RESOURCE MATERIAL SERIES No. 55

AN OVERVIEW OF THE RIGHT TO SPEEDY TRIAL IN
CRIMINAL CASES IN THE UNITED STATES
Rya W. Zobel*
I. CONSTITUTIONAL MANDATE
Article 37 of the Constitution of Japanand the Sixth Amendment to theConstitution of the United Statesguarantee to all criminal defendants theright to a speedy and public trial. It is inboth documents a right granted to thedefendant; it cannot be invoked by theprosecution. In neither is the right in any
way detailed or defined. That is, theConstitutions do not explain what
constitutes “speedy’’or rather, what periodof time is too long, nor do they describe theconsequences for exceeding that undefinedtime.
In the United States, relatively few
Supreme Court cases have interpreted thisConstitutional provision. However, in 1967
the Court established that the right to a
speedy trial is “fundamental”, Klopfer v.
North Carolina, U. S. 213. 223 (1967), andin 1972, it set out the criteria by which theassertion of the right is to be judged, Barker
v. Wingo, 407 U. S. 514 (1972). It isinteresting to review the facts of the Wingocase as they explain the diifficulties
inherent in fashioning a rule for all cases.
On July 20, 1958, an elderly couple wasbeaten to death in a rural county in
Kentucky. Two suspects, Silas Manningand Willie Barker, ultimately the petitioner
in the Supreme Court, were arrested
shortly thereafter and were indicted on
September 15, 1958. Two days later,counsel was appointed for Barker. For* U.S. District Court judge for the District ofMassachusetts; Director, Federal Judicial Centre,
United States of America.

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reasons not clear in the record,theCommonwealth did not try the defendants
jointly and chose to proceed first against
Manning on the theory that once convicted,
he could be required to testify against
Barker. The theory encountered numerous
difficulties in practice. Manning’s first trial
ended in a hung jury; the second resulted
in conviction, but reversal on appeal; thethird, again conviction and again reversal
on appeal; the fourth once more a hung jury.
Finally, on the fifth try, in March 1962, theCommonwealth succeeded in convicting
Manning of murdering one victim, and on
the sixth attempt, the second. It was
December 1962. In the meantime Barker’s
trial, which had initially been scheduled
to start in September 1958, was continued
again and again. Although he had been
held in jail after his arrest, he was releasedon bail in June 1959, ten months after his
arrest and he remained at large until his
conviction and sentence.
Barker’s counsel did not object to thefirst eleven continuances; his objection to
the twelfth and his motion to dismiss theindictment were overruled; he again failed
to object to numbers 13 and 14, but did
assert his right when the Commonwealthsought twice more thereafter to postpone
his trial in March and June 1963. He was
finally tried and convicted in October 1963,
more than five years after the murder andthe filing of the indictment against him.
On appeal from that conviction heargued, among other things, that his rightto a speedy trial had been violated and thatthe conviction should therefore be set aside
and the indictment, dismissed. He lost the111TH INTERNATIONAL SEMINAR
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argument in the courts of Kentucky and in
the lower federal courts. The Supreme
Court agreed to consider his case.
Incidentally, the delay from conviction to
the hearing and decision of the case in theSupreme Court was due entirely to
Barker’s delay in requesting review by theSupreme Court - nearly eight years.
Justice Powell, writing for a umanimouscourt, pointed out that the right to a speedy
trial, although a fundamental right, isnevertheless different from the others in
the Constitution. It is, of course, a right ofthe defendant, but, unlike the others, it also
protects a societal interest in the swift
disposition of criminal cases. Backlogs in
the court’s docket enable defendants tomanipulate the system by, for example,
negotiating more lenient plea. From thestandpoint of the trial itself, time plays
tricks with witness’ memories. Defendants
released on bail for long periods of time may
pose a danger to the community if they
commit additional crimes. On the other
hand, lengthy pretrial detention is not only
unfair to the defendant, but also very
expensive.
Finally, the Supreme Court points out,“the right to a speedy trial is a more vague
concept than other procedural rights” (atp.521). It is vague because there exists nofixed time after which the right has beendenied. The violation of the right also
necessarily, that is, for lack of alternative
remedies, leads to an unsatisfactory andsevere remedy, namely dismissal of theindictment. Given the inherent lack ofclarity, the Supreme Court declines toprescribe any rules of thumb, but rather
instructs that trial courts are to balance
the conduct of the prosecution and defence,case by case. In so doing, they are toconsider the length of the delay (one monthclearly not enough, five years too long), thereason for the delay (the convenience of theprosecutor does not justify delay, the illnessof a crucial witness might), the defendant’s
assertion of their right (Barker failed toprotest the postponements of his trial for
more than three years), and prejudice tothe defendant from the delay (thedisappearance of crucial defence witnesses
may so hobble the defence that relief isappropriate). Barker, however, was not so
fortunate. The delay was, in the Court’s
words, “extraordinary”, but Barker had not
only failed to object to the postponementsof his trials over a very long time, he clearly
did not want a speedy trial. When he
finally did object, the delay was excusable
in that it was caused by the illness of animportant witness. Finally, Barker could
show no harm from the long wait. Suchwas the law until Congress passed the
Speedy Trial Act of 1974.
II. STATUTE AND LEGISLATIVEHISTORY
The Speedy Trial Act of 1974 wasprompted by a number of concerns, someoverlapping, some conflicting. The Eighth
Amendment to our Constitution prohibits
the imposition of “excessive” bail. As apractical matter, most persons accused of
an offence are released pending their trial.
As the United States experienced an evergreater increase in violent crimes and drug
offences, the criminal justice systembecame overburdened, the courts’ dockets
became overcrowded and, given the rightto bail, large numbers of persons accusedof crimes remained on the street. The
crowded dockets in the courts not only
delayed trials, but the delay, in turn, often
hampered the efforts of the prosecution.
Wi t n e s s e s ’ m e m o r i e s d i m i n i s h e d ,witnesses disappeared, evidence was lost.
This allowed defendants to negotiate more
effectively for pleas of guilty to lesser
offences and to lower sentences. At thesame time, defendants awaiting trial
demonstrably often continued theirantisocial activities. Thus the defendant’s

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RESOURCE MATERIAL SERIES No. 55
right to a speedy trial also became thepublic’s right. The Supreme Court in the
Barker case referred to the “societal
interest in providing a speedy trial which
exists separate from, and at times in
opposition to, the interests of the accused”(at p.519).
Congress was clearly aware of all ofthese cross-currents as it began to address
what had become very real problems forthe society and the criminal justice system.
The first Speedy Trial Bill was introduced
into to the United States Senate in 1970
by Senator Sam Ervin Jr., the Chairmanof the Senate Judiciary Committee’s
Subcommittee on Constitutional Rights.
Many state legislatures had alreadyadopted their own versions of speedy trial
mandates. While early federal efforts
failed, in 1973, Senator Ervin reintroduced
a bill, S. 754,93d Cong., 2d Sess., 120 Cong.
Rec. 24668 (1974), that eventually was
negotiated, with some changes, to become
the Speedy Trial Act of 1974. Echoing theSupreme Court’s view, Senator Ervindescribed the bill as a balance between theneeds of society and the Sixth Amendment
right to a speedy and fair trial. He
summarized the purpose of the bill as
follows:
Unfortunately, while it is in the public
interest to have speedy trials, theparties involved in the criminal process
do not feel any pressure to go to trial.
The court, defendant, his attorney, andthe prosecutor may have different
reasons not to push for trial, but they
all have some reason. The overworked
courts, prosecutors, and defence
attorneys depend on delay in order tocope with their heavy caseloads. The
end of one trial only means the start ofanother. To them, there is little
incentive to move quickly in what they
see as an unending series of cases. The
defendant, of course, is in no hurry for352

trial, because he wishes to delay his dayof reckoning as long as possible. 120
Cong. Rec. 41618 (1974).
Congress, when considering the bill,was
confronted by several major policy choices.
The first was what the time limit should
be for bringing a criminal matter to trial.
Should there be one timeline - from arrest
to trial - or a multifaceted system thatmight take into account the way in which
the process normally proceeds, from arrestt o i n d i c t m e n t b y a g r a n d j u r y, t oarraignment, pretrial motion practice, trial
and, upon conviction, sentence? That is,should the statute fix one period or a seriesof separate periods for each part of theprocess? Should the time periods be fixed
irrevocably by statute or should the courts
be given a measure of flexibility? Finally,
one of the most contentious issues was
sanctions. It was well recognized that the
only effective sanction for violating speedy
trial constraints is the dismissal of theindictment, indeed dismissal withprejudice. That means, of course, that adefendant, no matter how guilty, would
truly get off on a technicality. The
defendant could not be tried then, or ever,for the offence for which s/he had been
indicted, simply because the system had
failed to bring him/her to trial on time.
From the point of view of a trial judge,
who has to work with the limitations
imposed by the statute, the Congress did amasterful job of resolving these, at thetime, highly contentious matters. It chosea series of time limits for the several partsof a criminal case, beginning the count withthe arrest and indictment. It fixed ultimate
limits for each period, and ultimately forthe entire case, but it added flexibility bya device called “excludable time”. Certain
time periods did not count toward the totalof 70 days from arrest to conviction. It gave
full discretion to the trial judge to impose
the ultimate sanction of dismissal, with or111TH INTERNATIONAL SEMINAR
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without prejudice, depending on thecircumstances of the case and the reasonsfor the violation of the Act. Finally, theCongress allowed for a lengthy period oftransition before the statute would takeeffect to allow the courts, the litigants andthe lawyers ample time to plan and adapt
to the new regime.
III. SUMMARY OF PROVISIONS OFSTATUTE
It is important to remember that theS p e e d y Tr i a l A c t w a s d e s i g n e d t oimplement, enforce and define theConstitution’s Sixth Amendment right toa speedy trial. It provides specificity where
none existed before. It does not, however,supplant or diminish the requirements of
the Sixth Amendment. Thus one canimagine a situation where compliance with
the Act is achieved while the Constitution
is nevertheless violated, as might happen
if excessive excludable time orders areentered over the defendant’s objections.
The following is a brief outline of the Act.
First, the Speedy Trial Act specifies that
any information or grand jury indictment
must be filed within thirty days of an arrestor service of a summons (see 18 U.S.C.
§3161(b)). Note that this requirement, andindeed the entire statute, apply only tofederal prosecutions. Subject only to thesame Sixth Amendment constraints
applicable in the federal courts, the states
retain sovereignty over their judicial
processes. In fact, a defendant arrested byfederal authorities is not subject to the Act
if turned over to state authorities. Only if
the defendant is held in federal custody, oris served a federal arrest warrant, does the
Act take over (see United States v. Beede,
974 F.2d 948, 949 (8th Cir. 1992)).
Conversely, a defendant held in federal
custody while awaiting state charges is not
subject to the time clock of the federal
Speedy Trial Act (see United States v.

Johnson, 815 F.2d 309, 312 (5th Cir. 1987)).
It is also the case that a formal arrest or
summons is necessary to trigger the Act.
The temporary seizure of a person, without
formal charges, does not trigger the time
limitations under the provisions of the Act(see United States v. Sayers, 698 F.2d 1128,
1131 (11th Cir. 1983): temporarily taking
a defendant into custody or control while
photographing or fingerprinting, and thenreleasing to defendant, does not trigger the
Act’s time clock; see also United States v.
Davis, 785 F.2d 610, 614-15 (8th Cir. 1986);
United States v. Walker, 856 F.2d 26, 27 (5thCir. 1985)).
Second, after being charged with acrime, the defendant must be brought totrial within seventy days from the filingdate of the indictment or information, or
the date the defendant first appears before
a judicial officer, whichever is later (see 18
U.S.C. § 3161(C)(1)). Within that timeframe, the statute nevertheless provides
the defendant with a guaranteed time ofthirty days to prepare. Thus, the trial may
not commence less than thirty days after
the defendant first appears in court
through his or her attorney (see 18 U.S.C.
§ 3161(C)(2)). The beginning of the trial
means the start of the jury selection process
in a given trial (see United States v. A-A-A
Electronic. Co., Inc., 788 F.2d 242, 246 (4thCir. 1986); United States v. Howell, 719 F.2d
1258, 1262 (5th Cir. 1983)). As noted
earlier, these exceedingly rigid and shorttime periods are much tempered by thedevice of excludable time, which in practice,provides great flexibility.
Third, “excludable time” means nothing
more than time that is not counted. The
statute is specific and clear about thecontingencies that stop the count and thelength of the time out (see 18 U.S.C. §3161(h)). It lists four basic categories ofdelays that stop the clock: 1) delays frompretrial motions and interlocutory appeals;

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RESOURCE MATERIAL SERIES No. 552) delays relating to the defendant’scondition or actions, 3) delays caused by
the unavailability of witnesses ordefendants; and 4) delays granted “in theinterest of justice”, when the court
determines that the ends of justiceoutweigh the interest of the defendant or
the public in a speedy trial.
Virtually every case calls for counsel toseek infomation, challenge the indictment
or shape the case to his/her client’s
advantage. Thus counsel will file motions
for discovery, to dismiss, to sever and thelike. These motions are generally
necessary and not trivial. They take time
to consider and therefore give rise to
excludable time. Interestingly, the statuteseemingly allows unlimited time from filingto hearing, but limits the time for deciding
to 30 days. The case law has, however, built
into the unlimited portion a requirementof reasonableness (see Henderson v, UnitedStates, 476 U.S. 321, 326 (1986)).
Several provisions toll the time fordelays that relate to the defendant,
including an agreement by the defendant
to defer prosecution or delays resulting
from a mental examination of the
defendant. So also a delay due to thedefendant’s mental incompetence or
physical ailment is deemed reasonable andconsequently excludable. Time may evenbe excludable if needed by one defendant
over the objection of another.
Delays caused by the absence of an
essential witness to the trial should, anddo, give rise to excludable time. However,
the government must always exercise “duediligence” in making the witness available(see United States v. Barragan, 793 F.2d
1255 (11th Cir. 1986)). This provisionapplies with equal force to the defence.
Finally, the Court is empowered to grantdelays as the “ends of justice” require.

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Because this provision grants broad
discretion to the judge, s/he is required to
explain their reasons for any orders under
this section (see United States v. Jordan,
915 F.2d 563, 565 (9th Cir. 1990); UnitedStates v. Vasser, 916 F.2d 624 (11th Cir.
1990)). The Act sets forth four factors forcourts to consider when determining
whether to grant a continuance to serve theends of justice: 1) whether to grant acontinuance would make the continuationof the proceedings impossible or result ina miscarriage of justice; 2) whether the caseis so unusual or complex that the parties
could not reasonably prepare for trial
within the Act’s time limitation; 3) whether
the delay in filing an indictment is because
it was difficult for a grand jury to indictwith the time limits, including whether agrand jury is in session when the defendant
was arrested; and 4) the failure to grant acontinuance would deny the defendantreasonable time to obtain counsel, or time
for counsel to properly prepare for trial,
which may occur in very large complex
criminal cases.
Violations of any of the provisions of thestatute may lead to sanctions. As
mentioned earlier, the only possible andrealistic sanction is dismissal of the case.
The serious question then remaining iswhether the dismissal is to be with orwithout prejudice. Since the right to a
speedy trial is the defendant’s right, thestatute assumes implicitly that a defendantcannot violate the Act, and it provides noremedy against a defendant other thancontinuation of the criminal proceeding
against them. In deciding the severity ofthe sanction, the judge is to evaluate thematter according to three enumerated
factors: 1) the seriousness of the offence;2) the facts and circumstances of the casewhich led to the dismissal; and 3) the
impact of a reprosecution on the Act andthe administration of justice. As a matterof practical reality, the trial court has great

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discretion to dismiss a case with or without
prejudice, as the factors are fairly openended for the trial judge to use to determine
this.
The Act also requires that District
Courts adopt plans for prompt dispositionof criminal cases, including the formationof a working group consisting of the Chief
Judge, United States Attorney, the Federal
Public Defender, and other skilledindividuals from the criminal justicecommunity (see 18 U.S.C. § 3165). The
purpose of the group is not to develop its
own Speedy Trial Act, but to provide local
procedures to implemet an efficient court
system, taking into consideration the needsof the individual district court region. Since
the federal judicial system has 94 district
courts, and since each has a unique culture
and tradition, the working groups weremost useful in facilitating the transition to
the new system of counting in the several
courts. They enabled those who had to
implement this system to buy into it, andto gain a stake in making it succeed.
IV. SOME CONCLUSIONS
Several aspects of the Act are worth
noting specially. First, as described above,
Congress showed a concern for the trial
courts, not always present in legislation,that prescribe and proscribe the mannerin which the courts do their work. Bothhouses of Congress acknowledged that they
did not know the reasons for pretrial delay
in criminal cases, and both recognized thata speedy trial mandate, if it were to have
any teeth, would have a serious impact on
the courts and would severely test theirability to achieve compliance with theproposed statutory provisions. The Act as
passed, and all earlier versions, would
effectively give preferential treatment tocriminal cases by putting them always at
the head of the queue of a judge’s or a
court’s docket. Courts had to devise

mechanisms, perhaps change rules, toaccommodate this now expedited criminal
docket without delaying the disposition ofcivil cases. Congress was not alone in its
ignorance. Little research had been doneon these questions within or without the
judiciary.
Two responses emerged. First, full
implementation of the statute was delayed,
ultimately by nearly four years, to allow
the courts, indeed the criminal justicesystem as a whole, to prepare for theimpending change. Second, Congress tried
to foster knowledge and understanding of
the criminal justice process. Thus the Act
includes several provisions that require the
Courts to develop plans not only for
implementation, but also for the collectionof a wide range of information and statistics
about the administration of criminal justice
within each court. Much of the data to becollected was to inform the courts and, bymeans of periodic reports, Congress, about
the causes of pretrial delay, the cost ofcompliance with the Act, and the effects ofthe speedy trial provisions on the
management of the courts’ entire docket,
criminal and civil.
The courts did collect vast amounts ofdata and they did report to Congress.
However, not much use was made of thedata. The studies and insights to be
derived therefrom simply did notmaterialize. It is the case that
implementation of the Speedy Trial Act
requirements was, in the end, remarkably
uneventful. Perhaps because of the longtransition period, or because the courts had
to plan for implementation, trial judges,
prosecutors and defence counsels werequite ready to accept these newrequirements and to make the statutework. Indeed, the most interesting fact
about this piece of legislation is how quickly
and totally it was accepted by those mostaffected by it, and how well it has worked.

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One of the areas of concern and contention
had been the matter of sanctions. Yet
dismissals, particularly dismissals withprejudice, have been rare and with few
exceptions, the courts have managed todispose of criminal cases within the timeframes established by the Act,without
unduly delaying the civil docket. The
lesson I would draw from this experienceis that the judicial system, bound as it may
be to custom and unwilling to change, isnevertheless able to accommodate evenmajor adjustments if they are properly
managed and the goal is one the judges andlawyers accept.

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