The right to a speedy trial finds expression in the U.S. Constitution, state constitutions, state and federal statutory law, and state and federal case law. The Sixth Amendment to the U.S. Constitution, and the case law surrounding this amendment, provide the best place to start analysis of the basic questions of primary concern: What interests does the right protect? When and why are these interests triggered? And how should these interests be protected, both to prevent their violation whenever possible and to remedy the effects of violations when violations nonetheless occur?
The words of the Sixth Amendment guarantee, among other things, that "In all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial." Although this right, like everything else in the Bill of Rights, originally applied only against the federal government (Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)), it has since been "incorporated" via the Fourteenth Amendment to apply to the states as well (Klopfer v. North Carolina, 386 U.S. 213 (1967)). In a nutshell, the Framers designed the right to protect a person from prolonged de facto punishment—extended accusations that limit his liberty and besmirch his good name—before he has had a full and fair chance to defend himself. If government accuses someone, it must give him the right, speedily, to clear himself at trial and regain his good name and full liberty. And if government holds the accused in extended pretrial detention, courts must ensure that the accuracy of the trial itself will not thereby be undermined—as might occur if a defendant's prolonged detention itself causes the loss of key exculpatory evidence.
A series of cases decided by the Supreme Court during the second half of the twentieth century laid down seven general propositions concerning the constitutional right to a speedy trial. (1) The Court has repeatedly identified three major and distinct interests protected by the Sixth Amendment speedy trial clause: an interest in avoiding prolonged pretrial detention, an interest in minimizing the anxiety and loss of reputation accompanying formal public accusation, and an interest in assuring the ultimate fairness of a delayed trial. (2) The Court has made clear that the major evils of pretrial restraints on liberty and loss of reputation occasioned by accusation exist quite apart from the third major evil of possible prejudice to an accused's defense at trial. (3) The Court has held that the clause simply does not apply to the time between the commission of the crime and the time that the defendant is in some way "accused" (usually by arrest or indictment) by the government. In other words, the clause applies only to the formal "accusation period"–the period between governmental accusation and trial. (4) Relatedly, the Court has held that the clause does not apply to any period during which the government drops its initial charges while retaining the right to reindict later—the defendant is not "accused" during this time, and so the speedy trial clock stops ticking against the government during this period. (5) The Court has held that if preaccusation delay compromises the defendant's ability to defend herself, the main safeguard against injustice comes from the applicable statute of limitations. In cases of substantial prejudice to a fair trial caused by a prosecutor's purely strategic delay in bringing the initial accusation, defendants may also seek relief by appealing to general due process principles. (6) The Court has said that the judicial remedy for speedy trial violations of dismissing the case with prejudice—that is, dismissing with no possibility of refiling charges later—is unsatisfactorily severe because it means that a defendant who may be guilty of a serious crime will go free, without ever having been tried. Such a remedy, the Court has noted, is more severe than the Fourth Amendment exclusionary rule, which limits the introduction of certain evidence, but typically does not altogether bar a trial. (7) Nonetheless, the Court has repeatedly held that dismissal with prejudice is the only possible remedy for speedy trial clause violations. Given the first six propositions, the analytic soundness of proposition seven seems questionable to some scholars, although the law appears quite clear on this point.
It may be seen that the first of the principles set out above suggests that each of the three interests protected by the clause may have a different time limit. Imagine, for simplicity, a case in which the liberty interest would be violated by anything more than a month of pretrial detention: by hypothesis, any detention longer than this would be an unacceptable deprivation of liberty for a man who has yet to receive all the safeguards of a full-blown trial—a man who has not yet been, and may never be, convicted of anything. Now imagine a second defendant, charged with the identical crime but released on her own recognizance pending trial. In this second case, no pretrial detention interest exists, and her distinct anxiety and reputation interest would not necessarily be violated by a similar one-month gap between indictment and trial. For example, a full year might elapse before this distinct constitutional interest—which demands that at some point an accused person must be allowed to answer the government's accusation and thereby clear her good name—would be violated. The fair trial interest may have a different time period still, depending on the particular ways in which the government's accusation threatens to impede a defendant's ability to fully defend himself at trial. For example, some pretrial detentions might severely obstruct the defendant's ability to assemble evidence and witnesses for his trial defense; other detentions might not, depending on the particular conditions of confinement and state of the evidence; and still other indictments will not involve any pretrial detention.
Moreover, it is clear that the clause is violated by overlong detention regardless of what happens later on: an impermissibly lengthy detention violates the clause whether it ends in a trial or in the charges being dropped. So far as the pretrial liberty interest is concerned, it is the detention, and not the trial, that violates the speedy trial clause. This is suggested by the second proposition: the pretrial liberty and reputation interests are independent of the conditions of the trial, as the Court made clear in the 1971 case of United States v. Marion , 404 U.S. 307. Marion also illustrated the third proposition in upholding, against a Sixth Amendment challenge, an indictment handed down three years after prosecutors supposedly knew about the crime and defendants' involvement in it; the defendants, said the Court, were simply not "accused" during those three years. In accordance with the fifth proposition, the Court ruled that the statute of limitations was the defendants' primary safeguard, and further noted that if defendants could show substantial prejudice to their defense created by a bad-faith prosecutor seeking delay simply to gain tactical advantage, a due process challenge would be appropriate.
Thus, the speedy trial clause is accusation-based: it applies only to harms caused when and because one is "accused." (The 1992 case of Doggett v. United States, 505 U.S. 647, decided by a 5–4 vote, might be thought inconsistent with this general statement, but on careful analysis it is not. In Doggett, which involved an indictment that was allowed to linger for eight years, the accusation itself did indeed cause harm to the defendant, because the indictment tolled the relevant five-year statute of limitations. Perhaps the best way of explaining Doggett 's result—if not all its language—is to say that the case involved the interaction of the Sixth Amendment and the statute of limitations; the proper rule to be derived from the case is that if an accusation period is unconstitutionally long under the Sixth Amendment, the indictment should automatically lapse, and thus cease to toll the statute of limitations, whose clock begins to tick again.)
This accusation-based interpretive scheme makes functional and textual sense. If the three major evils of speedy trial clause violations are loss of liberty, loss of reputation, and harm to the defendant's ability to defend herself at trial, then it seems clear that the speedy trial clause is applicable only during the time that a person is in custody or under indictment. After all, it is accusation itself that triggers the threat to the liberty, reputation, and fair trial interests. A person who has not been arrested suffers no loss of liberty; a person not under arrest or indictment suffers no formal government-created loss of reputation; nor does such a person face an upcoming trial. All of the harms, however, become imminent upon arrest or indictment—upon accusation. The accusation-based language of the clause strongly reinforces this analysis; its words come into effect only when a person becomes "the accused"–typically, by arrest or indictment. Elsewhere, the Sixth Amendment speaks of the district in which "the crime shall have been committed." If the speedy trial clock were meant to begin ticking before arrest or indictment, it would have made more sense to speak of the "time at which the crime shall have been committed" in the speedy trial clause. Instead, the use of the word "accused" indicates that it takes effect only after arrest or indictment. Of course, this is not to say that a prosecutor may properly wait as long as he likes to file charges (perhaps in the hopes that key defense evidence will fade away or defense witnesses disappear). As proposition (5) reminds us, statutes of limitations provide the primary defense against this kind of prosecutorial abuse, and due process principles are applicable as well.
Although the Constitution speaks of a speedy trial as the right of the "accused," the Court has recognized that society at large also has its own legitimate interests in the prompt resolution of criminal accusations. Many defendants—especially guilty defendants—might prefer to delay their trials, perhaps in the hopes that prosecutorial evidence will become stale, making it more difficult for the government to carry its ultimate burden of proof beyond reasonable doubt. But the Constitution does not give a defendant a general right to an "unspeedy" trial—unlike, for example, the Sixth Amendment right of counsel, which is accompanied by a general right not to have counsel (see Farretta v. California, 422 U.S. 806 (1975)). Nevertheless, at some extreme point, an accusation period could be so short as to violate general due process principles: a defendant must be given sufficient time to arrange his defense, as the Supreme Court recognized in its famous ruling in the so-called Scottsboro case (Powell v. Alabama, 287 U.S. 45 (1932)).
In light of this analysis of the nature and the timing of speedy trial clause rights, it remains to ponder how these rights should be legally protected and remedied. Although the Court has said that dismissal with prejudice is the only possible remedy, there are reasons to doubt the analytical soundness of this assertion. Consider the first interest protected by the clause, the bodily liberty interest offended by overlong pretrial detention. Judges can simply refuse to allow this violation to happen by issuing writs of habeas corpus directing the release of prisoners who have served as much pretrial time in jail as the clause will tolerate. Historically, the history of the speedy trial right in England tightly intertwined with the famous English Habeas Corpus Act of 1679. However, habeas is less a remedy than a means of prevention. What should the remedy be when the judge fails to issue a writ? One controversial possibility would be to allow for compensatory and punitive damages directly against the government. Extending its landmark ruling in Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which held that government officials who conducted unreasonable searches could be sued directly under the Fourth Amendment, the Court could find a direct cause of action against the government itself under the Sixth Amendment's speedy trial clause. Indeed, unconstitutionally long detentions would seem to be a subset of unreasonable seizures of persons, and so the Fourth Amendment might seem directly applicable as well. The prospects for such a doctrinal development, however, seem bleak. The most natural damage remedy would lie against the government itself. (Judges who ordered the detention would enjoy judicial immunity; prosecutors who allowed the defendant to languish in jail pretrial would likewise claim that a court had authorized the detention; and the jailer would insist that he was acting in good faith reliance upon a judicial order of confinement.) But principles of sovereign immunity would likely make it difficult to prevail in a damage suit brought directly against the government, even though its executive and judicial agents combined to deprive a defendant of his constitutional rights to bodily liberty.
Similarly, for the second speedy trial interest—reputation—the judge can prevent violations by simply quashing indictments that linger too long, with permission to reindict whenever the prosecutor is ready to proceed immediately to trial. Again, if the judge fails to prevent a violation, civil damages would be a remedial possibility, just as they are in other cases of damaged reputation (e.g., slander and libel): the accused has been charged by the government of having committed an infamous act, but has been denied his right to speedily clear his name in a fair trial. Here, too, however, the problem of sovereign immunity has blocked the development of this analytically attractive remedy.
One of the main virtues of damage remedies is that they seek to vindicate the rights of innocent men and women wrongly detained and accused; dismissal with prejudice is not a true, or tailored, remedy for someone who is clearly innocent, and would have obviously prevailed at trial. (Dismissal with prejudice can also be an unfortunate windfall to the guilty in some cases, as shall become more clear below.) In other words, although dismissal with prejudice might well vindicate whatever fair trial interest might exist—if it exists—it does nothing to redress the analytically distinct wrongs of pretrial loss of bodily liberty and reputation that can occur when a defendant is held too long in pretrial detention, or accused too long without a chance to speedily clear his name at trial. The framers of the Constitution cared a great deal about innocent persons, and designed many provisions of the Fourth, Fifth, and Sixth Amendments to protect these innocent persons from erroneous punishments and impositions. The speedy trial clause is clearly, at its core, designed to give an innocent man wrongly accused a right to a speedy trial so that he can clear his good name and end whatever pretrial deprivations of liberty he may be suffering. These two major interests—in reputation and liberty—are ill served by the current absence of good remedies to make innocent men and women whole when these interests have been violated by government.
Consider finally the fair trial interest, designed to ensure that an overlong accusation itself (which of course may trigger pretrial detention and which may cause an immediate loss of reputation that worsens with every day the indictment lingers) does not compromise the ability of a defendant to put on a full and unimpaired defense at trial. Here, too, the Amendment is centrally designed to protect an innocent defendant from being erroneously imposed upon. A judge could again prevent violations of this interest by ordering the pretrial release of the defendant or ordering the conditions of confinement softened so that the confinement does not cause the loss of key exculpatory evidence. If this fails, however, there are several possible judicial remedies. One is dismissal with prejudice. The idea here is simple: if, because of the government's unconstitutionally long accusation period, a fair trial is simply no longer possible, then the trial itself should be permanently aborted, and the defendant set free. This is a precisely tailored remedy—but only for that subset of cases in which the fair trial interest has been incurably compromised. Another possible option, in cases where it is less than clear that a trial would itself be unfair, is to rely on the due process rule of In re Winship, 397 U.S. 358 (1970), requiring the government prove guilt beyond a reasonable doubt in criminal cases. A defense argument to the jury that an unreasonable delay by the prosecutor's office caused key evidence to be lost could certainly be grounds for reasonable doubt.
Under the foregoing remedial analysis, the different speedy trial clause interests—protecting bodily liberty, reputation, and fair trials—call for different and precisely tailored remedies. Dismissal with prejudice is not, contra the Court's pronouncements in Barker v. Wingo, 407 U.S. 514 (1972), and Strunk v. United States, 412 U.S. 434 (1973), "the only possible remedy" for speedy trial clause violations. It is indeed a precisely apt remedy where a trial itself would be incurably unfair, because of the government's own conduct during the accusation period. But it is inapt in many other cases in which rather different if speedy trial clause interests may have been violated. Thus, dismissal with prejudice, without more, underprotects the innocent defendant who would have won acquittal in any event, but who is not compensated for the loss of his distinct interests in bodily liberty and reputation. Here, dismissal alone is too little. In other cases, it is too much: it overprotects guilty defendants in cases where there is no threat to a fair trial but where there has been a violation of distinct speedy trial interests—for example, an overlong detention that offended the bodily liberty interest, or an overlong accusation that implicated the reputation interest. If dismissal with prejudice is indeed the only possible remedy, the guilty defendant gets a windfall, while the innocent one receives nothing for months or years of detention and/or a ruined reputation. It is submitted here that a more sensible enforcement scheme—one consistent with propositions (1)–(6)–would call for timely judicial orders to either prosecute immediately or drop the charges or release the prisoner (depending on which time period has tolled). Dropping the charges would still permit the prosecutor to reindict later, and proceed immediately to trial. Such an enforcement scheme would also call for compensatory and (in egregious cases) punitive damages against the government for defendants who have either been subjected to unconstitutionally long periods of imprisonment or prolonged attacks on their good names. Note that those defendants ultimately found guilty in fair trials would likely have no case for claiming that the overlong accusation besmirched their good names: had the trial occurred sooner, they would have been found guilty even sooner, with even more (and deserved) discredit heaped on their reputation. As for overlong detentions, to avoid any possible double punishment, the guilty could receive sentencing offsets for time served, as is currently provided for in federal cases by 18 USC section 3585 (b). It is still possible that a guilty defendant would have a case for damages: perhaps his pretrial detention was so long as to be greater than the length of his eventual sentence upon conviction. Here, again, it would seem that he has been unconstitutionally seized in a way that a Bivens -type suit should appropriately remedy. But in general, those defendants who won acquittals at trial—innocent defendants—would tend to recover more than those defendants later found guilty at trial. This is as it should be if indeed the speedy trial right is centrally concerned with protecting innocent persons from erroneous governmental deprivations of liberty and reputation.
Because dismissal with prejudice has been held by the Supreme Court to be the only appropriate remedy for speedy trial clause violations, it is possible that judges have gone out of their way to avoid finding violations, in order not to create a severe windfall for guilty defendants. Indeed, the Court has opted for a rather loose, multi-factor test to assess speed. In this test, judges must weigh the length of the pretrial delay; the reason for the delay; whether and when the defendant asserted his speedy trial right; and whether the delay in fact prejudiced the defendant's trial. There are few fixed guidelines or strict deadlines under this approach.
In 1974, Congress responded to this loose judicial regime with the Speedy Trial Act, 18 USC sections 3161–3174, providing a tighter, fixed schedule regulating the accusation period. For example, the act requires persons arrested to be charged within thirty days and arraigned within ten days of indictment or information; the trial must then commence within sixty days of arraignment. If, after this time, a trial has not commenced, a defendant can move for dismissal of the charges, either with or without prejudice—with the decision turning on factors including the seriousness of the offense, the facts and circumstances leading to dismissal, the impact on the administration of justice, the prejudice to the defendant, the length of the delay, and the defendant's own role in contributing to the delay. The act also provides a rather intricate framework for determining various periods of delay during which the statutory clock stops ticking.
The states have also enacted legislation to ensure the right to a speedy trial. The Interstate Agreement on Detainers is a 1970 compact between forty-eight states, the District of Columbia, and the federal government. Under the terms of this agreement, if a person is serving prison time in one state and charges are pending against him in another state, he has the right to be brought to trial within 180 days of requesting final settlement of the pending charges. The agreement also provides for extradition between states for the purposes of standing trial, and requires that an extradited prisoner be tried within 120 days of his arrival in the receiving state. Finally, if any of these terms are violated, or if officials of the receiving state refuse to accept custody of a prisoner against whom they have an indictment, the indictment will be dismissed with prejudice.
The foregoing discussion has been somewhat abstract and analytical; the contemporary legal reality is more messy, and rather depressing to contemplate. A great many suspects in today's world are subject to considerable pretrial detention, notwithstanding the letter and spirit of the Sixth Amendment and the Eighth Amendment bail clause. Dejected and demoralized, many poor defendants may end up pleading guilty, even to crimes that they may not have committed, so that they can be released on the basis of time already served. (With no damage remedy awaiting them upon acquittal for their overlong pretrial detention, many have little incentive indeed to put the prosecution to its ultimate proof at trial.) The result is a system that in reality falls short of vindicating the noble principles of the Constitution.
Akhil Reed Amar
See also Arraignment; Bail; Criminal Justice Process; Criminal Procedure: Constitutional Aspects; Trial, Criminal.
Amar, Akhil Reed. "Foreword: Sixth Amendment First Principles." Georgetown Law Journal 84 (1996): 641.
Amsterdam, Anthony G. "Speedy Criminal Trial: Rights and Remedies." Stanford Law Review 27 (1975): 525.
Arkin, Marc M. "Speedy Criminal Appeal: A Right without a Remedy." Minnesota Law Review 74 (1990): 437.
Godbold, John C. "Speedy Trial: Major Surgery for a National Ill." Alabama Law Review 24 (1965): 265.
Barker v. Wingo, 407 U.S. 514 (1972).
Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).
Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Farretta v. California, 422 U.S. 806 (1975).
In re Winship, 397 U.S. 358 (1970).
Klopfer v. North Carolina, 386 U.S. 213 (1967).
Powell v. Alabama, 287 U.S. 45 (1932).
Strunk v. United States, 412 U.S. 434 (1973).
United States v. Marion, 404 U.S. 307 (1971).
The sixth amendment to the U.S. Constitution guarantees all persons accused of criminal wrongdoing the right to a speedy trial. Although this right is derived from the federal Constitution, it has been made applicable to state criminal proceedings through the U.S. Supreme Court's interpretation of the due process and equal protection Clauses of the fourteenth amendment.
The right to a speedy trial is an ancient liberty. During the reign of henry ii (1154–1189), the English Crown promulgated the Assize of Clarendon, a legal code comprised of 22 articles, one of which promised speedy justice to all litigants. In 1215 the magna charta prohibited the king from delaying justice to any person in the realm. Several of the charters of the American colonies protected the right to a speedy trial, as did most of the constitutions of the original 13 states.
The Founding Fathers intended the Speedy Trial Clause to serve two purposes. First, they sought to prevent defendants from languishing in jail for an indefinite period before trial. Pre-trial incarceration is a deprivation of liberty no less serious than post-conviction imprisonment. In some cases pretrial incarceration may be more serious because public scrutiny is often heightened, employment is commonly interrupted, financial resources are diminished, family relations are strained, and innocent persons are forced to suffer prolonged injury to reputation.
Second, the Founding Fathers sought to ensure a defendant's right to a fair trial. The longer the commencement of trial is postponed, the more likely it is that witnesses will disappear, memories will fade, and evidence will be lost or destroyed. Of course, both the prosecution and the defense are threatened by these dangers, but only the defendant's life, liberty, and property are at stake in a criminal proceeding.
The right to a speedy trial does not apply to every stage of a criminal case. It arises only after a person has been arrested, indicted, or otherwise formally accused of a crime by the government. Before the point of formal accusation, the government is under no Sixth Amendment obligation to investigate, accuse, or prosecute a defendant within a specific amount of time.
Nor does the Speedy Trial Clause apply to post-trial criminal proceedings, such as probation and parole hearings. If the government drops criminal charges during the middle of a case, the Speedy Trial Clause does not apply unless the government later refiles the charges, at which point the length of delay is measured only from the time of refiling. However, the fairness requirements of the Due Process Clause apply during each juncture of a criminal case, and an unreasonably excessive delay can be challenged under this constitutional provision even if the delay occurs before formal accusation or after conviction.
The U.S. Supreme Court has declined to draw a bright line separating permissible pre-trial delays from delays that are impermissibly excessive. Instead, the Court has developed a balancing test in which the length of delay is just one factor to be considered when evaluating the merits of a speedy trial claim. The other factors to be considered by a court include the reason for the delay, the severity of prejudice suffered by the defendant from the delay, and the stage during the criminal proceedings at which the defendant asserted the right to a speedy trial.
A delay of at least one year in bringing a defendant to trial following arrest will trigger a presumption that the Sixth Amendment has been violated, with the level of judicial scrutiny increasing in direct proportion to the length of delay. A longer delay may be deemed constitutional, however, and a shorter delay may be deemed unconstitutional, depending on the circumstances.
Longer delays will be permitted to accommodate the schedules of important witnesses, and to allow the prosecution to prepare for a complex case. Longer delays will also be tolerated when a defendant is dilatory in asserting the right to a speedy trial. In general, defendants must assert their Sixth Amendment right in a timely motion before the trial court. If the defendant fails to assert the right in this manner or acquiesces in the face of protracted pretrial delays, she or he may not raise the issue for the first time on appeal, unless the defendant's failure to raise the issue earlier was due to her or his attorney's negligence. Defendants who delay prosecution by inundating the trial court with frivolous pretrial motions are also treated as having forfeited their rights to a speedy trial. The law does not allow defendants to profit from their own wrong under these circumstances.
Delays shorter than a year will be ruled unconstitutional if the reason for delay offered by the prosecution is unpersuasive or inappropriate. Delays attributable to prosecutorial misconduct, such as the deliberate attempt by the government to delay a proceeding and hamper the defense, will run afoul of the Speedy Trial Clause. Prosecutorial negligence, such as misplacing a defendant's file or losing incriminating evidence, is also considered an inappropriate reason for delay. Additionally, delays shorter than a year will be deemed unconstitutional when the delay has severely limited the opportunity for the accused to defend himself. For example, the death of an alibi witness who would have been available for a timely trial is considered prima facie evidence of prejudice under the Speedy Trial Clause.
Despite the strictures of the Speedy Trial Clause, criminal justice has not always moved swiftly in the United States. During the 1970s federal courts had backlogs of thousands of cases on their dockets. Lengthy pretrial delays clogged local jails at great expense to taxpayers. Increasing numbers of defendants were jumping bail while free during extended pretrial release. In 1974 Congress enacted the Speedy Trial Act (18 U.S.C.A. §§ 3161 et seq.) to ameliorate the situation.
Unlike the balancing test created by the Supreme Court to evaluate a claim under the Speedy Trial Clause, the Speedy Trial Act establishes specific time limits between various stages of federal criminal proceedings. The act requires federal authorities to file an information or indictment within 30 days of a defendant's arrest. A prosecutor who knows that an accused is incarcerated at the time of indictment must take immediate steps to initiate prosecution. If a defendant enters a plea of not guilty, trial must commence within 70 days from the filing of the information or indictment or 70 days from the first appearance of the accused in court, whichever is later.
Certain types of delays are exempted from the act's time limitations. For example, the act exempts delays caused by the absence of the defendant, the unavailability of an essential witness, or the conduct of a codefendant. Delays resulting from a defendant's involvement in other legal proceedings are typically exempted as well. Additionally, the act gives courts discretion to grant the prosecution a continuance in the interests of justice. Courts are also given discretion to dismiss charges when a defendant suffers prejudice from a pretrial delay that is of a kind not exempted under the act.
The Speedy Trial Act has been held to apply to both citizens and non-citizens alike. See United States v. Restrepo, 59 F. Supp. 2d 133 (D. Mass. 1999). However, since the september 11th attacks in 2001, the United States has sought to enhance the abilities of immigration officials and other law enforcement officers to prevent further terrorist attacks. Under the usa patriot act of 2001, Pub. L. No. 107-56, 115 Stat. 272, the attorney general may certify a non-citizen as a terrorist if reasonable grounds exist to believe that the non-citizen has been engaged in terrorist activities. If the attorney general certifies the non-citizen as a terrorist, the act mandates the detention of the non-citizen. If the terrorist is deemed to be a threat to national security, or if emergency or other extraordinary circumstances are present, the federal government may detain the person for six months or longer. Accordingly, a suspected terrorist could be detained for a significant period of time without criminal charges or deportation proceedings brought against the suspect.
Many state jurisdictions have passed legislation similar to the Speedy Trial Act. Like the federal act, most state legislation permits courts to provide prosecutors with additional time upon a showing of exceptional circumstances. Most state laws also authorize courts to dismiss charges that have not been brought within a reasonable amount of time following arrest or indictment. Thus, these defendants faced with an unreasonable pretrial delay have a number of constitutional and statutory provisions that may provide them with effective relief.
Cole, David. 2002. "Enemy Aliens." Stanford Law Review 54 (May).
Feldman, Steven D. 1996. "Twenty-fifth Annual Review of Criminal Procedure: Speedy Trial." Georgetown Law Journal 84 (April).
LaFave, Wayne R., Jerold H. Israel, and Nancy J. King, eds. 2000. Criminal Procedure. 3d ed. St. Paul, Minn.: West Group.
Lebowitz, Lawrence M., and Ira L. Podheiser. 2002. "A Summary of the Changes in Immigration Policies and Practices After the Terrorist Attacks of September 11, 2001: The USA PATRIOT Act and Other Measures." University of Pittsburgh Law Review 63 (summer).
Criminal Law; Criminal Procedure; Due Process of Law; Incorporation Doctrine.
The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy… trial." The Supreme Court in klopfer v. north carolina (1967) held that the guarantee is applicable to the states through the due process clause of the fourteenth amendment. The origin of the right can be traced back at least to magna carta (1215) and perhaps to the Assize of Clarendon (1166). On different occasions the Supreme Court has described it as "fundamental," "slippery," and "amorphous."
Denial of a speedy trial may result in prolonged incarceration prior to trial and exacerbation of the anxiety and concern that normally accompany public accusations of crime. Prolonged incarceration before trial inevitably involves a disruption of normal life and imposition of a substantial sanction at a time when innocence is still presumed. It causes loss of productive labor, normally without opportunity for training or rehabilitation, and frequently interferes with preparation of a defense.
Pretrial release can ameliorate these conditions, but a defendant who achieves pretrial release may be subject to significant restraints on his freedom of action, his job may be threatened, his resources may be dissipated, and he and his family may suffer from understandable concern about his future while his reputation in the community is impaired. For these reasons courts have enforced the right in a variety of contexts. Charges were dismissed in Smith v. Hooly (1969) when a state failed to bring a defendant to trial on state charges while he was serving a federal sentence despite demands for trial by the accused, and in Klopfer when a state suspended prosecution indefinitely although the defendant was not in custody.
Not all defendants want a speedy trial; many want no trial at all. Delay is a common defense tactic and in some cases an accused may benefit from prolonged delay, particularly when pretrial release has been achieved. In such cases, although only the defendant has a right to demand a speedy trial, the state may desire a speedy trial. Prolonged delay contributes to court backlog and places pressure on prosecutors to make concessions in plea bargaining. Defendants released pending trial may commit additional crimes. Witnesses may die. Memories fade. The risk of escape or bail-jumping cannot be ignored.
Not infrequently, delay may serve the interests of both an accused and a prosecutor for different reasons. Even if public interest would be better served by a prompt trial, there may be no effective way of expediting trial. Nor is the public interest served by dismissing charges if a trial is not held promptly.
One answer to the problem would be a requirement that trial take place within a specified time. The variety of factual situations confronting prosecutors and defense counsel has prevented agreement on an appropriate time interval between charge and trial that should govern all cases. The absence of such a litmus test has deterred the Court from proclaiming any single period of delay as the maximum permitted by the constitutional imperative.
There are good reasons for requiring a defendant to make an appropriate demand before he can complain of a denial of his right to speedy trial, but the Court has also declined to place such an obligation upon a defendant as an absolute requirement. Instead, in barker v. wingo (1972), it chose to consider the facts of each case, examining the length of the delay, the prejudice it might cause, the presence or absence of a demand for trial by the defendant, and the justification asserted by the state for its failure to try the accused earlier.
Courts have been remarkably receptive to government justification for significant delays. For example, in Barker a delay of five and one half years and sixteen state-requested continuances was permitted because of the need to convict a co-defendant before proceeding against the accused, illness of the chief investigating officer, and acquiescence by the defendant during most of the period. The willingness of a court to accept government assertions of good cause may be influenced by recognition that a dismissal of pending charges is required by the Supreme Court holding in Strunk v. United States (1973) if it decides a speedy trial has been denied. Unlike the exclusionary rule or other sanctions for violation of rights, dismissal resulting from a finding of a deprivation of the right to speedy trial may fully immunize a defendant from prosecution.
According to the Court's holding in United States v. Marion (1971) only "an accused" may assert a right to speedy trial and a prosecution must have been initiated by arrest and filing of charges before the right attaches. The period between the charge and trial is crucial. Delay between commission of the crime and formal charge is not significant to a claim of a Sixth Amendment violation, although the identity of the accused was or might have been known and probable cause for arrest or indictment may have existed. In united states v. macdonald (1982) the Supreme Court held that prosecutorial delay between dismissal of initial charges by military authority and reassertion of the charges in a civilian forum at a later time was beyond the purview of the Sixth Amendment.
Many of the disadvantages caused an accused by unreasonable delay between charge and trial also ensue when there is an unreasonable delay before charges are brought against him. In United States v. Lovasco (1977) the Supreme Court indicated that, in unusual cases, an accused may be able to establish a violation of the due process clause as a result of oppressive pretrial delay where actual prejudice can be demonstrated and inadequate justification exists. Government "bad faith," as when a charge is delayed, or dismissed and subsequently asserted at a later time in order to "forum shop," stockpile charges, or achieve some other tactical advantage, might also constitute a denial of due process. But the degree of protection afforded to an accused against unreasonable delay between commission of an offense and formal charges will depend on the applicable statute of limitations in most cases.
Statutory provisions implement the constitutional provision in many states and in federal prosecution. Encouraged by the American Bar Association Standards for Criminal Justice, Speedy Trial (1968), many jurisdictions have set specific legislative time limits within which a defendant must be brought to trial. Perhaps the most important of these statutes is the federal Speedy Trial Act of 1974, defining in detail permissible time periods in different types of cases and setting forth grounds for dismissal of charges with and without prejudice. Assertion of rights under these statutes is more likely to provide effective protection to an accused than reliance on the Constitution except in extraordinary cases.
A. Kenneth Pye
Amsterdam, Anthony G. 1975 Speedy Criminal Trial: Rights and Remedies. Stanford Law Review 27:525–543.
Godbold, John C. 1972 Speedy Trial—Major Surgery for a National Ill. Alabama Law Review 24:265–294.
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