JurisdictionUnited States



According to the Supreme Court, a criminal defendant has three distinct interests in rapid disposition of criminal charges against him.2 First, "long delay will impair the ability of an accused to defend"3 himself. For example, evidence may be lost, memories may fade and witnesses may become difficult to locate. Second, rapid disposition will "minimize [the] anxiety and concern accompanying public accusation"4 and the other "vexations and vicissitudes of a pending criminal accusation."5 In this regard, the specter of criminal charges can affect an accused's education or employment, his ability to plan for the future, his financial situation, and his personal relationships, in addition to the psychic strain the accusation imposes. Third, in the case of a defendant held in custody pending trial, speedy disposition minimizes "undue and oppressive incarceration."6

Notably, society also has an interest in the speedy resolution of criminal cases. Both the deterrent and retributive purposes of the criminal law are better served, other things being equal, by quicker resolutions, as expressed by the aphorism "justice delayed is justice denied." Moreover, the government, which bears the burden of proof beyond a reasonable doubt, may also suffer the consequences of lost evidence resulting from the passage of time and, if a guilty defendant is not subjected to pretrial incarceration, the incapacitative purpose of the criminal law is frustrated.

The law does not, however, rely solely on this shared interest in speed to provide rapid dispositions. Instead it provides specific rights to those facing or potentially facing criminal charges. The defendant's interest in a speedy disposition is protected at the constitutional level by the Speedy Trial Clause7 and by the Due Process Clause. In virtually all jurisdictions, that interest is also protected at the statutory level by speedy trial laws and statutes of limitation.8

The point of criminal accusation, either through arrest or issuance of a formal charge, is generally the key point for determining which of these protections apply. After accusation, protection comes primarily from the Speedy Trial Clause and speedy trial statutes; claims of undue preaccusation delay are based on the Due Process Clause and statutes of limitation.9 Each of these protections is discussed in turn below.

Before examining those rules in detail, a word of warning. Many factors contribute to delay in the resolution of criminal cases; without the addition of resources to the different parts of the criminal justice system, legal rules can only do so much to speed things up. With this in mind, Professor Anthony Amsterdam wrote that constitutional speedy trial law "bears the same relationship toward an expeditious administration of the criminal justice machinery that man's aspiration to the stars bears toward efficient conduct of the space program."10 Certainly, as a practical matter, statutory rules regarding expeditious resolution of criminal cases come into play more often than constitutional ones.11 Moreover, even the statutory rules can be stretched to accommodate long periods before a criminal case reaches trial.12 Thus, while the law governing speedy dispositions is not insignificant, one must not be overly sanguine about its power. In this context, "speedy" is a relative term.13

§ 8.02


[A] Overview

Application of the Sixth Amendment right "to a speedy trial," which has been incorporated against the states through the Due Process Clause,15 presents questions regarding when the right applies, how to measure whether it has been violated, and the remedy for a violation. The answers the Court has provided to the first and last of these questions — the right attaches when a defendant is charged, and the remedy for a violation is dismissal of the charges with prejudice — are clear and straightforward enough but, at least with regard to the remedy, somewhat controversial. The Court's method for determining whether a speedy trial violation has occurred — the four-part balancing test of Barker v. Wingo discussed below — is less straightforward in application and, of these issues, provokes the most controversy. The Court's answers to each of these questions are addressed in the succeeding subsections.

[B] When the Right Attaches

The Sixth Amendment speedy trial right "has no application until the putative defendant in some way becomes an accused."16 This means that only the time after the defendant is arrested or subjected to a formal charge — through indictment, information or the like — will count in measuring whether a defendant's case has been resolved expeditiously enough to satisfy the Sixth Amendment.17 Preaccusation delay is irrelevant. The time after indictment or other formal accusation does "count" for Sixth Amendment purposes, however, even if the defendant is at liberty and is ignorant of the charges.18

In United States v. Marion,19 the Court, per Justice White, raised four distinct arguments for focusing on the point of accusation. First, the Court placed primary reliance on the language of the Sixth Amendment, which refers to "criminal prosecutions" and "the accused." Second, the Court contended that legislation implementing state constitutional speedy trial provisions20 "plainly reveal[s] the view that these guarantees are applicable only after a person has been accused of a crime." Third, the Court contended — less persuasively — that the purposes of the Sixth Amendment's speedy trial guarantee21 provide "little support" for applying the provision prior to the point of accusation.22 Finally (and in clear tension with its third argument of minimal relevant harm from preaccusation delay), the Court noted that since both statutes of limitation and the Due Process Clause of the Fifth Amendment protect the defendant from the harm of undue preaccusation delay, "[t]here is thus no need to press the Sixth Amendment into service" for this purpose.23

[C] Determining Speedy Trial Right Violations: Barker v. Wingo

[1] Overview

In Barker v. Wingo,24 the Court established the test for judging claims of Sixth Amendment speedy trial violations. Justice Powell's opinion for a unanimous Court described the right as "generically different from any of the other" constitutional rights that protect a criminal defendant. In addition to the government's independent interest in a speedy trial, the Court noted that sometimes a defendant will want to delay his trial, rather than accelerate it, and "most importantly, the right to speedy trial is a more vague concept than other procedural rights. It is . . . impossible to determine with precision when the right has been denied."

Relying on this last assertion, the Court rejected firm approaches for adjudicating speedy trial claims — such as quantifying the right into a specific number of days or months, or restricting the right to circumstances in which the defendant had demanded a speedy trial. Instead, the Court adopted a four-factor balancing test "in which the conduct of both the prosecution and the defendant are weighed." The four factors are: (i) the length of the delay, (ii) the reason for the delay, (iii) the defendant's assertion of his right and, (iv) prejudice to the defendant. In adopting this test, the Court eschewed bright-line rules for case-by-case adjudication, with the consequent costs and benefits of that kind of legal standard.25

[2] The Barker Factors

[a] Length of the Delay

The length of the delay is a threshold issue. As the Court put it in Barker, "[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance."26 If delay is too short to be "presumptively prejudicial" — to take an extreme example, the defendant claims one week after his arrest that his trial has been unconstitutionally delayed — then consideration of the other factors is unnecessary. Once the delay is long enough to cross the "presumptively prejudicial" threshold, then the delay becomes one of the factors in the four-part balancing test. In that context, of course, the longer the delay the more it weighs towards a finding of a Sixth Amendment violation.

Two points should be noted about this threshold inquiry. First, although the Court has refused to define precisely how long it takes for "presumptive prejudice" to occur, the Court has noted, with apparent approval, that "[d]epending on the nature of the charges, the lower courts have generally found postaccusation delay 'presumptively prejudicial' at least as it approaches one year."27 Second, the term "presumptively prejudicial" was an unfortunate choice of words, in that it suggests that, once the threshold is crossed, some degree of prejudice — the fourth Barker factor — will be presumed. In fact, that is not necessarily the case. "Presumptive prejudice" carries no automatic weight in the prejudice inquiry, it is just a way of saying that the delay is long enough to trigger the full Barker inquiry.28

[b] Reason for the Delay

There are, of course, myriad reasons for trial delay. Under the Barker test, "'different weights' are to be 'assigned to different reasons' for delay."29 Who should be blamed, and hence what weight the delay should be given, is "[t]he flag all litigants seek to capture."30 At one extreme lies bad-faith prosecutorial delay (e.g., stalling to gain a tactical advantage). At the other extreme lies diligent prosecution delayed, for example, by defense motions or the search for a defendant in hiding. Official negligence and court congestion are "more neutral" reasons that weigh "less heavily," but nonetheless count against the government.31

[c] Defendant's Assertion of the Right

Because there are many cases in which the defendant may actually prefer delay — perhaps because he is at liberty, perhaps...

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