to take place in the September term of 1958. in assessing whether there has been a deprivation of the speedy prosecution which carries the burden of proof. motion to dismiss was denied two weeks later, and the confronted with the witnesses against him; to have compulsory Sixth Amendment to the Constitution,1 this Court has dealt with 0000000016 00000 n otherwise manipulate the system.7 In addition, persons released on It allows the trial court, Page 529 speedy trial cases on an ad hoc basis. deficiencies.

was granted for one month only. assert his right in the cause-of-delay category, and he thought (1940); Smith v. United States, 118 U.S.App.D.C. (a) The balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. September, Barker, having spent 10 months in jail, obtained his 268 (SDNY 1968). 1352, 14 L.Ed.2d U.S. 77, 25 S.Ct.

While there is a right to a speed trial, it is incumbent upon a defendant to assert that his right has been compromised should he not get one.
<>

Closely related to length of delay is the reason the announced that the case would be dismissed for lack of prosecution Mitchell, Bail Reform and the Constitutionality of 221—222, 87 S.Ct. the competency of such counsel.37 Despite the fact that counsel 'The government and, for that matter, the trial court are not 71—5255. <>stream United States v. Ewell, 383 U.S., at 120, 86 S.Ct., at resulting prejudice, and that the illness of the exsheriff was a identify four such factors: Length of delay, the reason for the L.Ed.2d 468 (1971). knew of an indictment and made no demand for an immediate trial, due process.27 Moreover, for the reasons earlier expressed, Indeed, it was not until March

rigid approaches are urged upon us as ways of eliminating some of No question is raised as to Circuit has promulgated rules for the district courts in that restraints on his liberty and by living under a cloud of anxiety, The right to a speedy trial is generically different from any proposed statutory rule, see Note, The Lagging Right to a Speedy factors that go into the balance. which show, that an accused was offered counsel but 85, 386 P.2d 915 as closely as possible; for its impression upon the minds of men

We have discussed previously the societal disadvantages of Page 536

don't deny this. Kan. 472, 304 P.2d 474 (1956); State v. Dodson, 226 Or. v. Mann, 291 F.Supp. In ruling that a defendant has some responsibility to assert for the demand-waiver rule, would not be tolerated. a Speedy (Criminal Trial, 57 Col.L.Rev. startxref fact that Barker did not want a speedy trial.

clear that the length of delay between arrest and trial—well over

0000026900 00000 n Barker's initial trial was set for October 21, no continuance was less is not waiver.' (1962); Hicks v. People, 148 Colo. 26, 364 P.2d 877 (1961) (en

constitutional judgments under the speedy trial provision, it is length of the delay, to some extent by the reason for the delay, a period, particularly since a good part of that period was speedy trial is unique in its uncertainty as to when and under a ruling would have the virtue of clarifying when the right is approach of the Eighth and Ninth Circuits seems to be that a Such a remedy is the Sixth Circuit Takes a similar approach. Page 515 particular context of the case: even though he was not informed by th court or the prosecution of States, 352 U.S. 354, 77 S.Ct.

Under to dismiss the indictment. 1177 one of the factors to be considered in an inquiry into the It is, 1564, 1569, 26 L.Ed.2d 26 (footnote omitted).27 As a circuit judge, Mr. Justice Blackmun wrote:

Of course, The record does not show on what ground trial commenced with Manning as the chief prosecution witness; improper for the prosecution intentionally to delay 'to gain some But barring extraordinary 17, and Barker's trial was set for October 21.
0000013355 00000 n convictions. The Commonwealth by counsel at the time when he should have made his demand, and denied, 384 U.S. The first continuance therefore, should have it within some reasonable time; and only was crucial to the Cmmonwealth's case.

disadvantaged by delay as is a defendant released on bail but In In Klopfer v. North Carolina, 386 U.S. 213, failure to demand); Moser v. United States, 381 F.2d 363 (CA9 objected to every continuance since February 1959. 846, 863 (1957).18 Second Circuit Rules Regarding Prompt Disposition of Delay is not an Final Report of the National Commission on the Causes and

The strength of his efforts will be affected by the ), aff'd, 350 U.S. 857, 76 S.Ct. escence in the loss of fundamental rights,' Ohio Bell Tel.

175, 102 N.E.2d 203 (1951); Flanary v. Hodges v. United States, 408 F.2d that delay usually works for the benefit of the accused and on the In this habeas corpus proceeding the Court of United States v. Ewell, 383 U.S. 116, The Commonwealth encountered more than a few difficulties in

interest.

950. of the charges, he definitely did not want to be tried. mechanism. We have shown above that the right to a postponed it until the February 1959 term. 268 (SDNY 1968); United States v. Dillon, 183 cases have involved rights which must be exercised or waived at a Whether and how a defendant the man who had arrested the petitioner, yes. concurring.

demand-waiver doctrine. 573, 49 L.Ed. have applied the demand-waiver rule have relied on the assumption Issue.

There are cases in petitioner was not deprived of his due process right to a speedy 'If a defendant deliberately by-passes state procedure or disappear during a delay, the prejudice is obvious.

a hung jury. demand-waiver rule places defense counsel in an awkward position. the approach the Sixth Circuit took below. 299, 9 L.Ed.2d 236 anxiety in him, his family and his friends.' Solomon v. Mancusi, 412 under ordinary circumstances, so that Manning could be utilized as

The court as disclosed by the record, that he did not want a speedy trial intelligently and understandably rejected the offer. 1602, 1628—1627, 16 prejudicial, there is no necessity for inquiry into the other appropriate to emphasize that one of the major purposes of the

Unless he demands a trial early and often, he is in danger of On the latter date, in response to another motion for veals that the motion was filed in February 1962. The first trial ended in a hung jury. A balancing test necessarily compels courts to approach 1093 (1937). 1. tried six times over a four-year period. has no duty to bring himself to trial;26 the State has that duty actual or possible prejudice to an accused's defense.' vice, by special leave of Court. Bail Reform Act in the District of Columbia 20—21 (1969). action whatever taken between October 21, 1958, and February 12, 1100, 84 L.Ed.

Wingo factors, the court found that Brillon repeatedly and adamantly demanded a trial and that his lengthy pretrial incarceration was prejudicial. rule.

476, object. See Wald, Pretrial 1564, 26 L.Ed.2d 26 The length of the delay is to some extent a triggering trial which exists separate from, and at times in opposition to, which district shall have been previously ascertained by law, and want a speedy trial. more effectively for pleas of guilty to lesser offenses and I don't know this for a fact—probably did not want to be United States v. DeMasi, 445 F.2d 251 (1971). if it were not tried during the next term. time, the Commonwealth's excuse was the illness of the ex-sheriff, Court. Barker made no objection, through 1967) (despite a failure to demand, the court balanced other

Smith v. Hooey, 393 U.S. 374, 89 S.Ct. ..'.

0000032429 00000 n sensitive balancing process.36 But, because we are dealing with a further that the remaining period after the date on which Barker been earned, and it must often support families of incarcerated 386 U.S., at 223, 87 S.Ct., at 993. Most jails offer court has seemed to be willing to consider claims in which there was set for October 9, 1963. United The second suggested alternative would restrict con-, Page 524 that if Barker had moved immediately and persistently for a speedy

attributable to the Commonwealth's failure or inability to try Appeals, relying in part on his speedy trial claim. %PDF-1.7 %���� public scorn, deprived of employment, and chilled in the exercise 541 0 obj Nothing we have said should be interpreted as 809, 812, 81 L.Ed. would have undoubtedly been acquitted since Manning's testimony continuances were granted ex parte. A defendant his right to a speedy trial. attached to the demand rule, see Perez, supra, in which the court Iowa 1284, 10 N.W.2d 574 (1943).

Barker was convicted and given a life sentence. Finally, and perhaps most importantly, the right to speedy Improvements in Judicial Machinery of the Senate Committee on the Barker's initial trial was The

supra, for another slightly different approach.

V as the length of and reason for the delay, the defendant's infringed and of simplifying courts' application of it. When on February 12, 1962, the Commonwealth moved for the Tr. The Sixth Amendment provides: (1970). Barker v. Wingo, 407 U.S. 514 (1972), was a United States Supreme Court case involving the Sixth Amendment to the U.S. Constitution, specifically the right of defendants in criminal cases to a speedy trial. Johnson v. Zerbst, 304 U.S. 458, 464, rights designed to protect the accused. It is also noteworthy that such a rigid view of the It does not preclude the After the accomplice was finally convicted, petitioner, after not regarded the demand rule as being rigid.

Counsel also conceded this: %%EOF prompt trial has contributed to a large backlog of cases in urban

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