Sixth Amendment — Right to a Speedy Trial

Amdt6.2.1 Overview of Right to a Speedy Trial

The Constitution protects against “undue delay” in criminal prosecution through a series of component measures rather than through one overarching requirement of timely prosecution.¹ These serial constitutional protections, in turn, are supplemented by statutory protections.² First, the Due Process Clause provides a basic safeguard against extreme government delay in bringing criminal charges against a suspect,³ although statutes of limitations are generally thought to supply the principal protection against such delays.⁴ The Speedy Trial Clause of the Sixth Amendment is the next component: as interpreted by the Supreme Court, it applies to delay between the initiation of criminal proceedings (as marked by an arrest or formal charge) and conviction (whether by trial or plea).⁵ Statutory time limits bolster and, at least in the case of the federal Speedy Trial Act of 1974,⁶ largely eclipse, by their greater protections, the constitutional right to a speedy trial.⁷ Upon conviction, the constitutional speedy trial right detaches, leaving due process and applicable criminal procedure statutes or rules to guard against unreasonable delay in imposing a sentence.⁸

In its landmark 1972 decision Barker v. Wingo, the Supreme Court called the speedy trial protection a “vague concept,” about which “[i]t is impossible to do more than generalize” and which necessitates a “functional analysis.”⁹ Under Barker, to determine whether a delay between accusation and conviction violates the speedy trial right, the Supreme Court applies a balancing test that considers the following four factors: (1) the length of the delay; (2) the reason for the delay; (3) whether and to what extent the defendant asserted his speedy trial right; and (4) the prejudice to the defendant caused by the delay.¹⁰ This balancing test requires courts to evaluate speedy trial claims on an ad hoc basis and does not prescribe rigid time limits on the length of criminal proceedings.¹¹ The Speedy Trial Act, in contrast, sets forth two clear time limits: an information or indictment must follow within 30 days of arrest, and a trial must begin within 70 days of indictment or arraignment.¹² The Act, however, exempts numerous types of delay from these time limits, including continuances that serve the ends of justice and delays resulting from pre-trial motions.¹³

The remedy for a violation of a defendant’s Sixth Amendment speedy trial right is dismissal of the charges with prejudice.¹⁴ Courts do not have discretion to fashion less drastic remedies after finding a violation of the Speedy Trial Clause.¹⁵

Amdt6.2.2 Historical Background on Right to a Speedy Trial

Safeguards against delay in criminal prosecution predate the Magna Carta and the abandonment of trial by ordeal in England around 1215.¹ In 1166, the Assize of Clarendon described a procedure for obtaining speedy justice for accused persons arrested in a place not scheduled to receive an imminent judicial visit.² Later, Sir Edward Coke listed speed as one of the three essential qualities of justice in his Institutes, a work widely read by lawyers in the American colonies.³ Thus, the right to a speedy trial appears to have been well-established during the colonial period, and several state constitutions already guaranteed the right at the time of the Sixth Amendment’s ratification in 1791.⁴

Amdt6.2.3 When the Right to a Speedy Trial Applies

Until 1971, the Supreme Court did not clearly delineate the stage of the criminal proceeding to which the speedy trial right applied. In the 1957 case Pollard v. United States,¹ the Court assumed, without deciding, that the right applied to the sentencing phase of a criminal prosecution.² In a series of subsequent cases over the ensuing decade, the Court articulated the primary purposes of the speedy trial right,³ held that the right applied against the states through the Due Process Clause of the Fourteenth Amendment,⁴ and determined that the right applied to defendants already serving prison sentences in another jurisdiction.⁵ These cases did not, however, determine which events during a criminal prosecution trigger the speedy trial right and which events extinguish it.⁶

The Court resolved the front end of this ambiguity in the 1971 case United States v. Marion, where it held that the speedy trial right does not attach before the initiation of criminal proceedings against the accused through an arrest or formal charge.⁷ In Marion, the defendants complained of a three-year delay between the commission of the charged crimes and the issuance of an indictment against them.⁸ The government apparently had knowledge of the criminal conduct during those three years but did not commence the prosecution earlier because of limited resources.⁹ Although the Court recognized that pre-charge delays might cause prejudice to the defense, it determined that other considerations compelled the conclusion that the speedy trial right does not protect against such delays.¹⁰ These considerations included the text of the Sixth Amendment itself,¹¹ the history of the speedy trial right and ensuing legislative interpretations of it,¹² and the right’s purpose of holding in check the attendant “evils” of public accusation.¹³ The Court also emphasized that other sources of law apart from the Sixth Amendment—namely, statutes of limitations and the Due Process Clause—protect against excessive pre-charge delays.¹⁴

Then, in the 2016 case Betterman v. Montana, the Court held that the speedy trial right “detaches” (i.e., no longer applies) upon conviction,¹⁵ thereby resolving the question left open sixty years earlier in Pollard.¹⁶ The defendant in Betterman argued that a fourteen-month delay between his conviction by guilty plea and the imposition of his sentence violated his right to a speedy trial.¹⁷ In rejecting the claim, the Court reasoned that the speedy trial right serves primarily to safeguard the presumption of innocence and that this purpose does not comport with applying the right to post-conviction proceedings such as sentencing.¹⁸ The Court also noted, much as it did in Marion, that other sources of law protect against undue delay at the sentencing stage, including rules of criminal procedure and the constitutional right to due process.¹⁹

Amdt6.2.4 Early Doctrine on Right to a Speedy Trial

Before the 1972 Barker v. Wingo¹ decision, where the Supreme Court established a four-factor balancing test for determining when the speedy trial right is abridged,² the Court decided speedy trial cases under more general notions of the bounds of appropriate delay in prosecution. In Pollard v. United States in 1957, the Court held that a two-year delay between conviction and sentencing—resulting from the trial court’s failure to impose a sentence in the defendant’s presence at the original sentencing hearing—did not violate the Sixth Amendment because the delay was not “purposeful or oppressive.”³ The Court used a similar touchstone in the 1966 decision United States v. Ewell, which concerned a nineteen-month delay between initial arrest and a hearing on a second indictment.⁴ The delay was caused largely by the defendants’ successful motion to vacate their convictions by guilty plea.⁵ The Court rejected the defendants’ speedy trial claim due to a lack of “oppressive or culpable government conduct.”⁶ The Court also reasoned that to hold a delay caused by a successful defense appeal unconstitutional would undermine the general principle that a defendant may be “retried in the normal course” of events following the reversal of a conviction.⁷

Aspects of the reasoning in Pollard and Ewell would carry through the landmark Barker case and into the Supreme Court’s modern speedy trial jurisprudence. In both pre-Barker cases, the Court emphasized that speedy trial claims required ad hoc analysis of the particular circumstances surrounding a delay in prosecution,⁸ a point that Barker would go on to reiterate more emphatically.⁹ Perhaps more importantly, the Ewell Court attributed three primary purposes to the Speedy Trial Clause: “to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.”¹⁰ In subsequent cases, including Barker, the Court would rely on this passage as the definitive formulation of the Speedy Trial Clause’s purposes.¹¹

In another line of pre-Barker cases that remains important, the Court rejected the contention that prosecutors could, after charging a defendant, leave the charges dormant for extended periods of time free of the strictures of the Speedy Trial Clause. In Klopfer v. North Carolina in 1967, a state prosecutor invoked a procedure called “nolle prosequi with leave” to defer proceedings on an indictment for criminal trespass until an uncertain future date when the prosecutor might restore the case for trial.¹² The Court held that such “indefinite[ ] prolonging” of criminal prosecution violated the defendant’s speedy trial right.¹³ Similarly, in two cases from 1969 and 1970, the Court held that the government may not defer proceedings against a charged defendant until his release from incarceration in another jurisdiction;¹⁴ rather, the charging authority must make a “diligent and good-faith effort to secure the presence of the accused from the custodial jurisdiction and afford him a trial” upon his request, notwithstanding the inter-jurisdictional cooperation that such a trial might require.¹⁵ In short, the government may not evade the limitations of the Speedy Trial Clause by deferring already-filed charges until the occurrence of some later event.

Amdt6.2.5 Modern Doctrine on Right to a Speedy Trial

In Barker v. Wingo, the Supreme Court refined its approach to the Speedy Trial Clause by adopting a balancing test to govern claims of unconstitutional delay in prosecution.¹ Willie Mae Barker, the defendant in the case, was convicted of murder.² He contended that a five-year delay between his indictment and the start of his trial violated his speedy trial right.³ The prosecution’s decision to put off Barker’s trial until it had obtained a conviction against his co-defendant—a necessary witness in the case against Barker—accounted for most of the delay, as it took six trials over more than four years to convict the co-defendant on all counts.⁴ Barker did not object to this prosecution tactic until roughly three-and-a-half years of the eventual five-year delay had elapsed.⁵

In considering Barker’s claim, the Supreme Court (in a majority opinion joined by seven justices, with the remaining two concurring and no dissents) began by acknowledging that its prior cases did not establish a clear test for determining when a delay in prosecution violated the Speedy Trial Clause.⁶ The Court then rejected two proposed “rigid” approaches to applying the Clause that would have provided bright-line rules for prosecutors and lower courts. First, the Court declined to set out a time period—a “specified number of days or months”—within which a defendant must be offered a trial.⁷ To establish such a rule, the Court reasoned, would have required the Court to step improperly beyond its adjudicative function and into the realm of “legislative or rulemaking activity.”⁸ Second, the Court rejected a so-called “demand-waiver” approach, pursuant to which a defendant’s failure to demand a trial would have been construed as a waiver of the speedy trial right.⁹ The Court concluded that this approach conflicted with its jurisprudence on the waiver of constitutional rights, under which a finding of waiver requires a showing of the defendant’s “intentional relinquishment or abandonment of a known right” rather than a presumption based on the defendant’s mere inaction.¹⁰

Having rejected these “rigid” approaches, the Court settled upon a “balancing test” that would consider “the conduct of both the prosecution and the defendant.”¹¹ The test that the Court announced consists of four factors: “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”¹² Importantly, the Court acknowledged that this test provides only loose guidance to lower courts, which must apply and weigh the four factors “on an ad hoc basis” to resolve individual speedy trial claims.¹³ The balancing approach does not, in other words, offer the sort of clear rule of decision that either of the two “rigid” approaches (rejected by the Barker Court) would have supplied.¹⁴

Applying the four factors in its test to the five-year delay in Barker’s case, the Court called the case “close” but held that the delay did not violate the Speedy Trial Clause.¹⁵ The first two factors—the delay’s length and the reason for it—favored Barker’s claim.¹⁶ Five years was an “extraordinary delay,” the Court determined, and, in particular, the prosecution’s objective of presenting the co-defendant’s testimony at Barker’s trial did not justify the four years it took to accomplish.¹⁷ But the other two factors—prejudice and the defendant’s assertion of the speedy trial right—went against Barker and outweighed the first two factors.¹⁸ Barker did not claim that the delay significantly impaired his defense at trial, and the Court thus concluded that he suffered little prejudice.¹⁹ Most important, the Court determined that Barker’s failure to demand a speedy trial during most of the delay showed that “he definitely did not want to be tried” and that he had made a strategic choice to “gambl[e]” that his co-defendant would be acquitted.²⁰ This last consideration appeared essentially outcome-determinative: a defendant who did not want a speedy trial, the Court reasoned, would not be deemed to have suffered a deprivation of his speedy trial right absent “extraordinary circumstances,” such as the receipt of incompetent legal advice.²¹

Although the Court has generally refrained from reviewing lower court applications of the ad hoc balancing analysis it prescribed in Barker, a group of later opinions, discussed below, clarifies Barker’s guidance on how to apply each of the four factors.²²

Amdt6.2.6 Length of Delay and Right to a Speedy Trial

The length of delay factor works as a “triggering mechanism” for the remainder of the balancing test.¹ In Barker, the Court made clear that courts need not reach the other three factors absent a post-accusation delay that is long enough to be “presumptively prejudicial.”² The Court held that the delay in Barker’s case satisfied this standard,³ but the Court did not set a concrete time frame for presumptively prejudicial delay.⁴ Rather, the Court said that the inquiry would depend upon the nature of the criminal charges.⁵ The less serious the charges, the less a court should tolerate delay.⁶ In later cases from 1986 and 1992, the Supreme Court held presumptively prejudicial a 90-month post-arrest delay in a prosecution for possession of firearms and explosives⁷ and an eight and one-half year post-indictment delay in a prosecution for conspiracy to import and distribute cocaine.⁸ In the latter case, the Court observed without comment that “the lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.”⁹ If a delay is presumptively prejudicial, the court must proceed to weigh its excessive length—that is, “the extent to which [it] stretches beyond the bare minimum needed to trigger” the full Barker analysis—along with the other three factors of the balancing test.¹⁰

Time that elapses between the formal dismissal and reinstatement of charges does not count toward the length of delay for speedy trial purposes, so long as the defendant is not subject to any restraint on liberty during the interim period.¹¹ Thus, the Supreme Court held in 1982 that the passage of four years between the dismissal of military charges and a later federal grand jury indictment for the same alleged crimes, during which time the defendant was not subject to restraints, did not support a claim for a violation of the Speedy Trial Clause.¹² Similarly, in a 1986 case where the trial court dismissed an indictment before trial, leaving the defendants free of restraints, the Supreme Court held that the duration of the government’s successful appeal of the dismissal did not count towards the defendants’ speedy trial claims.¹³ In contrast, the duration of an interlocutory appeal¹⁴ that proceeds while an indictment or restraints on liberty (such as bail or incarceration) remain in place does count toward the length of delay factor under Barker.¹⁵

Amdt6.2.7 Reason for Delay and Right to a Speedy Trial

The Barker Court divided government justifications for delay into three categories and explained how each category should impact the balance of factors.¹ First, “[a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.”² Second, “[a] more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government . . . .”³ Third, “a valid reason, such as a missing witness, should serve to justify appropriate delay.”⁴ The five-year delay at issue in Barker’s case (caused primarily by the government’s choice to postpone trial until the conclusion of proceedings against the co-defendant) appeared to fall into the second category.⁵ Accordingly, the Court seemed to count the reason for delay moderately in Barker’s favor, but the factor did not carry enough weight—not even when combined with the “extraordinary” length of delay—to overcome Barker’s failure to assert adequately his speedy trial right and the lack of specific prejudice to his defense.⁶

In a 1992 case, the Supreme Court articulated the “reason for delay” inquiry as “whether the government or the criminal defendant is more to blame for th[e] delay.”⁷ Later cases also clarified the interplay between the reason for delay factor and the other Barker factors and indicated that, in some circumstances, the reason for delay could do much to determine the outcome of the balancing test.⁸ Where the government causes delay on purpose to gain a trial advantage, a long delay will generally amount to a constitutional violation.⁹ Where the government bears no blame for a long delay—not even in the “more neutral” sense of negligence or crowded dockets—a constitutional violation likely does not exist absent a showing of specific evidentiary prejudice.¹⁰ In contrast, government negligence “falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution” and amounts to a constitutional violation, even without a showing of specific evidentiary prejudice, if it causes a delay that “far exceeds the [presumptive prejudice] threshold” and if the defendant did not exacerbate the delay through a failure to assert the speedy trial right.¹¹ Finally, delays caused by defendants or their counsel—regardless of whether counsel is appointed or privately retained—weigh against defendants and generally will not support a speedy trial claim.¹²

Amdt6.2.8 Assertion of Right to a Speedy Trial

The Supreme Court’s most extensive commentary on the third balancing factor came in Barker itself, where the defendant’s failure to assert his right to a speedy trial promptly and forcefully appeared to doom his claim in the eyes of the Court.¹ The Court made clear that a defendant’s failure to assert the right is not a prerequisite to a speedy trial claim.² Put differently, a defendant does not waive the right by failing to assert it.³ Moreover, the significance of a failure to assert the right depends on circumstance.⁴ A failure to object to delay for a compelling reason—such as representation by “incompetent counsel”—might not undermine a speedy trial claim,⁵ just as a pro forma objection will weigh less in the defendant’s favor than an objection made with “frequency and force.”⁶ In the final analysis, however, the Barker Court homed in on the defendant’s litigation strategy as the fulcrum of the inquiry under the third element: where the record shows that the defendant does not want a speedy trial, the Court reasoned, only on rare occasion will he be deemed to have been denied his right to a speedy trial.⁷ This analytical approach seemed to echo the Court’s earlier observation in Ewell that delay in prosecution often benefits the defendant.⁸

In the 1992 case Doggett v. United States, the Court clarified that failure to demand a speedy trial does not count against defendants who are unaware of the charges against them.⁹ In that case, the factual record indicated that the defendant did not know that he had been indicted on federal charges of narcotics distribution during the entirety of an eight-and-one-half year delay between the date of the indictment and the date authorities arrested him to face the charges.¹⁰ The Supreme Court reasoned that such ignorance of the proceedings neutralized the third factor in the balancing test;¹¹ accordingly, the Court proceeded to find a violation of the Speedy Trial Clause based on the interplay of the other three factors alone.¹²

Amdt6.2.9 Prejudice and Right to a Speedy Trial

Barker instructed courts to consider prejudice in terms of the three primary purposes of the speedy trial guarantee: (1) prevention of “oppressive pretrial incarceration;” (2) minimization of the “anxiety and concern” caused by criminal accusation; and (3) protection against “the possibility that the defense will be impaired” by delay (i.e., evidentiary prejudice).¹ Generally, the Court has emphasized evidentiary prejudice as the most consequential of the three types.² In Barker, for example, where the defendant had spent ten months in pre-trial detention and endured 4.5 years under the “cloud” and “anxiety” of pending murder charges (and could therefore establish prejudice of the first two types), the Court counted the prejudice factor against the defendant because he did not show that the delay actually damaged his defense.³

Multiple times the Court has said that a showing of evidentiary prejudice is not essential.⁴ Yet on one occasion, in the 1994 case Reed v. Farley, the Supreme Court made a statement directly to the contrary, declaring that a showing of evidentiary prejudice “is required” to show a speedy trial violation.⁵ That statement did not appear to constitute a binding holding: Reed dealt with the Speedy Trial Clause only in passing because the defendant did not actually press a constitutional speedy trial claim.⁶ Nonetheless, even though Reed probably does not establish that a speedy trial claim must include a showing of evidentiary prejudice to succeed, the case does underline the Court’s tendency to treat impairment to the defense as the key aspect of the prejudice prong and one of the most impactful considerations in the overall Barker analysis.⁷

The Supreme Court’s consistent emphasis on the significance of evidentiary prejudice, however, has, from the outset, included one subtle qualification: the damage that delay causes to the defense does not always lend itself to an affirmative showing.⁸ Thus, in Doggett, where government negligence delayed proceedings by at least six years but where the defendant failed to show any specific impairment to his defense, the Court weighed the prejudice factor in the defendant’s favor based on the presumption that such a long delay had hurt the defense case in ways that neither side could demonstrate.⁹ The Court stressed, however, that the presumption of evidentiary prejudice—as opposed to an affirmative showing of such prejudice—would support a speedy trial violation only in the case of particularly long delays¹⁰ and only where other factors also favored the defendant.¹¹