Sixth Amendment:

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.

The Supreme Court’s most extensive commentary on the third balancing factor came in Barker itself, where the defendant’s failure to assert his right to a speedy trial promptly and forcefully appeared to doom his claim in the eyes of the Court.1 The Court made clear that a defendant’s failure to assert the right is not a prerequisite to a speedy trial claim.2 Put differently, a defendant does not waive the right by failing to assert it.3 Moreover, the significance of a failure to assert the right depends on circumstance.4 A failure to object to delay for a compelling reason—such as representation by “incompetent counsel” —might not undermine a speedy trial claim,5 just as a pro forma objection will weigh less in the defendant’s favor than an objection made with “frequency and force.” 6 In the final analysis, however, the Barker Court homed in on the defendant’s litigation strategy as the fulcrum of the inquiry under the third element: where the record shows that the defendant does not want a speedy trial, the Court reasoned, only on rare occasion will he be deemed to have been denied his right to a speedy trial.7 This analytical approach seemed to echo the Court’s earlier observation in Ewell that delay in prosecution often benefits the defendant.8

In the 1992 case Doggett v. United States, the Court clarified that failure to demand a speedy trial does not count against defendants who are unaware of the charges against them.9 In that case, the factual record indicated that the defendant did not know that he had been indicted on federal charges of narcotics distribution during the entirety of an eight-and-one-half year delay between the date of the indictment and the date authorities arrested him to face the charges.10 The Supreme Court reasoned that such ignorance of the proceedings neutralized the third factor in the balancing test;11 accordingly, the Court proceeded to find a violation of the Speedy Trial Clause based on the interplay of the other three factors alone.12

Footnotes

1

Barker v. Wingo, 407 U.S. 514, 534 (1972) ( “More important than the absence of serious prejudice, is the fact that Barker did not want a speedy trial.” ).

2

Id. at 528.

3

Id. ( “We reject . . . the rule that a defendant who fails to demand a speedy trial forever waives his right.” ).

4

Id. at 529 (explaining that, under the balancing test for speedy trial claims, a court may “attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay” and may also “weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection” ).

5

Id. at 536 ( “We do not hold that there may never be a situation in which an indictment may be dismissed on speedy trial grounds where the defendant has failed to object to continuances. There may be a situation in which the defendant was represented by incompetent counsel, was severely prejudiced, or even cases in which the continuances were granted ex parte.” ).

6

Id. at 529.

7

Id. at 532 ( “We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” ); id. at 536 ( “[B]arring extraordinary circumstances, we would be reluctant . . . to rule that a defendant was denied [the speedy trial] right on a record that strongly indicates . . . that the defendant did not want a speedy trial. We hold, therefore, that Barker was not deprived of his due process right to a speedy trial.” )

8

See id. at 521 ( “A . . . difference between the right to speedy trial and the accused’s other constitutional rights is that deprivation of the right may work to the accused’s advantage. Delay is not an uncommon defense tactic.” ); United States v. Ewell, 383 U.S. 116, 122–23 (1966) ( “[T]he problem of delay is the Government’s too, for it still carries the burden of proving the charges beyond a reasonable doubt.” ).

9

505 U.S. 647, 654 (1992).

10

Id. at 653.

11

Id. at 654 ( “[The defendant] is not to be taxed for invoking his speedy trial right only after his arrest.” ).

12

Id. at 656–58 (considering length of delay, reason for delay, and prejudice).