Although the Sixth Amendment right to a speedy trial is considered to be a fundamental right that applies in both federal and state courts, there are relatively few cases dealing with the topic. It was not until 1972, in the leading case of Barker v. Wingo, that the Supreme Court first attempted to establish the standards with which to judge speedy trial claims. An analysis of the right to speedy trial must begin with an analysis of this decision.
In Barker the Court pointed out several features of this right that distinguish it from the other procedural rights. First, society’s interest in bringing criminal cases to trial is distinct from the defendant’s interests. Delay enhances a defendant’s bargaining position and for a defendant on pretrial release, the delay increases the risk of reoffending. Second, being denied a speedy trial does not necessarily disadvantage the defendant. It will benefit the defendant when the delay undermines the state’s case as, for example, when a prosecution witness dies, making it a common defense tactic. Third, the speedy trial right is more vague than other procedural rights in the sense that it is ‘‘impossible to determine with precision’’ when it has been violated. Finally, compared with other procedural violations, such as the denial of right to counsel where the remedy would be a new trial, the only possible remedy for a violation—dismissal of the criminal charges—is quite drastic.
The Court considered, but rejected, two competing approaches. Establishing a specific period of time, such as six months, was rejected as a constitutional standard, because the right cannot be quantified, although the Court noted that this rule-making approach is appropriate for legislatures and state courts. At the same time, the Court rejected a ‘‘demand waiver’’ approach in which the defendant was obligated to demand a trial and failure to do so constitutes a waiver of the delay. The Court was unwilling to permit the waiver of a fundamental right through inaction. Moreover, inasmuch as a speedy trial is the government’s responsibility, it was inappropriate to put on the defendant the entire burden of demanding one. Having rejected these approaches, the Court went on to establish a Balancing Test.
In each case the Court should consider four factors, none of which is a necessary or sufficient condition to finding a speedy trial violation. The first factor is the length of delay. The length of time that must pass before the delay is considered problematic depends on the circumstances, including the nature of the crime. The more complex a case is the more delay can be expected. The second factor is the reason for the delay. The prosecutor’s intentional delay for the purpose of pressuring a defendant not on pretrial release to plead guilty, for example, should weigh heavily against the state. A more neutral reason such as crowded court dockets should be given less weight, but in light of the government’s responsibility to provide a speedy trial, should still be considered. Some reasons, such as the illness of a necessary witness should excuse some amount of delay. Although the Court decided not to make a speedy trial violation depend solely on whether the defendant made a demand for a trial, the Court found that a demand was sufficiently relevant to make it the third factor. The defendant’s demand for a trial should weigh heavily in favor of finding a speedy trial violation. The failure to demand a trial will make it difficult for a defendant to successfully claim a speedy trial violation. The fourth factor is the matter of prejudice or harm to the defendant that results from any delay. The most serious prejudice is found in cases where the delay undermines the defendant’s case. But it is also found where the defendant is incarcerated during the delay and where mental and emotional stress and other problems result from the delay.
In applying the Balancing Test to the facts of the Barker case the Court found that the delay was substantial: more than five years elapsed between Barker’s arrest and trial. However, only a small portion of this delay could be classified as justifiable. Balanced against the substantial delay and its problematic justification, the Court found two factors, prejudice and demand, weighed more heavily in the government’s favor. Barker was incarcerated for ten months, only small portion of the five-year period, and there was no evidence that the delay otherwise resulted in prejudice. Most important was the fact that Barker’s lawyer failed to demand a trial until very late in the period, after the government moved for eleven continuances. This suggested that Barker hoped to gain from the delay. In ruling against Barker the Court held that in cases such as this, where the defendant’s failure to demand a trial indicates that he did not want one, violation of the speedy trial right would be found only in extraordinary circumstances, something that did not exist in this case.
In the relatively few speedy trial cases decided subsequent to Barker, the Court has applied the same Balancing Test. The only significant modification is found in the 1992 case of Doggett v. United States. In this case, which involved a delay of more than eight years between indictment and arrest, the Court held that with a lengthy delay prejudice might be presumed.
In light of the uncertainties with applying the Balancing Test, most jurisdictions have enacted speedy trial statutes to address the problem of pretrial delay. Typically, these statutes specify that unless the trial must begin within a specified period of time, 180 days, for example, from arrest for formal charges, the criminal charges must be dismissed. The time period set out in these statutes offers the precision that the Barker test lacks, but in practice these statutes do not provide most protection for defendants because typically they include an array of excuses for the delay. If the delay is excused under the statute, the defendant’s only recourse is to make a speedy trial claim under Barker.
STEVEN B. DOW
References and Further Reading
- Allen, Darren, Note: The Constitutional Floor Doctrine and the Right to a Speedy Trial, Campbell Law Review 26 (2004): 101–122.
- Elmore, Christopher S, Note: Glover v. State: A Misinterpretation and Misapplication of the Barker Speedy Trial Balancing Test Results in the Weakening of a Criminal Defendant’s Right to a Prompt Trial, Maryland Law Review 62 (2003): 573–598.
- LaFave, Wayne R, Jerold H. Israel, and Nancy J. King. Criminal Procedure. 4th ed. St. Paul: Thomson/West, 2004.
Cases and Statutes Cited
- Barker v. Wingo, 407 U.S. 514 (1972)
- Doggett v. United States, 505 U.S. 647 (1992)
- Klopfer v. North Carolina, 386 U.S. 213 (1967).
- United States Constitution, Amendment VI
See also Bill of Rights: Structure