Modern Doctrine on Right to a Speedy Trial

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

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

1: Barker, 407 U.S. at 530 ( “The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.” ).
2: Barker v. Wingo, 407 U.S. 514, 517–18 (1972).
3: Id.
4: Id. at 516–17.
5: Id. at 517.
6: Id. at 516 ( “[I]n none of these [speedy trial] cases have we attempted to set out the criteria by which the speedy trial right is to be judged.” ).
7: Id. at 523.
8: Id.
9: Id. at 525 ( “The demand-waiver doctrine provides that a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded a trial. Under this rigid approach, a prior demand is a necessary condition to the consideration of the speedy trial right.” ).
10: Id. at 525–26 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
11: Id. at 530.
12: Id.
13: Id.
14: See Id.
15: Id. at 533–34.
16: Id.
17: Id. at 534.
18: Id.
19: Id. ( “[P]rejudice was minimal. Of course, Barker was prejudiced to some extent by living for over four years under a cloud of suspicion and anxiety. Moreover, although he was released on bond for most of the period, he did spend 10 months in jail before trial. But there is no claim that any of Barker’s witnesses died or otherwise became unavailable owing to the delay.” ).
20: Id. at 535–36.
21: Id.
22: See Vermont v. Brillon, 556 U.S. 81, 91 (2009) (noting that “the balance arrived at [by lower courts under Barker] in close cases ordinarily would not prompt this Court’s review” but deeming it necessary nonetheless to correct a state court’s “fundamental error in its application of Barker” ).