The Ins and Outs, Stops and Starts of Speedy Trial Rights in Colorado-part I

• Publication year: 2002
• Pages: 115
• Citation: Vol. 31 No. 7 Pg. 115

31 Colo.Law. 115 Colorado Lawyer 2002.

2002, July, Pg. 115. The Ins and Outs, Stops and Starts of Speedy Trial Rights in Colorado-Part I

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115

Vol. 31, No. 7, Pg. 115

The Colorado Lawyer
July 2002
Vol. 31, No. 7 [Page 115]

Specialty Law Columns
Criminal Law Newsletter
The Ins and Outs, Stops and Starts of Speedy Trial Rights in Colorado--Part I
by Patrick Furman

This column is sponsored by the CBA Criminal Law Section. It features articles written by prosecutors, defense lawyers and judges to provide information about case law legislation, and advocacy affecting the prosecution, defense and administration of criminal cases in

Colorado state and federal courts.

Column Editors:

Leonard Frieling, a criminal defense attorney in private practice, Boulder - (303) 449-0092; Morris Hoffman, a judge for the Second Judicial District Court, Denver

About The Author:

Pat Furman is a Clinical Professor of Law in the Legal Aid & Defender Program at the University of Colorado School of Law - (303) 492-8126.

This two-part article discusses the constitutional right to a speedy trial and the basics of the speedy trial statute.

The right to a speedy trial is one of the cornerstones of the American criminal justice system. The underlying goals of the speedy trial requirement are justice and fairness. Both the public and accused are more likely to get justice if a dispute is resolved in a timely fashion, with the innocent exonerated and the guilty punished. Delay can hamper the pursuit of justice because memories may fade and evidence may disappear. The requirement of a speedy trial also acts as a check on government power. People cannot be held in custody indefinitely; the government must provide the accused with his or her day in court in a timely fashion.

The right to a speedy trial is a personal and fundamental right. The Sixth Amendment to the U.S. Constitution; § 16, Article II, of the Colorado Constitution; Colorado Revised Statutes ("CRS") § 18-5-401; and Colorado Rules of Criminal Procedure ("C.R.Crim.P.") 48 all guarantee criminal defendants a speedy trial. The Colorado statute and rule are premised on constitutional guarantees and are intended to render them more effective. Failure to comply with speedy trial requirements results in the dismissal of charges.

The purpose of this two-part article is to review the constitutional and statutory right to a speedy trial, and to discuss the case law interpreting that right. Prosecutors, defense counsel, and judges all have roles to play in ensuring that the right to a speedy trial is enforced.

This Part I discusses the constitutional right to a speedy trial and begins the discussion of the statutory right, covering the topics of the rule itself and the extension, waiver, and tolling of the statutory right. Part II, to be published in the August 2002 issue, will address other issues that arise under the speedy trial statute, including delays caused by appellate proceedings, the interaction between the right to a speedy trial and the right to the effective assistance of counsel, and delays that are attributable to actions by the prosecution or the court.

The Constitutional Right To a Speedy Trial

The U.S. and Colorado Constitutions contain virtually identical speedy trial provisions. The Sixth Amendment to the U.S. Constitution provides in relevant part: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. . . ." Section 16, Article II, of the Colorado Constitution provides in relevant part: "In criminal prosecutions the accused shall have the right to . . . a speedy public trial. . . ." Thus, the analysis of speedy trial issues under the U.S. and Colorado Constitutions is the same.1

A defendant who believes his or her constitutional right to a speedy trial has been violated must raise the issue prior to the commencement of trial.2 Failure to raise an objection prior to the commencement of trial constitutes a waiver of the constitutional right to speedy trial.3 It is the defendant's burden to establish that the constitutional right to a speedy trial has been violated.4

The defendant's constitutional speedy trial right starts to run from the date the defendant falls into the status of "an accused."5 A defendant has been "accused," and the constitutional right to a speedy trial attaches, once the defendant is formally accused by a charging document, such as a criminal complaint.6 (As discussed below, the statutory right to a speedy trial starts to run at the time of arraignment.) The constitutional right to a speedy trial has no set time period within which a trial must occur. Accordingly, the determination of whether a defendant's constitutional speedy trial right has been violated must be made on a case-by-case basis.7

The Four Factors in the
Constitutional Analysis

There are four factors, none of which is dispositive,8 that a trial court should consider in resolving the defendant's motion to dismiss based on the constitutional right to a speedy trial: (1) the length of the delay; (2) the reasons for the delay; (3) if, and when, the defendant asserted a demand for a speedy trial; and (4) whether the delay has caused prejudice to the defendant.9

The Length of the Delay: The U.S. and Colorado Constitutions do not guarantee a trial immediately on apprehension.10 Instead, the Constitutions guarantee a trial that is both speedy and consistent with the court's business.11 No specific time period resolves the speedy trial question; whether a specific delay violates a defendant's constitutional rights depends on the facts of each case.12

The Reasons for the Delay: Where the delay is attributable either in whole or in part, to the defendant, appellate courts are more likely to find that the constitutional right to a speedy trial has not been denied.13 Conversely, when the delay is not attributable to the defendant, and particularly when the delay is attributable to the prosecution, appellate courts are more likely to find that there has been a violation of the constitutional right to a...