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.

Barker instructed courts to consider prejudice in terms of the three primary purposes of the speedy trial guarantee: (1) prevention of “oppressive pretrial incarceration;” (2) minimization of the “anxiety and concern” caused by criminal accusation; and (3) protection against “the possibility that the defense will be impaired” by delay (i.e., evidentiary prejudice).1 Generally, the Court has emphasized evidentiary prejudice as the most consequential of the three types.2 In Barker, for example, where the defendant had spent ten months in pre-trial detention and endured 4.5 years under the “cloud” and “anxiety” of pending murder charges (and could therefore establish prejudice of the first two types), the Court counted the prejudice factor against the defendant because he did not show that the delay actually damaged his defense.3

Multiple times the Court has said that a showing of evidentiary prejudice is not essential.4 Yet on one occasion, in the 1994 case Reed v. Farley, the Supreme Court made a statement directly to the contrary, declaring that a showing of evidentiary prejudice “is required” to show a speedy trial violation.5 That statement did not appear to constitute a binding holding: Reed dealt with the Speedy Trial Clause only in passing because the defendant did not actually press a constitutional speedy trial claim.6 Nonetheless, even though Reed probably does not establish that a speedy trial claim must include a showing of evidentiary prejudice to succeed, the case does underline the Court’s tendency to treat impairment to the defense as the key aspect of the prejudice prong and one of the most impactful considerations in the overall Barker analysis.7

The Supreme Court’s consistent emphasis on the significance of evidentiary prejudice, however, has, from the outset, included one subtle qualification: the damage that delay causes to the defense does not always lend itself to an affirmative showing.8 Thus, in Doggett, where government negligence delayed proceedings by at least six years but where the defendant failed to show any specific impairment to his defense, the Court weighed the prejudice factor in the defendant’s favor based on the presumption that such a long delay had hurt the defense case in ways that neither side could demonstrate.9 The Court stressed, however, that the presumption of evidentiary prejudice—as opposed to an affirmative showing of such prejudice—would support a speedy trial violation only in the case of particularly long delays10 and only where other factors also favored the defendant.11

Footnotes

1

Barker v. Wingo, 407 U.S. 514, 532 (1972).

2

Id. ( “[T]he most serious [type of prejudice] is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” ); Doggett v. United States, 505 U.S. 647, 654 (1992) (quoting Barker for same proposition).

3

Barker, 407 U.S. at 534.

4

Doggett, 505 U.S. at 655 ( “[A]ffirmative proof of particularized prejudice is not essential to every speedy trial claim.” ); Moore v. Arizona, 414 U.S. 25, 26 (1973) (per curiam) (rejecting, based on Barker, the “notion that an affirmative demonstration of prejudice [i]s necessary to prove a denial of the constitutional right to a speedy trial” ); Barker, 407 U.S. at 533 ( “We regard none of the four factors [in the balancing test] identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” ).

5

512 U.S. 339, 353 (1994) ( “[The defendant] does not suggest that his ability to present a defense was prejudiced by the delay [in his prosecution]. . . . A showing of prejudice is required to establish a violation of the Sixth Amendment Speedy Trial Clause, and that necessary ingredient is entirely missing here.” ).

6

Id. at 352 (noting the defendant’s concession that “his constitutional right to a speedy trial was in no way violated” ). Reed dealt primarily with the scope of collateral review of state court convictions under 28 U.S.C. § 2254. 512 U.S. at 342 ( “We hold that a state court’s failure to observe the 120-day rule of [the Interstate Agreement on Detainers Act] Article IV(c) is not cognizable under § 2254 when the defendant registered no objection to the trial date at the time it was set, and suffered no prejudice attributable to the delayed commencement.” ).

7

See Id. at 352; Barker, 407 U.S. at 532.

8

Barker, 407 U.S. at 532 ( “There is . . . prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.” ); see Doggett, 505 U.S. at 655 ( “We generally have to recognize that excessive delay presumptively compromises the reliability of a trial in way that neither party can prove or, for that matter, identify.” ).

9

Doggett, 505 U.S. at 658 ( “When the Government’s negligence thus causes delay [of six years] . . . and when the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant’s acquiescence, . . . nor persuasively rebutted, the defendant is entitled to relief.” ) (footnotes omitted); id at 658 n.4 (emphasizing that the government “ha[d] not, and probably could not have, affirmatively proved that the delay left [defendant’s] ability to defend himself unimpaired” ).

10

Id. at 657 ( “[T]o warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice.” ).

11

Id. at 656 ( “Presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria . . . .” ).