Reason for 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 Barker Court divided government justifications for delay into three categories and explained how each category should impact the balance of factors.1 First, “[a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government.” 2 Second, “[a] more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government . . . .” 3 Third, “a valid reason, such as a missing witness, should serve to justify appropriate delay.” 4 The five-year delay at issue in Barker’s case (caused primarily by the government’s choice to postpone trial until the conclusion of proceedings against the co-defendant) appeared to fall into the second category.5 Accordingly, the Court seemed to count the reason for delay moderately in Barker’s favor, but the factor did not carry enough weight—not even when combined with the “extraordinary” length of delay—to overcome Barker’s failure to assert adequately his speedy trial right and the lack of specific prejudice to his defense.6

In a 1992 case, the Supreme Court articulated the “reason for delay” inquiry as “whether the government or the criminal defendant is more to blame for th[e] delay.” 7 Later cases also clarified the interplay between the reason for delay factor and the other Barker factors and indicated that, in some circumstances, the reason for delay could do much to determine the outcome of the balancing test.8 Where the government causes delay on purpose to gain a trial advantage, a long delay will generally amount to a constitutional violation.9 Where the government bears no blame for a long delay—not even in the “more neutral” sense of negligence or crowded dockets—a constitutional violation likely does not exist absent a showing of specific evidentiary prejudice.10 In contrast, government negligence “falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution” and amounts to a constitutional violation, even without a showing of specific evidentiary prejudice, if it causes a delay that “far exceeds the [presumptive prejudice] threshold” and if the defendant did not exacerbate the delay through a failure to assert the speedy trial right.11 Finally, delays caused by defendants or their counsel—regardless of whether counsel is appointed or privately retained—weigh against defendants and generally will not support a speedy trial claim.12

1: Barker v. Wingo, 407 U.S. 514, 531 (1972).
2: Id.
3: Id; see also Strunk v. United States, 412 U.S. 434, 436 (1973) ( “Unintentional delays caused by overcrowded court dockets or understaffed prosecutors are among the factors to be weighed less heavily than intentional delay, calculated to hamper the defense . . . .” ).
4: Barker, 407 U.S. at 531.
5: Id. at 534 ( “[A] good part of [the delay] was attributable to the Commonwealth’s failure or inability to try [the co-defendant] under circumstances that comported with due process.” ).
6: Id. at 534–35.
7: Doggett v. United States, 505 U.S. 647, 651 (1992).
8: Vermont v. Brillon, 556 U.S. 81, 90–94 (2009); Doggett, 505 U.S. at 656–58.
9: Doggett, 505 U.S. at 656.
10: Id.
11: Id. at 657–58 (8.5-year delay caused by government negligence violated defendant’s speedy trial right, despite lack of showing of specific prejudice, where defendant did not know of charges against him and therefore could not be blamed for not demanding a speedy trial).
12: Brillon, 556 U.S. at 94 ( “[A] defendant’s deliberate attempt to disrupt proceedings [should] be weighted heavily against the defendant)” ; id. ( “[D]elays caused by defense counsel are properly attributed to the defendant, even where counsel is assigned.” ). The Court left open the possibility that a delay caused by breakdown in the public defender system could count against the government for speedy trial purposes. Id.