The Speedy Trial Clause

In all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial. . . .

—Judge Andrew Brasher & Jack Tucker

Introduction

Three questions emerge from the text of the Speedy Trial Clause: (1) When is a person “accused” such that the right attaches? (2) What is meant by a “speedy . . . trial?” (3) What is the remedy for a violation of the right? Anglo-American legal history, the ratification debates, and early practice indicate that the right attaches on arrest, may be invoked by a petition for writ of habeas corpus, and protects against lengthy pretrial detention. Later decisions, especially modern doctrine, give the right broader contours.

History Before 1787

The right to a speedy trial has ancient common-law roots. In 1166, King Henry II issued the Assize of Clarendon to provide protections for people who were arrested. Under the law, if a judge could not come quickly to try people who are arrested, a sheriff would send word to the nearest judge and bring the defendants to wherever the judge could try them.¹ Five decades later, the 1215 Magna Carta guaranteed that “we will not deny or delay to any man, either justice or right.”²

The historical origins of the right to a speedy trial are connected to the writ of habeas corpus. Under the 1679 Habeas Corpus Act, on the last day of the court’s term, judges were required to release a prisoner awaiting trial unless the delay was due to the inability of the prosecution’s witnesses to testify that term. At the start of a second term, if the prisoner asked that he “be brought to his trial” and was not “indicted and tried the second term,” the judge was required to “discharge” the prisoner “from his imprisonment.”³ Sir William Blackstone considered the Habeas Corpus Act and this protection to be a “second magna carta, and stable bulwark of our liberties.”⁴ He warned that the “confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, less striking, and therefore a more dangerous engine of arbitrary government” than even the arbitrary, but more public, taking of a person’s life or property without due process.⁵

Before the Constitutional Convention, these deeply rooted protections from pretrial imprisonment carried over to the states. For example, Pennsylvania and Georgia adopted laws that were materially similar to the 1679 Habeas Corpus Act.⁶ And the constitutions of Delaware and Maryland, among others, enshrined the more general right to a “speedy . . . trial.”⁷

The Constitutional Convention and Ratification Debates

Despite the deep roots of a right to a speedy trial, the Framers did not include this protection in the Constitution. Article III guaranteed a right to jury in criminal trials, but the right to speedy trial was apparently not discussed at the Constitutional Convention. (See Essay No. 136.) Yet, the absence of this right was discussed during the ratification debates. At the Virginia ratifying convention, Edmund Randolph conceded that Article III’s “defect . . . is, that there is no speedy trial.”⁸ At the Massachusetts Convention, Abraham Holmes expressed similar concern about Article III’s failure to guarantee the right to a speedy trial. Holmes feared that someone could be arrested and charged with a crime, “whether he is indicted by the grand jury or not,” and undergo a “long, tedious painful imprisonment” before trial “until the next session of the court.”⁹

The Suspension Clause (Article I, Section 9, clause. 2) implicitly guarantees the privilege of the writ of habeas corpus. (See Essay No. 68.) Given the connection between the right to a speedy trial and the Habeas Corpus Act, the Suspension Clause might explain why the right was not discussed at the Constitutional Convention. But the comments made by Randolph and Holmes suggest that the speedy trial right could have a function beyond protecting people from lengthy pretrial detention. Or perhaps it merely guarantees that the writ should issue in cases where pretrial detention becomes excessive. In any event, these assertions, like pre-convention historical practice, suggest that the right to a speedy trial was well-established by 1787.

In the First Congress, Representative James Madison offered a draft amendment, that began, “In all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.”¹⁰ This proposal would be adopted and ratified without any modifications.

Early Practice and Precedent

Early practice indicates that the core of the speedy trial right was protection from excessive pretrial detention. A leading precedent is Chief Justice Marshall’s 1807 circuit court decision relating to Aaron Burr’s arrest and imprisonment for treason. Burr requested that the prosecutor produce certain evidence under the Sixth Amendment right to “compulsory process.” (See Essay No. 180.) Marshall held that Burr was entitled to the evidence even before a formal indictment. The right of compulsory process serves “the true spirit of the [Sixth Amendment] provision which secures to the accused a speedy trial, that he should have the benefit of the [evidence] as soon as he is brought into court.”¹¹ Marshall reasoned that speedy access to compulsory process “prevents . . . those delays which are never desirable, which frequently occasion the loss of testimony.”¹²

This decision could be read to suggest that the right to a speedy trial protects a defendant from delays that hamper his defense. It could also be read to suggest merely that other Sixth Amendment rights that protect a defendant’s ability to present a defense should be glossed by the speedy trial right’s emphasis on expediency. Moreover, the Speedy Trial Clause protects “the accused.” Marshall distinguished between accusation and indictment. He construed “the accused” to mean a person charged with a crime, regardless of whether formally indicted.¹³ Accordingly, Burr, like Holmes’s argument, indicates that the speedy trial right attaches with a charge and arrest, not an indictment.

Early state court decisions construing state guarantees of a speedy trial might also be instructive for Sixth Amendment purposes to the extent that they reflect the ordinary public meaning of a “speedy trial.” In an 1804 South Carolina case, the defendant, who was free on bail, was not tried after a second court term. However, the court refused to discharge the defendant because the state’s habeas corpus act guaranteed only “that [the accused] should be discharged from [his] confinement on bail, or on [his] own recognisances.”¹⁴ In other words, because he was not in custody, the lack of a speedy trial did not justify his discharge. By contrast, in an 1807 Tennessee case, the defendant was detained before trial, and the court held that a prisoner “ought to be discharged” because the state’s failure to find a prosecutor “furnishes no ground to keep the prisoner six months longer in confinement.”¹⁵ These state cases suggest that the right to a speedy trial protects against lengthy pretrial detention but would not attach to a defendant on bond.

However, in the decades after ratification, the public understanding of the right seemed to expand. In 1851, a Virginia court ruled that the state’s speedy trial right applies regardless of whether the defendant is in custody. The court explained that under the state constitution, this right “enacted no new principle or safeguard of freedom. It was but the re-affirmance of a principle declared and consecrated by the” Habeas Corpus Act and Magna Carta.¹⁶ The court also noted that in 1786, Virginia enacted “a new and additional provision for a discharge from the crime upon” the failure to try the accused in the third court term. This rule differed from the historical practice of merely granting bail or discharging from imprisonment during the first and second court terms.¹⁷

In 1880, a federal territorial court in Montana construed the Sixth Amendment’s speedy trial right “with reference to [its] common-law meaning” at the Founding.¹⁸ The court acknowledged that the Constitution did not set a time within which “a person accused of a crime and imprisoned shall be tried” but still held that the accused, “whether in prison or on bail, has the right to demand diligence on the part of the prosecution to the end that he may speedily know whether he is to be convicted or acquitted.”¹⁹

Modern Practice and Precedent

Modern practice and precedent deviate from the original meaning of the right to a speedy trial with their expansion of the right to protect against more than excessive detention due to pretrial delay. The Supreme Court first briefly discussed the right in Beavers v. Haubert (1905).²⁰ The Court explained that what counts as a speedy trial depends on the circumstances. Klopfer v. North Carolina (1967) incorporated the speedy trial right against the states.²¹ Five years later, Barker v. Wingo (1972) established several criteria for analyzing a violation of the right: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”²² The Court also held that the right offers protection from “oppressive pretrial incarceration,” the “anxiety and concern” resulting from an accusation, and “the possibility that the defense will be impaired.”²³ Finally, the Court ruled that “the only possible” remedy for a violation of the right is dismissal of the indictment.²⁴ The Court provided no analysis of whether these various factors are supported by the original meaning of the Sixth Amendment.

The Supreme Court has also held that the right attaches when a defendant is arrested or indicted but does not apply to delay in indicting or arresting a defendant after a crime. United States v. MacDonald (1982) held that a person is “accused” and the speedy trial right attaches when “a formal criminal charge is instituted” by indictment, arrest, or other official accusation.²⁵ However, United States v. Loud Hawk (1986) held that if the government delays indicting or arresting a person after he commits an offense, the Speedy Trial Clause does not provide a remedy.²⁶ Instead, the defendant must look to the applicable statute of limitations and the Due Process Clause. Doggett v. United States (1992) held that the speedy trial right attaches if a person is indicted, even if he is neither arrested nor aware of the indictment.²⁷

In modern practice, many speedy trial disputes are resolved by applying a statute or rule. On the federal level, the Speedy Trial Act of 1974 provides that a defendant must be tried within a certain number of days, which may be extended only upon a finding that the extension sufficiently serves the “ends of justice.”²⁸ Most state courts operate under comparable statutes or rules, but some states offer no additional protections.

Open Questions

• Justice Clarence Thomas has suggested that, as an originalist matter, the speedy trial right applies only upon arrest, not upon indictment.²⁹ Is he correct?³⁰
• Does the speedy trial right protect only against excessive pretrial detention, or does it also apply to a mere delay in trial?³¹
• As an originalist matter, is dismissing the indictment the appropriate remedy for a violation of the right to a speedy trial? The text refers to a “speedy trial,” not to a “speedy release.” Or might it be appropriate to grant bail or discharge the defendant from imprisonment? To the extent that the speedy trial right protects against the anxiety of accusation or prejudice to the accused’s ability to mount a defense, could other remedies short of dismissal be tailored to the nature of the harm?³²

1. 6 Translations and Reprints from the Original Sources of European History 23 (Edward P. Cheyney ed., 1897). ↩︎
2. The American Republic: Primary Sources 94 (Bruce Frohnen ed., 2002). ↩︎
3. Documents of the Constitution of England and America, from Magna Charta to the Federal Constitution of 1789, 37 (Francis Bowen ed., 1854). ↩︎
4. 1 Blackstone 137. ↩︎
5. Id. at §§ 135–36. ↩︎
6. George M. Stroud, A Digest of the Laws of Pennsylvania 571–72 (7th ed. 1852); J. Stockdale, A Collection of the Constitutions of the Thirteen United States of North America 366 (2d ed. 1783). ↩︎
7. Del. Const. of 1776, Decl. of Rts., § XIV; Md. Const. of 1776, Decl. of Rts., § XIX. ↩︎
8. 10 DHRC 1350–51. ↩︎
9. 6 DHRC 1366–67. ↩︎
10. 1 Annals of Cong. 452 (1789). ↩︎
11. United States v. Burr, 25 F. Cas. 30, 33 (C.C. Va. 1807) (No. 14,692). ↩︎
12. Id. at 32. ↩︎
13. Id. ↩︎
14. State v. Buyck, 2 S.C.L. (2 Bay) 563, 563–64 (1804). ↩︎
15. State v. Sims, 1 Tenn. (1 Overt.) 253, 258 (1807). ↩︎
16. Commonwealth v. Adcock, 49 Va. (8 Gratt.) 661, 676–77 (1851). ↩︎
17. Id. at 677. ↩︎
18. United States v. Fox, 3 Mont. 512, 515 (1880). ↩︎
19. Id. at 516–17. ↩︎
20. 198 U.S. 77, 86–87 (1905). ↩︎
21. 386 U.S. 213, 225–26 (1967). ↩︎
22. 407 U.S. 514, 530 (1972). ↩︎
23. Id. at 532. ↩︎
24. Id. at 522. ↩︎
25. 456 U.S. 1, 6 (1982). ↩︎
26. 474 U.S. 302, 318 (1986). ↩︎
27. 505 U.S. 647, 651–54 (1992). ↩︎
28. 18 U.S.C. § 3161. ↩︎
29. Doggett, 505 U.S. at 663 (Thomas, J., dissenting). ↩︎
30. Phyllis Goldfarb, When Judges Abandon Analogy: The Problem of Delay in Commencing Criminal Prosecutions, 31 Wm. & Mary L. Rev. 607, 633–39 (1990). ↩︎
31. Doggett, 505 U.S. at 663 (Thomas, J., dissenting). ↩︎
32. Akhil Reed Amar, Sixth Amendment First Principles, 84 Geo. L. J. 641, 649–77 (1996). ↩︎