Length of Delay and 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.

The length of delay factor works as a “triggering mechanism” for the remainder of the balancing test.1 In Barker, the Court made clear that courts need not reach the other three factors absent a post-accusation delay that is long enough to be “presumptively prejudicial.” 2 The Court held that the delay in Barker’s case satisfied this standard,3 but the Court did not set a concrete time frame for presumptively prejudicial delay.4 Rather, the Court said that the inquiry would depend upon the nature of the criminal charges.5 The less serious the charges, the less a court should tolerate delay.6 In later cases from 1986 and 1992, the Supreme Court held presumptively prejudicial a 90-month post-arrest delay in a prosecution for possession of firearms and explosives7 and an eight and one-half year post-indictment delay in a prosecution for conspiracy to import and distribute cocaine.8 In the latter case, the Court observed without comment that “the lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.” 9 If a delay is presumptively prejudicial, the court must proceed to weigh its excessive length—that is, “the extent to which [it] stretches beyond the bare minimum needed to trigger” the full Barker analysis—along with the other three factors of the balancing test.10

Time that elapses between the formal dismissal and reinstatement of charges does not count toward the length of delay for speedy trial purposes, so long as the defendant is not subject to any restraint on liberty during the interim period.11 Thus, the Supreme Court held in 1982 that the passage of four years between the dismissal of military charges and a later federal grand jury indictment for the same alleged crimes, during which time the defendant was not subject to restraints, did not support a claim for a violation of the Speedy Trial Clause.12 Similarly, in a 1986 case where the trial court dismissed an indictment before trial, leaving the defendants free of restraints, the Supreme Court held that the duration of the government’s successful appeal of the dismissal did not count towards the defendants’ speedy trial claims.13 In contrast, the duration of an interlocutory appeal14 that proceeds while an indictment or restraints on liberty (such as bail or incarceration) remain in place does count toward the length of delay factor under Barker.15

1: Barker v. Wingo, 407 U.S. 514, 530 (1972).
2: Id.
3: Id. at 533–34.
4: Id. at 530.
5: Id. at 530–31.
6: Id.
7: United States v. Loud Hawk, 474 U.S. 302, 314 (1986).
8: Doggett v. United States, 505 U.S. 647, 652 (1992).
9: Id. at 652 n.1.
10: Id. at 652.
11: United States v. MacDonald, 456 U.S. 1, 7 (1982) ( “[T]he Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges.” ).
12: Id. at 9–10.
13: Loud Hawk, 474 U.S. at 311 ( “We find that after the District Court dismissed the indictment against respondents and after respondents were freed without restraint, they were ‘in the same position as any other subject of a criminal investigation.’” ) (quoting MacDonald, 456 U.S. at 8–9).
14: An interlocutory appeal is an “appeal that occurs before the trial court’s final ruling on the entire case,” Appeal, Black’s Law Dictionary (10th ed. 2014), such as an appeal from a pre-trial order suppressing evidence. See Loud Hawk, 474 U.S. at 306–07, 313.
15: Loud Hawk, 474 U.S. at 314 (adopting the Barker test “to determine the extent to which appellate time consumed in the review of pretrial motions should weigh towards a defendant’s speedy trial claim” ).