When the Right to a Speedy Trial Applies

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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.

Until 1971, the Supreme Court did not clearly delineate the stage of the criminal proceeding to which the speedy trial right applied. In the 1957 case Pollard v. United States,1 the Court assumed, without deciding, that the right applied to the sentencing phase of a criminal prosecution.2 In a series of subsequent cases over the ensuing decade, the Court articulated the primary purposes of the speedy trial right,3 held that the right applied against the states through the Due Process Clause of the Fourteenth Amendment,4 and determined that the right applied to defendants already serving prison sentences in another jurisdiction.5 These cases did not, however, determine which events during a criminal prosecution trigger the speedy trial right and which events extinguish it.6

The Court resolved the front end of this ambiguity in the 1971 case United States v. Marion, where it held that the speedy trial right does not attach before the initiation of criminal proceedings against the accused through an arrest or formal charge.7 In Marion, the defendants complained of a three-year delay between the commission of the charged crimes and the issuance of an indictment against them.8 The government apparently had knowledge of the criminal conduct during those three years but did not commence the prosecution earlier because of limited resources.9 Although the Court recognized that pre-charge delays might cause prejudice to the defense, it determined that other considerations compelled the conclusion that the speedy trial right does not protect against such delays.10 These considerations included the text of the Sixth Amendment itself,11 the history of the speedy trial right and ensuing legislative interpretations of it,12 and the right’s purpose of holding in check the attendant “evils” of public accusation.13 The Court also emphasized that other sources of law apart from the Sixth Amendment—namely, statutes of limitations and the Due Process Clause—protect against excessive pre-charge delays.14

Then, in the 2016 case Betterman v. Montana, the Court held that the speedy trial right “detaches” (i.e., no longer applies) upon conviction,15 thereby resolving the question left open sixty years earlier in Pollard.16 The defendant in Betterman argued that a fourteen-month delay between his conviction by guilty plea and the imposition of his sentence violated his right to a speedy trial.17 In rejecting the claim, the Court reasoned that the speedy trial right serves primarily to safeguard the presumption of innocence and that this purpose does not comport with applying the right to post-conviction proceedings such as sentencing.18 The Court also noted, much as it did in Marion, that other sources of law protect against undue delay at the sentencing stage, including rules of criminal procedure and the constitutional right to due process.19

1: 352 U.S. 354 (1957).
2: Id. at 361 ( “We will assume arguendo that sentence is part of the trial for purposes of the Sixth Amendment.” ). The Court determined that the two-year delay between conviction and sentencing at issue in the case would not have violated the defendant’s right to a speedy trial even if that right applied to sentencing. Id. at 361–62. The Court thus found it unnecessary to decide whether the right encompassed sentencing. Id. at 361.
3: United States v. Ewell, 383 U.S. 116, 120 (1966) ( “This guarantee 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 possibilities that long delay will impair the ability of an accused to defend himself.” ).
4: Klopfer v. North Carolina, 386 U.S. 213, 223 (1967) ( “We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment.” ).
5: Dickey v. Florida, 398 U.S. 30, 37 (1970) ( “[O]n demand a State ha[s] a duty to make a diligent and good-faith effort to secure the presence of the accused from the custodial jurisdiction and afford him a trial.” ); Smith v. Hooey, 393 U.S. 374, 378 (1969) ( “The [ ] demands [of the right to a speedy trial] are both aggravated and compounded in the case of an accused who is imprisoned by another jurisdiction.” ).
6: See Dickey, 398 U.S. at 40 (Brennan, J., concurring) (observing that “the Court has as yet given scant attention to . . . questions essential to the definition of the speedy-trial guarantee,” including “when during the criminal process the speedy-trial guarantee attaches” ).
7: 404 U.S. 307, 313 (1971) ( “[T]he Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an ‘accused’ . . . .” ); id. at 321 ( “Invocation of the speedy trial provision . . . need not await indictment, information, or other formal charge. But we decline to extend th[e] reach of the amendment to the period prior to arrest.” ) (footnote omitted). For a discussion of how the attachment rule of Marion applies to peculiar charging scenarios, including prosecutions initiated by sealed indictment, see 5 Wayne R. LaFave et al., Criminal Procedure § 18.1(c) (4th ed. 2020).
8: Marion, 404 U.S. at 313.
9: Id. at 309 (noting evidence in record, including newspaper articles and a Federal Trade Commission cease and desist order, indicating that federal prosecutors had knowledge of the criminal fraud scheme about three years before securing the indictment); id. at 335 (Douglas, J., concurring) ( “The justifications offered [for the delay] were that the United States Attorney’s office was ‘not sufficiently staffed to proceed as expeditiously’ as desirable and that priority had been given to other cases.” ) (citation omitted).
10: Id. at 321–22 ( “Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself. But this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context.” ); see also Dillingham v. United States, 423 U.S. 64, 64–65 (1975) (per curiam) (holding that speedy trial right applies to time after arrest but before indictment).
11: Marion, 404 U.S. at 313 ( “On its face, the protection of the 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.” ).
12: Id. at 313–14 ( “Our attention is called to nothing in the circumstances surrounding the adoption of the [Sixth] Amendment indicating that it does not mean what it appears to say . . . .” ); id. at 316 ( “Legislative efforts to implement federal and state speedy trial provisions also plainly reveal the view that these guarantees are applicable only after a person has been accused of a crime.” ).
13: Id. at 320 ( “[T]he major evils protected against the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense. . . . Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, . . . and create anxiety in him, his family and his friends.” ).
14: Id. at 323 ( “There is . . . no need to press the Sixth Amendment into service to guard against the mere possibility that pre-accusation delays will prejudice the defense in a criminal case since statutes of limitation already perform that function.” ); id. at 324 ( “[T]he Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” ). Although the Court declined, given the lack of a developed record, to conduct a complete due process analysis as to whether the pre-accusation delays in Marion had caused defendants actual prejudice, id. at 325, the Court has applied due process principles to pre-indictment delays in other cases. See United States v. Lovasco, 431 U.S. 783, 796 (1977) (holding that “to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time,” so long as the government does not delay solely to gain a tactical advantage); see also Fifth Amendment (discussing procedural due process rights on confessions in criminal cases).
15: Betterman v. Montana, 578 U.S. 437, 440 (2016).
16: Pollard, 352 U.S. at 361 (assuming arguendo “that sentence is part of the trial for purposes of the Sixth Amendment” ).
17: Betterman, 578 U.S. at 440.
18: Id.; Id. at 446 (noting arguments that the “prevalence of guilty pleas and the resulting scarcity of trials in today’s justice system” have made sentencing proceedings a more significant forum for criminal dispute resolution, but concluding that this “modern reality . . . does not bear on the presumption-of-innocence protection at the heart of the Speedy Trial Clause” ).
19: Id. at 447–48 ( “The federal rule [of criminal procedure] on point directs the court to ‘impose sentence without unnecessary delay.’ Many States have provisions to the same effect. . . . Further, as at the prearrest stage, due process serves as a backstop against exorbitant delay.” ) (quoting Fed. R. Crim. P. 32(b)(1)). Because the defendant in Betterman did not advance a due process claim, the Court limited its due process analysis to the observation that a defendant’s right to liberty after conviction, while “diminished,” nonetheless encompasses “an interest in a sentencing proceeding that is fundamentally fair.” Id. at 448–49.