harass the defendant, and that the delay resulted in actual and substantial prejudice.

Courts generally refuse to find the requisite degree of prejudice based on unsubstantiated claims that the delay caused the defendant's or witness's memories to diminish, precluded the discovery of witnesses, resulted in the loss of evidence or death of witnesses, or caused witnesses to refuse to testify.

Constitutional Safeguards Against Post-Accusation Delay. The Sixth Amendment provides a fundamental right to a speedy trial that serves to: (1) prevent undue and oppressive incarceration prior to trial; (2) minimize “anxiety and concern accompanying public accusation”; and (3) limit the possibility that a long delay will impair the ability of an accused to present a defense.

The right to a speedy trial attaches at the time of arrest or formal charge, whichever comes first. The remedy for a violation of this right is to dismiss the indictment and vacate any sentence that has been imposed.

To determine whether a defendant has been deprived of the right to a speedy trial, courts consider the conduct of the defendant and the prosecution, focusing on the four factors articulated in Barker v. Wingo: (1) length of delay; (2) reason for delay; (3) whether, when, and how the defendant asserted the speedy trial right; and (4) whether the defendant was prejudiced by the delay.

The first Barker factor, the length of delay, is “a triggering mechanism” because “[u] ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors.” Courts generally hold that a delay in excess of one year is presumptively prejudicial. To determine how the first factor affects the overall speedy trial inquiry, courts consider the peculiar circumstances of the case because “the delay that can be tolerated for an ordinary street crime is considerably less than [that] for a serious, complex conspiracy charge.”

The second Barker factor is the “reason for the delay,” and “different weights [are] assigned to different reasons” for the delay. The reasons for each period of delay are considered in the aggregate, with consideration given to the effect of earlier delays in causing later delays. Deliberate attempts to hamper the defense weigh heavily against the government, while neutral reasons such as overloaded courts and negligence weigh less heavily. Delays resulting from valid reasons such as case complexity, good-faith interlocutory appeals, or the defendant's actions do not weigh against the government at all.

The third Barker factor focuses on whether and how the defendant asserted his right to a speedy trial.

The fourth and final Barker factor is prejudice. Courts assess prejudice “in the light of the interests of defendants which the speedy trial right was designed to protect”: oppressive pretrial incarceration, anxiety and concern, and impairment of the defense. Although prejudice is not a necessary prerequisite “to the finding of a deprivation of the right of speedy trial,” lower courts have been reluctant to find a violation of the speedy trial right absent a showing of prejudice.

Statutory Safeguards Against Post-Accusation Delay. The Speedy Trial Ac of 1974 establishes specific time limits for completing key stages of a federal criminal prosecution. The information or indictment must be filed within thirty days of the arrest or the service of a summons on the defendant. The trial must begin within seventy days of the fof the information or indictment, or within seventy days of the date the defendant first appears before a judicial officer, whichever is later. Trial must generally begin within ninety days of the government's detaining a defendant who is solely awaiting trial. To provide a defendant with an adequate opportunity to prepare, a trial may not begin earlier than thirty days after the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se, unless the defendant consents in writing to an earlier date for trial.

If a charge against the defendant is dismissed or dropped, the Speedy Trial Act's time limits restart upon a subsequent prosecution for the same offense. If the indictment is dismissed at the government's request, however, the seventy-day clock tolls during the period in which no indictment is outstanding and continues upon the filing of the second indictment. When a mistrial or an order for a new trial is granted, the second trial must begin within seventy days of the date when “the action occasioning the retrial becomes final.” The circuits are split regarding whether the relevant action is the issuance or the receipt of the appellate court's mandate for a new trial.

Certain types of pretrial delay are automatically excluded from (i.e., not counted towards) the Act's time limits without regard to the reasonableness of the delay. For instance, the Act specifically excludes any delay caused by the absence or unavailability of a defendant or an essential witness. The Act also provides a broad exclusion for delays due to a defendant's involvement in “other proceedings.” The Act offers several examples of delays considered to be “other proceedings,” including transportation of the defendant, pretrial motions requiring a court hearing, and limited periods while courts consider pretrial motions that do not require a hearing, although this list is not exhaustive. The Act does not automatically allow exclusion of time for the preparation of pretrial motions.

Other categories of excludable delay are subject to judicial discretion. For example, courts may exclude reasonable periods of time to align the Speedy Trial Act deadlines of codefendants. The trial judge may also exclude delays caused by continuances granted by the court where the “ends of justice ... outweigh the best interest of the public and the defendant in a speedy trial.” The complexity of the case can also be grounds for delay. The court must state its reasons in the record for excluding such a delay no later than when it rules on the defendant's motion to dismiss.

A defendant may not prospectively waive his or her rights under the Speedy Trial Act, such as by agreeing to a continuance. However, the defendant loses the right to seek relief for a violation of the Act by failing to move for dismissal of the charges before the start of trial or before the entry of a plea of guilty or nolo

A court must dismiss the charges if the defendant is not indicted within the Speedy Trial Act's time limits, or after the filing of a timely motion seeking relief, if the defendant is not brought to trial within the Act's time limits. A defendant bears the burden of proving a violation of the Act, but the government has the burden of producing evidence concerning an exclusion of time under § 3161(h)(3). In either of these circumstances, the court has the discretion to dismiss with or without prejudice. In exercising this discretion, the trial court must weigh three factors: (1) the seriousness of the offense; (2) the circumstances leading to dismissal; and (3) the effect of reprosecution on the administration of justice and the Act.

In addition to the Speedy Trial Act, other federal statutes and the Federal Rules of Criminal Procedure contain speedy trial provisions to prevent post-accusation delay. The Interstate Agreement on Detainers Act limits the time available for state or federal prosecutors to pursue outstanding charges against a prisoner in another jurisdiction. The Federal Juvenile Delinquency Act requires that all trials involvingjuvenile defendants begin within thirty days, if the defendant is being detained pending trial, unless any additional delay is caused by the juvenile defendant, consented to by the juvenile defendant, or in the interest of justice. Additionally, Rule 48(b) of the Federal Rules of Criminal Procedure grants trial courts the discretion to dismiss a case for “unnecessary delay” after an accused's arrest.