10.5 Speedy Trial

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

10.5 SPEEDY TRIAL

10.501 In General. Both the United States and Virginia Constitutions guarantee a right to a speedy trial. ⁹¹ The constitutional right to a speedy trial is a fundamental right imposed by the Fourteenth Amendment on the states. ⁹² The right to a speedy trial, however, is different from other constitutional rights of the accused, since there is also a societal interest in providing a speedy trial. The failure to provide a speedy trial may actually work to the advantage of the accused. ⁹³

From the perspective of the accused, however, there are substantial interests involved in securing a prompt disposition of charges. These include: (i) avoiding undue and oppressive incarceration before trial; (ii) minimizing the anxiety and concern accompanying accusation; and (iii) minimizing the possibility that delay will impair the ability to present a defense. ⁹⁴

10.502 The Constitutional Standard. The Supreme Court has rejected a rigid approach to the speedy trial problem by holding that there is no precise formula for determining when the right has been abridged. ⁹⁵

[Page 588]

Moreover, the Court also has held that the defendant has no obligation to bring himself or herself to trial and that the presence or absence of a demand by the defendant for trial is simply one factor to be considered. ⁹⁶

Speedy trial problems are to be resolved by a case-by-case balancing of a variety of factors: (i) the length of the delay (which must be evaluated in the context of the nature of the case—less for simple crimes than for complex ones); (ii) the reasons for the delay; (iii) whether and how the defendant asserted the right (a defendant's assertion is strong evidence of a deprivation); and (iv) prejudice to the defendant. ⁹⁷ When the delay is excessive, prejudice may be presumed. ⁹⁸ However, to constitute a showing of actual prejudice, the defendant must show factual and concrete prejudice as a result of the delay, not merely speculative prejudice. ⁹⁹

The consequences of a deprivation of the speedy trial right are severe: dismissal of all charges. This preclusive effect is permanent. ¹⁰⁰

The constitutional right to a speedy trial attaches at the time the person is "accused" of a crime, namely, at the time of arrest or indictment, whichever occurs first. ¹⁰¹ There have been attempts to assert the speedy trial right when the "delay" in the prosecution occurred before accusation. The Supreme Court has rejected the argument that the speedy trial right is violated by a pre-accusation delay but has held that due process does provide some protection. ¹⁰² The chances of successfully asserting a violation of due process on the grounds of pre-accusation delay, even when substantial prejudice can be shown, appear to be remote. ¹⁰³ To have criminal charges dismissed

[Page 589]

on the grounds that pre-arrest or pre-indictment delay violated due process, the accused must establish that the prosecutor intentionally delayed the indictment to gain a tactical advantage and that the accused incurred substantial prejudice as a result. ¹⁰⁴

The constitutional right to a speedy trial is not abrogated just because the accused is in jail in another jurisdiction. ¹⁰⁵ The state is required to make a diligent, good-faith effort to bring the accused to trial. ¹⁰⁶

Today, the constitutional right to a speedy trial is of little consequence in most states. Virginia, like most states, has speedy trial statutes ¹⁰⁷ that impose much more stringent standards, especially in terms of the length of delay that is permissible, than the constitutional right imposes. ¹⁰⁸

10.503 The Statutory Standards. The Virginia Code has two provisions that are relevant to the speedy trial problem. The first provision states that a person in jail on a criminal charge must be released if a presentment, indictment, or information is not found or filed before the end of the second term of court at which he or she is held to answer. ¹⁰⁹ The discharge, however, is not required when: (i) material witnesses for the Commonwealth have been enticed or kept away or are prevented from attending because of "sickness or inevitable accident"; or (ii) proceedings on the competency of the accused to stand trial have commenced. ¹¹⁰ Failure to indict by the end of the second term is not an absolute bar to prosecution; the remedy is discharge from custody. ¹¹¹ This objection must be raised before trial. ¹¹²

The second statutory provision parallels the constitutional speedy trial right. ¹¹³ The accused must be forever discharged unless the "trial is com-menced": ¹¹⁴

[Page 590]

1.	Within five months of the finding of probable cause at the preliminary hearing in district court if the accused is held "continuously in custody"; 115 or
2.	Within nine months of the finding of probable cause at the preliminary hearing in district court if the accused is not held in custody but has been recognized for his or her appearance. If a defendant is not held continuously in custody, the nine-month period applies. 116

Whether the time awaiting trial counts against the speedy trial clock or is tolled depends on a variety of factors. If no preliminary hearing was held or if it was waived, the five and nine months run, respectively, from the date the indictment or presentment is found or the date the accused is arrested. ¹¹⁷ An arrest on an indictment or warrant is deemed to have occurred only when the indictment or warrant is served or executed upon the accused. ¹¹⁸ A trial is deemed commenced when jeopardy attaches or when a plea of guilty or nolo contendere is tendered. ¹¹⁹ Where a case is on appeal in circuit court from a misdemeanor conviction in district court, the five- and nine-month limits run from the date of conviction in district court.

The periods are tolled when the delay is caused by:

1. The accused's insanity or confinement in a hospital for care and observation;

[Page 591]

2.	A Commonwealth's witness being enticed or kept away or prevented from attending by sickness or inevitable accident; 120
3.	The granting of a separate trial by persons jointly indicted with others for a felony;
4.	A continuance granted on the motion of the accused or his or her counsel, or by the accused's or counsel's concurrence in such a motion by the Commonwealth, or by the failure of the accused or counsel to make timely objection to such a motion by the Commonwealth;
5.	An escape from jail or failure to appear by the accused;
6.	The inability of a jury to agree on a verdict; or
7.	Natural disaster, civil disorder, or act of God. 121

The time during the pendency of an appeal must not be counted. ¹²² Likewise, the period between a nolle prosequi of one indictment and reindictment should be disregarded. ¹²³ The speedy trial statute does not apply to retrials following appellate reversal. ¹²⁴

The Virginia Supreme Court held that the enumeration of sufficient justifications for failure to bring the person to trial was not intended to exclude all other reasons in pari ratione, for example, the time spent by a court in ruling on defense motions, such as motions to suppress. ¹²⁵ The court

[Page 592]

has also ruled that the time is tolled while a defendant is unavailable to be tried. ¹²⁶ It is implicit that a defendant is not "held continuously in custody" within the meaning of section 19.2-243 of the Virginia Code while he or she is taken into federal custody pursuant to a federal ad prosequendum writ "on loan" to federal authorities for another trial. ¹²⁷ Once the terms of the writ are fulfilled, the defendant's unavailability ends, and the statutory clock re-sumes. ¹²⁸ On the other hand, the Commonwealth bears the responsibility to bring the case to trial in a timely fashion, and a defendant can remain silent without waiving his or her right to a speedy trial. ¹²⁹

Defense motions do not automatically toll the running of the stat-ute. ¹³⁰ For instance, delays caused by defense motions for a jury trial or separate trials on multiple charges do not toll the running of the statute. ¹³¹ However, a defendant's motion for a psychiatric examination that occasions delay must be subtracted from the speedy trial mandate even though the Commonwealth may also have caused a delay during all or a portion of the period. ¹³²

When defense counsel agrees to a trial date outside the speedy trial time limits, that action amounts to a continuance granted with the concurrence of the accused. ¹³³ The same result follows when the defendant acquiesces to a trial date beyond the statutory period, ¹³⁴ and when a defendant requests, agrees to, or acquiesces in an order that effectively continues a case,

[Page 593]

the speedy trial statute is tolled. ¹³⁵ The failure to object to a court's fixing of a trial date is the functional equivalent of failing to object to a continuance requested by the Commonwealth. ¹³⁶ There is no requirement that the defendant affirmatively agree to a trial date as long as the record indicates that the defendant was notified of the trial date and registered no objection. ¹³⁷ Therefore, the failure of counsel to affirmatively object to...