Chapter § 5.9

• Jurisdiction: Oregon

§ 5.9 SPEEDY TRIAL

Article I, section 10, of the Oregon Constitution includes the language that "justice shall be administered . . . without delay." The Oregon Supreme Court has interpreted this provision to provide a "speedy trial" guarantee analogous, but not identical, to the speedy-trial guarantee of the United States Constitution. The court has "an obligation to address state constitutional law claims before federal ones." State v. Krieger, 306 Or App 71, 75, 473 P3d 550 (2020), rev den, 367 Or 535 (2021) (quoting State v. Velykoretskykh, 268 Or App 706, 707 n 2, 343 P3d 272 (2015)).

It means that "there shall be no unreasonable delay after a formal complaint has been filed against the defendant" in criminal cases. State v. Vawter, 236 Or 85, 90-91, 386 P2d 915 (1963). This "command is addressed to the prosecution and to the court." State v. Harberts, 331 Or 72, 83, 11 P3d 641 (2000). It "serves both a defendant's interest in a speedy trial and the public's interest in the prompt administration of justice." Harberts, 331 Or at 83. "[I]n the absence of a presumptively prejudicial delay, a defendant must demonstrate actual prejudice to warrant the extreme remedy of dismissal of charges." State v. Bayer, 229 Or App 267, 280, 211 P3d 327, rev den, 347 Or 446 (2009). Speculative prejudice is insufficient. State v. Russum, 265 Or App 103, 113, 333 P3d 1191, rev den, 356 Or 575 (2014).

Oregon courts have inverted the order of analysis in speedy-trial claims. They typically address the Article 1, section 10, issues before issues arising from statutory provisions. Bayer, 229 Or App at 277. See ORS 135.745-135.752 (speedy trial). This is because a defendant is entitled to a dismissal with prejudice if the defendant prevails on a speedy-trial claim raised under Article I, section 10, or the Sixth Amendment. See Bayer, 229 Or App at 277. Thereafter, the court should first "'determine the relevant amount of delay by subtracting from the total delay any periods of delay that defendant requested or consented to." State v. Glushko, 351 Or 297, 305, 266 P3d 50 (2011). Second, the court should determine whether the delay attributed to the state is reasonable by examining "all the attendant circumstances' of the delay." Glushko, 351 Or at 315-16 (quoting State v. Johnson, 339 Or 69, 88, 116 P3d 879 (2005)). "'Attendant circumstances' include 'the circumstances that cause[d] the delay.'" State v. Cupp, 257 Or App 652, 657, 307 P3d 531 (2013) (quoting Johnson, 339 Or at...