Speedy Trial (Update 1)

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SPEEDY TRIAL (Update 1)

Since the original publication of this Encyclopedia, the Supreme Court has decided only one case of note regarding the constitutional right to a speedy trial. In United States v. Loud Hawk (1986) the Court concluded that a delay of ninety months did not entitle the defendant to relief. The Court analyzed the case under the four-factor analysis of barker v. wingo (1972)—length of delay, reason for delay, defendant's assertion of the right, and prejudice to the defendant. The Court concentrated on the first two of these factors in concluding that the right to a speedy trial had not been violated.

Beginning with the length of delay, the Court concluded that a substantial period during which the indictment was dismissed should be excluded when considering the speedy trial claim. It followed the reasoning used in united states v. macdonald (1982) that once an indictment has been dismissed the defendant is no longer subject to public accusation; thus, a major concern of the speedy trial right is eliminated. The government's publicly expressed desire to prosecute Loud Hawk if successful on its appeal of the dismissal did not constitute public accusation for purposes of triggering the protection of the right to a speedy trial. Additionally, Loud Hawk had been unconditionally released, and during the ninety-month period, he was without any restraint on his liberty.

The Court concluded that the reason for most of the delay—an interlocutory appeal by the government—contributed little weight to the defendant's claim. Given the important public interest in appellate review, delay for this purpose is generally justified. Moreover, both the strength of the government's legal position and the importance of the issue further justified the delay. Finally, the Court concluded that the portion of the delay caused by the defendant's own interlocutory appeals did not count toward substantiating a violation of the speedy trial right. Typically, the defense would be required to show either unreasonable or unjustifiable delay by the prosecution or appellate courts before delays occasioned by its own appeals would count in the balance. No reason existed to count such delay in Loud Hawk's case because his appeals were frivolous.

The scarcity of constitutional decisions on the right to speedy trial reflects the fact that the federal Speedy Trial Act of 1974 and similar legislation in many states provide far more protection than does the Constitution. Dismissals for violation of the Sixth Amendment right to a speedy trial are also rare. Loud Hawk illustrates the major reasons for this result. The test fashioned by the Supreme Court is entirely too indeterminate and manipulable. The four Barker factors will rarely cut in the same direction. Often the defendant cannot show that he sought a speedy trial; defendants, especially those at liberty pending trial, usually have an interest in delay. When the factors are mixed, the courts generally avoid the draconian result of dismissal of the prosecution with prejudice, which is the only permissible remedy under the Sixth Amendment. Probably for the same reason, courts have resolved many of the subsidiary issues under the four-part test in favor of the government, as the Court did in Loud Hawk, by concluding that lengthy delay during appellate review should not be given any effective weight.

Occasionally a case is dismissed where a defendant has suffered substantial prejudice because of delay or where the government has acted in bad faith. However, for the vast bulk of the cases, the speedy trial statutes, despite their weaknesses, remain the primary guardians of the defendant's and the public's right to speedy justice.

Robert P. Mosteller
(1992)