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Has COVID-19 Infringed on Your Right to a Speedy Trial?

On Behalf of | May 19, 2020 | Criminal Defense

Courthouse work is at a halt The COVID-19 pandemic has essentially put all work in the courthouse to a halt for the time being. Hearings are suspended in some locations indefinitely. But what about your constitutionally guaranteed right to a speedy trial; is that on hold, too? I have recently had a few clients call and ask about this issue. I have also had some experience and success in litigating speedy trial issues.

(1) Below is the analysis that a court will likely make when determining whether a citizen’s right to a speedy trial has been violated. First, let’s look at the Constitution to see what it says about the right to a speedy trial. The Sixth Amendment of the United States Constitution guarantees that “[i]n 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 . . . to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor.”

(2) This same right is also enshrined in the North Dakota Constitution.

(3) “[T]he right to a speedy trial is ‘fundamental’ and is imposed by the Due Process Clause of the Fourteenth Amendment on the States.”

(4) A very interesting and consequential fact about the right to a speedy trial is the only “possible remedy” for a violation of the right is dismissal.

The right to a speedy trial is not a theoretical or abstract right but one rooted in hard reality in the need to have charges promptly exposed. If the case for the prosecution calls on the accused to meet charges rather than rest on the infirmities of the prosecution’s case, as is the defendant’s right, the time to meet them is when the case is fresh. Stale claims have never been favored by the law, and far less so in criminal cases. . . . delay[,] with its consequent prejudice is intolerable as a matter of fact and impermissible as a matter of law.

(6)Case Law The United States Supreme Court, in Barker v. Wingo, 407 U.S. 514 (1972), established a balancing test to determine whether an individual’s right to a speedy trial has been violated. The four factors of the balancing test are:

  • 1) length of delay,
  • 2) the reason for the delay,
  • 3) the Defendant’s assertion of his right, and
  • 4) the prejudice to the Defendant.

(7) The North Dakota Supreme Court adopted the Barker analysis in 1976.

(8) No single factor controls the test, and all factors must be considered when determining whether an individual’s right to speedy trial has been violated.

(9)  Let’s look at each factor and see how they can impact a Court’s analysis on a claim that the right to a speedy trial has been violated. 1.) Length of Delay The first factor to evaluate is the length of delay. “If the delay is longer than the delay usually allowed for criminal prosecutions, the delay is ‘presumptively prejudicial,’ and a court must complete a speedy-trial analysis.”

(10) “Traditionally, a delay of one year or more is considered presumptively prejudicial, triggering the analysis.”

(11) One thing to consider in these interesting times is that it is not one year from when the COVID-19 pandemic broke and caused things to come to a halt; it is from when your case started. So, if it has been around a year from when your case started, the Court’s ears are instantly going to perk up and they will continue an analysis. Keep in mind that there may also be other statutory elements in each state that can trigger a speedy trial analysis in shorter time periods than one year.


2.) Reason for Delay The second factor to evaluate is the reason for the delay. For this factor, let’s start with whose duty it is to bring the matter to trial. “A defendant has no duty to bring himself to trial; the [government] has that duty as well as the duty of insuring that the trial is consistent with due process.”

(13) Even if there is a warrant out for your arrest, “[t]he government must actively try to serve a warrant, or it risks being negligent for not diligently pursuing the accused.”

(14) Further, even if the you are located outside of the state, “the State must act diligently and in good faith to acquire jurisdiction.”

(15) Even if there is good cause during this pandemic to stall your proceedings, when things get back to normal, the burden is always going to be on the government to get things back on track and bring you to trial. When the government provides no evidence that it diligently attempted to locate a defendant, it is considered clear error to not find the government negligent.

(16) The North Dakota Supreme Court has recognized that “law enforcement may be unable to locate and detain defendants who flee the state or otherwise avoid prosecution, but the burden is on the government to prove it affirmatively pursued the case.”

(17) Even if the charges are just simple misdemeanors, there is no excuse for the government to not actively pursue its warrant. “While the Government’s lethargy may have reflected no more than [the Defendant’s] relative unimportance . . . it was still findable negligence, and the finding stands.”

(18) If the government is not actively trying to find you or bring your case to trial, it runs the risk of being negligent in bringing your case to a speedy trial.

3.) Assertion of Right to Speedy Trial The third factor to evaluate is the Defendant’s assertion of his right to a speedy trial. Your best bet is to assert your right to a speedy trial as soon as possible if this is a concern for you. Of course, sometimes this gets a little difficult if you do not even know you are being charged with a crime. The Court will take that into consideration.  “When a defendant does not know of the charge against him, not asserting the right until after arrest cannot weigh against him.”

(19) The United States Supreme Court has rejected the notion “that a defendant who fails to demand a speedy trial forever waives his right.”

(20) In other words, even though you may not actively assert your right to a speedy trial, the right still exists. Further, it is again worth noting the undisputed rule is that the Sixth Amendment places “the primary burden on the courts and the prosecutors to assure that cases are brought to trial.”


4.) Prejudice to the Defendant The fourth factor to evaluate is the prejudice to the Defendant. This factor has three specific interests to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.”

(22) The first interest is extremely important and a wonderful example of why the right to a speedy trial exists. No one wants to see a citizen having to undergo oppressive, and potentially unnecessary, pretrial incarceration. That is why most, if not all, of the courts are still having hearings for those who are currently incarcerated during this pandemic.   Regarding the second interest, minimize anxiety and concern of the accused, the United States Supreme Court has stated, “[t]he pendency of [an open case] may subject [a defendant] to public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes.”

(23) The interest of an impaired defense is the most serious of the interests protected by the fourth factor in the speedy trial analysis.

(24) “[T]he inability of a defendant adequately to prepare his case skews the fairness of the entire system.”

(25) The United States Supreme Court has stated “we have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.”

(26) The mere passage of time obviously takes its tolls on the availability and memory of witnesses. But we will never be able to know exactly just how much damage was done as time passes. Good news is the Court does not necessarily have to quantify how much damage has occurred with the passage of time. “Affirmative proof of particularized prejudice is not essential to every speedy trial claim.”

(27) The United States Supreme Court has expressly recognized that a presumption of prejudice attaches to an excessive delay under the Sixth Amendment.

(28) Further, that presumption of prejudice logically intensifies over time.

(29) This presumption and its intensification over time is recognized by both the Eighth Circuit Court of Appeals and the North Dakota Supreme Court.

(30) As you can see, there is a lot to consider when looking at your right to a speedy trial. Although the current situation may give good cause to suspend proceedings, it likely does not give the government the right to do so indefinitely. If you think your right to a fair and speedy trial has been violated, be sure to reach out to an attorney to see what your options are. Most importantly, stay safe and stay healthy. We will get through this together.
If you have any questions regarding your criminal case or your right to a speedy trial, please reach out to criminal defense attorney, Scott Brand, at Nilson Brand Law by calling (701) 786-6040 or email [email protected].