Criminal Law

A Criminal Defendant’s Right to a Speedy Trial

By Micah Schwartzbach, Attorney
The Constitution—and other laws—are supposed to prevent delays that hurt the defense.

The Sixth Amendment to the U.S. Constitution says that all criminal defendants “shall enjoy the right to a speedy and public trial.” State constitutions also guarantee speedy trials, as do statutes.

Of course, what qualifies as “speedy” in the legal world might seem slow in day-to-day life.

Constitutional Right

In a 1972 case—Barker v. Wingo, 407 U.S. 514—the U.S. Supreme Court held that a delay of over five years between arrest and trial didn’t violate the defendant’s Sixth Amendment right to a speedy trial. In that case, a murder prosecution, the Court found that the defense’s case didn’t suffer because of the delay and that the defendant didn’t even want a speedy trial.

The Barker case established a “balancing test”—rather than some kind of clear timeline—for determining whether a delay is too long. The balancing test involves the following factors.

Length of the delay. How long is reasonable depends in part on how serious the charge is. As the Supreme Court put it, more delay can be tolerated for a “serious, complex conspiracy charge” than for “an ordinary street crime.”

Reason for the delay. Again, specifics matter. A judge will be much more likely to find a violation of the Sixth Amendment speedy-trial right if the government has stalled in order to hurt the defense’s case rather than to search for a critical witness.

Asserting the right. The defense will have a better chance at winning a speedy-trial challenge if it asserted the right early and repeatedly, as the case was dragging on.

“Prejudice” to the defense. Whether the defense can show that it suffered some kind of harm because of a delay is critical. For example, a defendant who can show that the wait has led to the loss of evidence may well have a strong argument. Helpful witnesses having forgotten critical information over the span of time could constitute a significant evidence loss.

Statutory Right

The federal government and a number of state legislatures have decided not to leave speedy-trial issues to potentially murky balancing tests. Instead, they have enacted laws that set explicit time frames.

In federal court, the Speedy Trial Act (STA) establishes deadlines. In most instances, the STA requires that the government file an indictment or information within 30 days of the defendant’s arrest. And trial must normally begin within 70 days of the filing of charges or the defendant’s appearance before a judicial officer in the relevant court, whichever is later. (18 U.S.C. § 3161 (2016).)

Even statutes, though, aren’t always straightforward. For instance, in determining the time within which charges must be filed or a trial must start, the STA excludes delays resulting from various factors, like:

  • pretrial motions
  • an essential witness being unavailable, and
  • in many instances, charges being dismissed and refiled.

(18 U.S.C. § 3161 (2016).)

Violation of the STA’s time limits can lead to dismissal of charges. Whether the prosecution is allowed to re-charge the defendant depends on the judge’s evaluation of considerations that include:

  • the “seriousness of the offense”
  • the circumstances leading to the dismissal, and
  • the “administration of justice.”

(18 U.S.C. § 3162 (2016).)

Questions for Your Attorney

An experienced attorney should be the one to explain the law that applies to your situation and advise you about your course of action. Among the questions that might be relevant are the following.

  • Can you forfeit the right to a speedy trial, including by clearly waiving it or by failing to bring a particular kind of motion?
  • Can you argue that a delay violates the federal constitution, the state constitution, and statutory law?
  • Is it in my best interest for the case to move quickly? Slowly? At a typical pace?
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