AuthorOtano, Kayla Lasswell


As the legal maxim rings true, "justice delayed is justice denied." (1) The Magna Carta, one of the oldest sources of English and American jurisprudence and a seed of modern criminal procedure, (2) states the legal system "shall not ... deny or delay Justice and right, neither the end, which is Justice, nor the meane ... that is the law." (3) When the criminal justice process is delayed--as it often is from postponed and rescheduled proceedings--defendants and victims are subjected to stresses and anxieties. (4) Defendants face the possibility of "oppressive incarceration prior to trial, ... anxiety and concern accompanying public accusation," and the risk of inadequately defending their cases. (5) Since these stresses are a function of time, the Sixth Amendment of the United States Constitution, incorporated against the states through the Fourteenth Amendment, guarantees defendants the right to a speedy trial. (6)

Victims are another important "party" (7) in the trial proceedings subjected to different stresses and anxieties. (8) While the prosecutor represents the people, which includes the victim, the victim may feel like the only person who has "suffered emotionally, physically, psychologically and financially." (9) Victims' stresses are also a function of time as they wait to put the crimes behind them. (10) Since both defendants and victims have an interest in efficiency, it would appear they desire the same thing: to avoid delay. Surprisingly, these interests are often diametrically opposed to one another. (11)

By way of an example, imagine a criminal trial in federal court is set to begin promptly in the morning. The judge sits at the bench, police officers and witnesses sit in the hallway, and everyone in the courtroom stands as the newly selected jury is ushered into the jury box. It appears everyone is ready to proceed with trial, but the defense attorney deploys his weapon of moving the court to grant a continuance. He tactically declines to assert the right to a speedy trial with the goal of ultimately winning the case, relying in part on time eroding the prosecutor's evidence against his client. He knows that over time evidence may disappear, witnesses may become unavailable to testify, and he can challenge the remaining witness' credibility as time blurs their memories. On the other side of the courtroom, the victim protests the delay. The victim is frustrated because after countless interviews with police, the prosecutor, and the victim's advocate, the case was supposed to be finally resolved that morning. The defense attorney, hiding his delay tactic, makes a boilerplate argument that the continuance is necessary to properly defend the case. A third person in the courtroom, the prosecutor, suspects the delay is unreasonable. The prosecutor is conflicted, wanting the defendant to have a fair trial, but also understanding how an eleventh-hour delay will alienate the victim and everyone else ready to proceed with trial. Considering all the facts, the arguments, and the applicable law, the judge weighs a multitude of factors outlined in 18 U.S.C. [section] 3161(h) and grants the continuance, giving the defendant a stern warning and a second chance to prepare. Everyone meets at the next court date, knowing all too well this process could repeat again and again. While justice is merely delayed for the defendant, it is denied for the victim with every delay.

For victims, efficient proceedings are especially important because "[v]ictims often suffer significantly from delays in the criminal justice system" (12) that was "designed to protect them." (13) Each delay continues the victimization. (14) Victims first suffer primary traumas when the crime occurs. (15) Then once the criminal justice system gets involved, victims are at risk of secondary traumas which are "compounded and exacerbated by long delays" and mistreatment by professionals. (16)

For a long time "[t]he criminal justice system ... functioned on the assumption that crime victims should behave like good Victorian children--seen but not heard." (17) The system failed to treat victims with human respect and decency and saw victims as an evidentiary means to a prosecutorial end. One victim advocate explained the all too common experience for victims of violent crime when the criminal justice system treated her like "a piece of evidence like a fingerprint or a photograph, but not as a feeling, thinking human being":

In 1988, I was raped by a brutal attacker. ... My subsequent experience with the criminal justice system left me feeling violated over and over again by placing greater value on the rights of the accused versus my rights. There were needless delays--three continuances. During this time, ... I figured I was going to get a trial. I deserved a trial. There were five victims. So to get prepared for this, I went to a victim's self-defense group and I practiced telling my story at these different group meetings so I was prepared for my time at the trial, which never did occur. I never got a trial. But each time it was scheduled, the day before or the day of it was canceled and put back another month or more. I cannot explain to you what that does to a victim but it definitely helps the defendant because some of these victims in this group of five were ready to pull out and say, "Never mind. Just forget it." That is what that does. (18) At the heart of this conflict is a disparity of rights. Defendants have many constitutional protections, and rightfully so. (19) The Sixth Amendment of the United States Constitution specifies, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." (20) The "speedy trial" doctrine is quintessential to American criminal law, with "its roots at the very foundation of our English law heritage." (21) For defendants, the stakes are high--the criminal justice system gives defendants great protection because "liberty itself may be at stake." (22) The duty of ensuring the Sixth Amendment right to a speedy trial rests with the prosecution to proceed diligently and the court to facilitate the proceedings; the right does not rest on the defense to request a speedy trial or do anything else to ensure the right. (23) Victims, on the other hand, are not mentioned in the United States Constitution. (24) Although victims have protections embedded in the Federal Rules of Criminal Procedure (25) and the Federal Rules of Evidence, (26) no protections address victims' rights to expediency in the same way the Sixth Amendment protects defendants. (27) And again, there is good reason for that. (28) The defendant is the one whose liberty is at stake and remains innocent until proven guilty, (29) and this Note does not advocate for making victims' rights equal to defendants' rights. But the scenario above demonstrates that something must be done to better protect victims' rights while respecting defendants' rights. When a party seeks a continuance in federal court, the judge must explain his or her reasoning for denying or granting the continuance considering many factors under 18 U.S.C. [section] 3161(h)(7)(B)--none of which directly address the victim. (30) This is how continuances can be used as weapons, which unfortunately results in revictimizing the victim.

Part I of this Note begins with a brief history of the victims' rights movement, outlining how the movement has slowly gained momentum in the federal courts and has quickly progressed at the state level. Part II explains the relative nature of defendants' right to a speedy trial, the test established in the landmark case Barker v. Wingo, (31) and how defense attorneys can manipulate the nuances of the right by delaying the case without violating the right to a speedy trial. Part III analyzes the two steps of victim trauma, beginning with the primary trauma of crime victimization followed by secondary trauma and revictimization during the criminal justice process. Part IV addresses the countervailing interests of the defendant, the victim, and the prosecution. Finally, Part V suggests adding the victims' "right to proceedings free from unreasonable delay" from the Crime Victims' Rights Act 18 U.S.C. [section] 3771, as a factor the district judge will consider when deciding to grant or deny a continuance under 18 U.S.C. [section] 3161. Adding this factor would help avoid mere delays of justice from developing into complete denials of justice.


  1. The President's Task Force of 1982

    The victims' rights movement began in the 1970s in response to victim marginalization. (32) A decade later, the President's Task Force on Victims of Crime in 1982 ("Task Force") found the criminal justice system had become imbalanced, and "[t]he victims of crime ha[d] been transformed into a group oppressively burdened by a system designed to protect them." (33) The most pressing burden was that victims were often uninformed about proceedings and therefore not present for them. (34) If they were present, their concerns often went unheard. (35) To redress these imbalances, the Task Force called for multiple reforms, the most essential of which was to implement the rights "to be present and to be heard at all critical stages of judicial proceedings." (36) To enact these newly established rights, the Task Force recommended that the prosecution be responsible for informing victims of their case proceedings and giving victims a chance to enter victim-impact evidence at bail, sentencing, and parole hearings. (37) This reform increased victims' control by giving them an "independent participatory role" in all critical stages of their cases. (38)

    The Task Force expressed the importance of victims participating in criminal cases both for successful convictions in individual cases and, on a larger scale, the prevention of future crime. (39) Successful prosecution may...

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