RIGHT TO A SPEEDY AND PUBLIC TRIAL
Source and Rationale.
The Magna Carta declared “[w]ee shall not . . . deny or delay Justice and right, neither the end, which is Justice, nor the meane, whereby we may attaine to the end, and that is the law.”14 Much the same language was incorporated into the Virginia Declaration of Rights of 177615 and from there into the Sixth Amendment. The right to a speedy trial is a right of an accused, but it serves the interests of defendants and society alike. The provision is “an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself.”16 But on the other hand, “there is a societal interest in providing a speedy trial which exists separate from and at times in opposition to the interests of the accused.” Persons in jail must be supported at considerable public expense and often families must be assisted as well. Persons free in the community after arrest may commit other crimes, lengthy intervals between arrest and trial may promote “bail jumping,” and growing backlogs of cases may motivate plea bargaining that does not always match society’s expectations for justice. And delay may retard the deterrent and rehabilitative effects of the criminal law.17
Application and Scope.
“The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution.” So finding, the Supreme Court held in the 1967 case of Klopfer v. North Carolina that the right to a speedy trial is one of those “fundamental” liberties that the Due Process Clause of the Fourteenth Amendment makes applicable to the states.18 But beyond its widespread applicability in state and federal prosecutions are questions of when the right attaches and detaches, when it is violated, and how violations may be remedied.
The timeline between the commission of a crime and its trial may include an extended period for gathering evidence and deciding to commence a prosecution. Prejudice that may result from delays between discovering a crime and completing its investigation, or between discovering sufficient evidence to proceed against a suspect and instituting proceedings, is guarded against primarily by statutes of limitation, which represent a legislative judgment with regard to permissible periods of delay.19 The protection afforded by the speedy trial guarantee of the Sixth Amendment “is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution.”20 Nevertheless, invocation of the right need not always await indictment, information, or other formal charge but can begin with the actual restraints imposed by arrest if those restraints precede the formal preferring of charges.21 In two cases involving both detention and formal charges, the Court held that the speedy trial guarantee had been violated by states that brought criminal charges against persons who were already incarcerated in prisons of other jurisdictions when the states that brought the criminal charges had ignored the defendants’ requests to be given prompt trials and had made no effort through requests to the prison authorities of the other jurisdictions to obtain custody of the prisoners for purposes of trial.22 But an individual’s speedy trial rights can be at issue even when he is not subject to detention and it is uncertain whether the government will ever pursue further prosecution. Thus, a state practice permitting a prosecutor to take nolle prosequi with leave, which discharged an indicted defendant from custody but left him subject at any time thereafter to prosecution at the discretion of the prosecutor, was condemned as violating the guarantee of a speedy trial.23
The Court has, however, distinguished the concluding phase of a criminal prosecution—or the period between conviction and sentencing—from earlier phases involving (1) the investigation to determine whether to arrest a suspect and bring charges and (2) the period between when charges are brought and when the defendant is convicted upon trial or a guilty plea.24 In Betterman v. Montana, the Court held that the constitutional guarantee of a speedy trial “detaches” once the defendant is convicted and, thus, does not protect against delays in sentencing.25 The Court reached this conclusion, in part, by analogizing the speedy trial right to other protections that cease to apply upon conviction.26 The Betterman Court’s conclusion was also based on originalist reasoning, noting that when the Sixth Amendment was adopted, the term “accused” implied a status preceding conviction, while the term “trial” connoted a discrete event that would be followed by sentencing.27 Practical considerations also informed the Court’s conclusion. In particular, the Betterman Court raised concerns about the potential “windfall” that defendants would enjoy if the standard remedy for speedy trial violations—namely, dismissal of the charges—were to be applied after conviction.28 Finally, the Court, relying on the federal government’s and states’ practices in implementing the speedy trial guarantee, observed that the federal Speedy Trial Act and “numerous state analogs” impose precise time limits for charging and trial, but are silent with respect to sentencing, suggesting that historical practice was consistent with the Court’s interpretation of the scope of the Speedy Trial Clause.29 At the same time, the Court did not view the reliance on plea agreements, instead of trials, in the contemporary criminal justice system as requiring a different outcome, noting that there are other protections against excessive delays in sentencing available to defendants, including the Due Process Clause and Federal Rule of Criminal Procure 32(b)(1).30
When the Right is Denied.
“The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.”31 No length of time is per se too long to pass scrutiny under this guarantee,32 but neither does the defendant have to show actual prejudice by delay.33 The Court, rather, has adopted an ad hoc balancing approach. “We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”34
The fact of delay triggers an inquiry and is dependent on the circumstances of the case. Reasons for delay will vary. A deliberate delay for advantage will weigh heavily, whereas the absence of a witness would justify an appropriate delay, and such factors as crowded dockets and negligence will fall between these other factors.35 It is the duty of the prosecution to bring a defendant to trial, and the failure of the defendant to demand the right is not to be construed as a waiver of the right.36 Yet, the defendant’s acquiescence in delay when it works to his advantage should be considered against his later assertion that he was denied the guarantee, while the defendant’s responsibility for the delay would preclude a claim altogether. A delay caused by assigned counsel should generally be attributed to the defendant, not to the state. However, “[d]elay resulting from a systemic ‘breakdown in the public defender system’ could be charged to the State.”37 Finally, a court should look to the possible prejudices and disadvantages suffered by a defendant during a delay.38
“The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the letter de cachet. All of these institutions obviously symbolized a menace to liberty. . . . Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.”39
The Supreme Court has cited many civic and process-related purposes served by open trials: they help to ensure the criminal defendant a fair and accurate adjudication of guilt or innocence; they provide a public demonstration of fairness; they discourage perjury, the misconduct of participants, and decisions based on secret bias or partiality. Open trials educate the public about the criminal justice system, give legitimacy to it, and have the prophylactic effect of enabling the public to see justice done.40 Though the Sixth Amendment expressly grants the accused a right to a public trial,41 the Court has found the right to be so fundamental to the fairness of the adversary system that it is independently protected against state deprivation by the Due Process Clause of the Fourteenth Amendment.42 The First Amendment right of public access to court proceedings also weighs in favor of openness.43
The Court has borrowed from First Amendment cases in protecting the right to a public trial under the Sixth Amendment. Closure of trials or pretrial proceedings over the objection of the accused may be justified only if the state can show “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”44 In Waller v. Georgia,45 the Court held that an accused’s Sixth Amendment rights had been violated by closure of all 7 days of a suppression hearing in order to protect persons whose phone conversations had been taped, when less than 2½ hours of the hearing had been devoted to playing the tapes. The need for openness at suppression hearings “may be particularly strong,” the Court indicated, because the conduct of police and prosecutor is often at issue.46 Relying on Waller and First Amendment precedent, the Court similarly held that an accused’s Sixth Amendment right to a public trial had been violated when a trial court closed jury selection proceedings without having first explored alternatives to closure on its own initiative.47
The Sixth Amendment right to a public trial and the First Amendment right to public access both presume that opening criminal proceedings helps ensure their fairness, but there are circumstances in which an accused might consider openness and its attendant publicity to be unfairly prejudicial. In this regard, the Sixth Amendment right of an accused to a public trial does not carry with it a right to a private trial. Rather, it is the accused’s broader right to a fair trial and the government’s interest in orderly judicial administration that are weighed in the balance against the public’s First Amendment right to access.
The Court has no preset constitutional priorities in resolving these conflicts. Still, certain factors are evident in the Court’s analysis, including whether restrictions on access are complete or partial, permanent or time-limited, or imposed with or without full consideration of alternatives. When the complete closure of the record of a normally open proceeding is sought, the accused faces a formidable burden. Thus, in Press-Enterprise Co. v. Superior Court the Court reversed state closure of a preliminary hearing in a notorious murder trial, a closure signed off on by the defendant, prosecution, and trial judge: “If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent, and second, reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.”48 In the earlier decision of Gannett Co. v. DePasquale, by contrast, the Court upheld a temporary denial of public access to the transcript of a hearing to suppress evidence, emphasizing that the Sixth Amendment guarantee to a public trial is primarily a personal right of the defendant, not an embodiment of a common law right to open proceedings in favor of the public,49 and further finding that any First Amendment right to access that might have existed was outweighed by the circumstances of the case.50 Other cases disfavoring open access have involved press coverage that was found to be so inflammatory or disruptive as to undermine the basic integrity, orderliness, and reliability of the trial process.51 Nevertheless, a First Amendment right to public access has found firmer footing over time, and the Court is reluctant to recognize any per se rules to wall off criminal proceedings, preferring instead that any restrictions be premised on particularized findings by the trial judge and an exploration of less restrictive options.52
- Ch. 40 of the 1215 Magna Carta, a portion of ch. 29 of the 1225 reissue, translated and quoted by E. COKE, THE SECOND PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 56 (Garland 1979 facsimile of 1642 ed.). See also Klopfer v. North Carolina, 386 U.S. 213, 223–24 (1967). The Klopfer Court cites an even earlier reference to a right to a speedy trial, dating from 1166. Id. at 223.
- 7 F. Thorpe, The Federal and State Constitutions H. DOC. NO. 357, 59 TH CONGRESS, 2 D SESS. 8, 3813 (1909).
- United States v. Ewell, 383 U.S. 116, 120 (1966). See also Klopfer v. North Carolina, 386 U.S. 213, 221–22 (1967); Smith v. Hooey, 393 U.S. 374, 377–379 (1969); Dickey v. Florida, 389 U.S. 30, 37–38 (1970).
- Barker v. Wingo, 407 U.S. 514, 519 (1972); Dickey v. Florida, 398 U.S. 30, 42 (1970) (Justice Brennan concurring). The Speedy Trial Act of 1974, Pub. L. 93–619, 88 Stat. 2076, 18 U.S.C. §§ 3161–74, codified the law with respect to the right, intending “to give effect to the sixth amendment right to a speedy trial.” S. REP. NO. 1021, 93d Congress, 2d Sess. 1 (1974).
- Klopfer v. North Carolina, 386 U.S. 213, 226 (1967).
- United States v. Marion, 404 U.S. 307, 322–23 (1971). Cf. United States v. Toussie, 397 U.S. 112, 114–15 (1970). In some circumstances, pre-accusation delay could constitute a due process violation but not a speedy trial problem. If prejudice results to a defendant because of the government’s delay, a court should balance the degree of prejudice against the reasons for delay given by the prosecution. Marion, 404 U.S. at 324; United States v. Lovasco, 431 U.S. 783 (1977); United States v. MacDonald, 456 U.S. 1, 8 (1982).
- United States v. Marion, 404 U.S. 307, 313 (1971). Justices Douglas, Brennan, and Marshall disagreed, arguing that the “right to a speedy trial is the right to be brought to trial speedily which would seem to be as relevant to pretrial indictment delays as it is to post-indictment delays,” but concurring because they did not think the guarantee violated under the facts of the case. Id. at 328. In United States v. MacDonald, 456 U.S. 1 (1982), the Court held the clause was not implicated by the action of the United States when, in May of 1970, it proceeded with a charge of murder against defendant under military law but dismissed the charge in October of that year, and he was discharged in December. In June of 1972, the investigation was reopened, but a grand jury was not convened until August of 1974, and MacDonald was not indicted until January of 1975. The period between dismissal of the first charge and the later indictment had none of the characteristics which called for application of the speedy trial clause. Only the period between arrest and indictment must be considered in evaluating a speedy trial claim. Marion and MacDonald were applied in United States v. Loud Hawk, 474 U.S. 302 (1986), holding the speedy trial guarantee inapplicable to the period during which the government appealed dismissal of an indictment, since during that time the suspect had not been subject to bail or otherwise restrained.
- United States v. Marion, 404 U.S. 307, 320, 321 (1971).
- Smith v. Hooey, 393 U.S. 374 (1969); Dickey v. Florida, 398 U.S. 30 (1970).
- Klopfer v. North Carolina, 386 U.S. 213 (1967) (the statute of limitations had been tolled by the indictment). In Pollard v. United States, 352 U.S. 354 (1957), the majority assumed and the dissent asserted that sentence is part of the trial and that too lengthy or unjustified a delay in imposing sentence could run afoul of this guarantee.
- Betterman v. Montana, 578 U.S. ___, No. 14–1457, slip op. at 3 (2016).
- Id. at 1, 3.
- Id. at 4 (noting, for example, that proof beyond a reasonable doubt is required for conviction, but sentencing factors need only be proved by a preponderance of the evidence).
- Id. at 4–5.
- Id. at 6–7.
- Id. at 7–8.
- Id. at 8–10 (noting, among other things that the Due Process Clause serves as a “backstop against exorbitant delay”). The majority in Betterman did not address how a due process claim for an allegedly excessive delay in sentencing should be analyzed.
- Beavers v. Haubert, 198 U.S. 77, 87 (1905) (holding that the guarantee could not be invoked by a defendant first indicted in one district to prevent removal to another district where he had also been indicted). A determination that a defendant has been denied his right to a speedy trial results in a decision to dismiss the indictment or to reverse a conviction in order that the indictment be dismissed. Strunk v. United States, 412 U.S. 434 (1973). A trial court denial of a motion to dismiss on speedy trial grounds is not an appealable order under the “collateral order” exception to the finality rule. One must raise the issue on appeal from a conviction. United States v. MacDonald, 435 U.S. 850 (1977).
- Cf. Pollard v. United States, 352 U.S. 354 (1957); United States v. Ewell, 383 U.S. 116 (1966). See United States v. Provoo, 350 U.S. 857 (1955), aff’g 17 F.R.D. 183 (D. Md. 1955).
- United States v. Marion, 404 U.S. 307, 320 (1971); Barker v. Wingo, 407 U.S. 514, 536 (1972) (Justice White concurring).
- Barker v. Wingo, 407 U.S. 514, 530 (1972). For the federal courts, Congress under the Speedy Trial Act of 1974 imposed strict time deadlines, replacing the Barker factors.
- Barker v. Wingo, 407 U.S. 514, 531 (1972). Delays caused by the prosecution’s interlocutory appeal will be judged by the Barker factors, of which the second— the reason for the appeal—is the most important. United States v. Loud Hawk, 474 U.S. 302 (1986) (no denial of speedy trial, since prosecution’s position on appeal was strong, and there was no showing of bad faith or dilatory purpose). If the interlocutory appeal is taken by the defendant, he must “bear the heavy burden of showing an unreasonable delay caused by the prosecution [or] wholly unjustifiable delay by the appellate court” in order to win dismissal on speedy trial grounds. Id. at 316.
- Barker v. Wingo, 407 U.S. at 528. See generally id. at 523–29. Waiver is “an intentional relinquishment or abandonment of a known right or privilege,” Johnson v. Zerbst, 304 U.S. 458, 464 (1938), and it is not to be presumed but must appear from the record to have been intelligently and understandingly made. Carnley v. Cochran, 369 U.S. 506, 516 (1962).
- Vermont v. Brillon, 129 S. Ct. 1283, 1292 (2009) (citation omitted).
- Barker v. Wingo, 407 U.S. 514, 532 (1972).
- In re Oliver, 333 U.S. 257, 268–70 (1948) (citations omitted). Other panegyrics to the value of openness, accompanied with much historical detail, are Gannett Co. v. DePasquale, 443 U.S. 368, 406, 411–33 (1979) (Justice Blackmun concurring in part and dissenting in part); Richmond Newspapers v. Virginia, 448 U.S. 555, 564–73 (1980) (plurality opinion of Chief Justice Burger); id. at 589–97 (Justice Brennan concurring); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603–07 (1982).
- Richmond Newspapers v. Virginia, 448 U.S. 555, 569–73 (1980) (plurality opinion of Chief Justice Burger); id. at 593–97 (Justice Brennan concurring).
- Estes v. Texas, 381 U.S. 532, 538–39 (1965).
- In re Oliver, 333 U.S. 257 (1948); Levine v. United States, 362 U.S. 610 (1960). Both cases were contempt proceedings which were not then “criminal prosecutions” to which the Sixth Amendment applied (for the modern rule see Bloom v. Illinois, 391 U.S. 194 (1968)), so that the cases were wholly due process holdings. Cf. Richmond Newspapers v. Virginia, 448 U.S. 555, 591 n.16 (1980) (Justice Brennan concurring).
- The Court found a qualified First Amendment right for the public to attend criminal trials in Richmond Newspapers v. Virginia. 448 U.S. 555 (1980) (opinion of Chief Justice Burger); id. at 582 (Justice Stevens concurring); id. at 584 (Justice Brennan concurring); id. at 598 (Justice Stewart concurring); id. at 601 (Justice Blackmun concurring). See First Amendment, “Government and the Conduct of Trials,” supra.
- Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (Press-Enterprise I).
- 467 U.S. 39 (1984).
- Waller v. Georgia, 467 U.S. 39, 47 (1984) (indicating that the Press-Enterprise I standard governs such 6th Amendment cases).
- Presley v. Georgia, 558 U.S. ___, No. 09–5270, slip op. (2010) (per curiam).
- Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986) (Press-Enterprise II).
- See Estes v. Texas, 381 U.S. 532, 538–39 (1965).
- 443 U.S. 368 (1979). Cf. Nixon v. Warner Communications, 435 U.S. 589, 610 (1978).
- Estes v. Texas, 381 U.S. 532 (1965); see also Sheppard v. Maxwell, 384 U.S. 333 (1966). Compare Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) (prior restraint on pretrial publicity held unconstitutional). Estes found that live television coverage of criminal trials was an inherent violation of due process, requiring no specific showing of actual prejudice. This holding was overturned in Chandler v. Florida. 449 U.S. 560 (1981)
- Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Chandler v. Florida, 449 U.S. 560 (1981); Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).