Speedy Trial Rights in Application
Speedy Trial Rights in Application
Gregory P.N. Joseph 0
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Recommended Citation Gregory P.N. Joseph, Speedy Trial Rights in Application, 49 Fordham L. Rev. 611 (1981). Available at: http://ir.lawnet.fordham.edu/flr/vol49/iss5/1
E xtended pretrial delay in criminal litigation,' although frequently
claimed by defendants to be a deprivation of a fundamental right,
is seldom held to violate speedy trial protection and, even when so
held, only rarely determines the outcome of a case. This fact may seem
curious in view of the nature, and seeming pervasiveness, of the
speedy trial guarantee: 2 a multiplicity of constitutional, legislative, and
judicial sources can support a defendant's claim to a speedy trial, 3 and
virtually all of these mandate the dismissal with prejudice of pending
B.A. 1972, J.D. 1975, University of Minnesota. Mr. Joseph is associated with the firm of
Fried, Frank, Harris, Shriver & Jacobson, New York City.
1. The phrase "pretrial delay" is used, in its constitutional sense, to refer to the time period
commencing at the instant that "the putative defendant in some way becomes an 'accused.' "
United States v. Marion, 404 U.S. 307, 313 (1971) (construing U.S. Const. amend. VI), through
"either a formal indictment or information or else the actual restraints imposed by arrest and
holding to answer a criminal charge," id. at 320, and concluding upon his trial on those charges
of which he stands "accused." Following Marion, most state courts considering the issue have
construed the speedy trial rights conferred by their respective state constitutions as attaching at
precisely the same instant. Yarbor v. State, 546 P.2d 564 (Alaska 1976); State v. Lee, 110 Ariz.
357, 519 P.2d 56 (1974); People v. Sobiek, 30 Cal. App. 3d 458, 106 Cal. Rptr. 519, cert. denied,
414 U.S. 855 (1973); People ex rel. Coca v. District Court, 187 Colo. 280, 530 P.2d 958 (1975);
State v. Bryson, 53 Hawaii 652, 500 P.2d 1171 (1972); Burress v. State, - Ind. App. -, 363
N.E.2d 1036 (Ct. App. 1977); State v. Fraise, 350 So. 2d 154 (La. 1977); State v. Bessey, 328
A.2d 807 (Me. 1974); Commonwealth v. Gove, 366 Mass. 351, 320 N.E.2d 900 (1974); People v.
,Williams, 66 Mich. App. 521, 239 N.W.2d 653 (1976); State v. Odzark, 532 S.W.2d 45 (Mo.
App. 1976); People v. White, 32 N.Y.2d 393, 298 N.E.2d 659, 345 N.Y.S.2d 513 (1973); State v.
Cross, 48 Ohio App. 2d 357, 357 N.E.2d 1103 (1975); State v. Edens, 565 P.2d 51 (Okla. Crim.
App. 1977); State v. Serrell, 265 Or. 216, 507 P.2d 1405 (1973). What constitutes such
"accusation" is procedurally determined. Although the Supreme Court has stated that pretrial
delay commences upon an indictment or information, or upon arrest, United States v. Marion,
404 U.S. at 320; see Northern v. United States, 455 F.2d 427 (9th Cir. 1972), at least one court
has considered that the period begins upon the mere filing of a criminal complaint, People v.
Hannon, 19 Cal. 3d 588, 564 P.2d 1203, 138 Cal. Rptr. 885 (1977). The terminus of pretrial
delay, trial, may refer not merely to the commencement of a trial, but to conclusion and entry of
judgment of acquittal or a valid conviction. See notes 204-05 infra. Where a second trial is
necessary for any reason, conclusion of the first does not, by definition, terminate pretrial delay.
See notes 137-39 infra and accompanying text.
2. In view of the multiplicity of constitutional, statutory, and rule provisions conferring
speedy trial protection on accused persons, this Article adopts the phrase "speedy trial guarantee"
as a comprehensive, generic reference to all such protection. The phrase "speedy trial right," in
contrast, is used to refer to specific constitutional, statutory, or rule provisions. Further,
"constitutional" speedy trial rights-those specified in state or federal constitutions-will be
distinguished from "extraconstitutional" speedy trial rights--those specified in statutes and
rules-for similar purposes of analytical provisions.
3. See pt. I(A) infra.
criminal charges if it is not provided. 4 Yet it appears that the very
multiplicity of speedy trial rights creates judicial confusion, and the
severity of remedy results in judicial reluctance to enforce these
rights. 5 Despite recognition of the right as "one of the most basic . . .
preserved by our Constitution,' 6 the Supreme Court, noting its
"amorphous quality,"' 7 has characterized the constitutional right as
"slippery,"8 stating that "[i]t is . . . impossible to determine with
precision when the right has been denied." 9 Consequently, many
courts, in an apparent effort to avoid dealing with the complex
balancing test promulgated by the Court to resolve speedy trial
claims, 10 have been increasingly willing to find that a defendant has
waived his rights to a speedy trial. 1 Overall, the result has been a
distinctly limited realization of the goal of speedy trials.
Following a brief examination of the sources of the speedy trial
guarantee, their interrelationship, and some problems inherent in the
nature and enforcement of speedy trial rights, this Article examines the
practical application and operative effect accorded speedy trial
rights. 12 It is submitted that the functional effect of speedy trial rights
can be assessed by gauging the frequency and consistency with which
courts are ruling that extended pretrial delay violates those rights and
the extent to which defendants are nonetheless precluded from
effectively asserting these violations. Such an approach will provide a
factual index to decisions that will assist litigators in arguing, and
judges in deciding, speedy trial claims. 'Inaddition, the Article
suggests a number of legislative and judicial appromaicghhets,becopnudruscuievde.' 3to
effectuating the speedy trial guarantee, which
SPEEDY TRIAL RIGHTS
The sixth amendment to the United States Constitution provides:
"In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial .... 14 The Supreme Court has declared this
right "fundamental" and therefore incumbent upon the states by the
operation of the fourteenth amendment.' 5 The constitutions of every
state except Nevada, New York and North Carolina contain parallel
provisions, most of which are virtual replicas of the sixth amendment's
speedy trial language. 16 The interpretation of state constitutional
speedy trial provisions has tracked that of the federal constitutional
right: almost all state courts have embraced the federal constitutional
standard enunciated in Barker v. Wingo 7 for the purpose of
determining whether the state constitutional right has been violated, 18 although
it has frequently been done with little explanation or analysis.1 9
Nevertheless, a number of state courts have expressly eschewed this
approach as encroaching on their sovereign prerogative, theorizing
that the federal right provides only a minimum standard of protection,
leaving the states free to impose more stringent standards. 20
Only one state court has ruled that its state constitutional provision
dictates concrete time limits within which the accused must be tried. 2 1
In all but one jurisdiction, however, a third source of speedy trial
protection-statutes and rules-prescribes specific time limits within
which trial must occur, 22 although a number of these provisions are
guarantee"). Note also that the unwritten "fundamental law" speedy trial right in North Carolina,
see note 16 supra, is also deemed governed by the Barker analysis. State v. Wright, 290 N.C. 45,
224 S.E.2d 624 (1976), cert. denied, 429 U.S. 1049 (1977).
19. In most of the decisions applying the Barker standard, see cases cited note 18 supra, the
courts have not analyzed or explained why Barker standards should dictate the resolution of state
constitutional speedy trial claims. Frequently these opinions begin simply by reciting both the
state and federal constitutional provisions-violation of each having been alleged-and then
proceed to adjudicate the defendant's claims by applying only the Barker criteria. In view of tile
substantial identity of the language of the state and federal speedy trial provisiong, an argument
can be made that, given the uniform purpose of the provisions, uniform interpretation is
appropriate to ensure consistent results. Because constitutional provisions are by nature subject to
continuous reinterpretation in light of changing historical circumstances, however, It can be
argued that this approach assumes by default the correctness of the United States Supreme
Court's opinions, in dereliction of the state court responsibility to exercise independent judgment
in regard to state constitutional rights. See, e.g., Brennan, State Constitutionsand the Protection
of IndividualRights, 90 Harv. L. Rev. 489, 501-02 (1977); Douglas, State JudicialActivism-The
New Role for State Bills of Rights, 12 Suffolk U.L. Rev. 1123, 1142-47 (1978); Howard, State
Courts and ConstitutionalRights in the Day of the Burger Court, 62 Va. L. Rev. 873, 934-44
(1976); Mosk, Contemporary Federalism, 9 Pac. L.J. 711, 719-21 (1978).
20. Yarbor v. State, 546 P.2d 564, 566 n.4 (Alaska 1976); People v. Hannon, 19 Cal. 3d 588,
606, 564 P.2d 1203, 1214, 138 Cal. Rptr. 885, 896 (1977); Smith v. State, 276 Md. 521, 527, 350
A.2d 628, 632 (1976); cf. State v. Lindsay, 96 Idaho 474, 475, 531 P.2d 236, 237 (1975) (Barker
test is consistent with decisions of the state's own court.;, but the state constitutional speedy trial
guarantee is not "necessarily identical" to the federal right); People v. Taranovich, 37 N.Y.2d
442, 449-50, 335 N.E.2d 303, 309, 373 N.Y.S.2d 79, 86 (1975) (Wachtler, J., dissenting) (Barker
did not diminish the scope of state statutory protection, which did not require a showing of
demand by, or prejudice to, the defendant).
21. Mayberry v. State, 48 Ala. App. 276, 264 So. 2d 198 (1971), cert. denied, 288 Ala. 746,
264 So. 2d 207 (1972).
22. Forty-four states have bestowed speedy trial rights upon some or all criminal defendants
by statute, court rule, or both. These extraconstitutional speedy trial rights are identified in the
Appendix, infra. Moreover, the District of Columbia, the United States, and every state except
Alaska, Mississippi, and Louisiana have entered into the Interstate Agreement on Detainers, Pub.
L. No. 91-538, §§ 1-8, 84 Stat. 1397 (1970), 18 U.S.C. app. pp. 1395-
). See 11 Uniform
Laws Ann. 68 (Supp. 1980). This Interstate Agreement contains speedy trial provisions specifying
time limits within which a defendant, imprisoned on unrelated charges in one jurisdiction, must
be brought to trial on criminal allegations detailed in a detainer lodged against him by authorities
from another jurisdiction. The Appendix contains references to this Agreement as well as to the
Uniform Mandatory Disposition of Detainers Act. This Act, enacted by statute in Alabama,
Arizona, Colorado, Kansas, Minnesota, Missouri, North Dakota, and Utah, see 11 Uniform
Laws Ann. 68 (Supp. 1980), and by rule in Arkansas, Ark. R. Crim. P. 29.1(a), provides time
triggered only by a defendant's formal demand of a speedy trial.2 3 The
courts follow essentially two approaches in interpreting the
interrelationship between constitutional speedy trial rights and these
timeprecise statutes and rules. The first approach, employed by several
courts, holds that statutory or rule speedy trial rights "implement" or
"codify" state and/or federal constitutional guarantees. 2 4 While the
exact meaning of these terms is unclear, 25 it is evident that they
describe a nexus in which the time-precise period quantifies the
constitutional right, thereby preventing unquantified "length of delay"
questions from arising. 26 A variant of this approach, perhaps designed
to express a slightly weaker nexus, deems the statutes and rules
"supplemental" to, and "constructions" of, the constitutional rights.27
Here again, the extraconstitutional rights are viewed as intended to
limits analogous to those set forth in the Interstate Agreement but applies only when the pending
charges arise in the same jurisdiction in which the defendant is imprisoned. Only Mississippi has
neither a local speedy trial statute or rule nor the Interstate Agreement or Uniform Act.
23. Three states confer extraconstitutional speedy trial rights entirely contingent upon the
defendant's formal demand of a speedy trial. A demand is also required by the Interstate
Agreement on Detainers, art. III(a). See Appendix infra.
24. In re Fla. Rules of Crim. Proc., 245 So. 2d 33 (Fla. 1971) (per curiam) (statute
implements state constitutional right); Underhill v. State, 129 Ga. App. 65, 198 S.E.2d 703 (1973)
(statute implements federal constitutional right); People v. Sibley, 41 Ill. App. 3d 616, 354
N.E.2d 442 (1976) (statute implements both state and federal constitutional rights); State v.
Davis, 209 Kan. 225, 495 P.2d 965 (1972) (same); State v. Driever, 347 So. 2d 1132 (La. 1977)
(same); State v. Erickson, 241 N.W.2d 854 (N.D. 1976) (rule is a mechanism for enforcing federal
constitutional right); State v. Davis, 44 Ohio App. 2d 95, 335 N.E.2d 874 (1975) (statute
implements and codifies state and federal constitutional rights); Commonwealth v. Myrick, 468
Pa. 155, 161, 360 A.2d 598, 600 (1976) (rule is "designed to implement and protect a defendant's
constitutional right to a speedy trial"; source of rights not specified).
25. Compare, e.g., People v. Green, 42 IIl. App. 3d 978, 985, 356 N.E.2d 947, 953 (1976)
(terming speedy trial act "the statutory implementation of this [sixth amendment) right") with
People v. Johnson, 36 IM. App. 3d 122, 126, 343 N.E.2d 177, 180 (1976) trthe statutory
requirement is not coextensive with constitutional safeguards"). See also State v. Davis, 44 Ohio
App. 2d 95, 97, 335 N.E.2d 874, 876 (1975) (statutory "time limitations. . . fare not] finally and
immutably definitive of the Sixth Amendment generalization of the right to a speedy trial").
26. See People v. Johnson, 36 III. App. 3d 122, 343 N.E.2d 177 (1976).
27. Townsend v. Superior Court, 15 Cal. 3d 774, 781, 543 P.2d 619, 625, 126, Cal. Rptr. 251,
257 (1975) (statutory rights "are 'merely supplementary to and a construction of the [state]
Constitution' "(citation omitted)); Carr v. District Court, 190 Colo. 125, 127, 543 P.2d 1253, 1254
(1975) (en banc) (identical statutory and rule rights are "supplemental to" the state and federal
constitutional rights to a speedy trial, which are construed identically); State v. Lindsay, 96 Idaho
474, 475, 531 P.2d 236, 237 (1975) (statute "reflect[s] the meaning of that [state] constitutional
guarantee"); Holt v. State, 262 Ind. 334, 335, 316 N.E.2d 362, 363 (1974) (rule "is the mechanism
adopted . . . to insure the [state and federal] constitutional right to a speedy trial");
Commonwealth v. Fields, 371 Mass. 274, 279, 356 N.E.2d 1211, 1215 (1976) (" 'the statute's purpose %was
to assist in the implementation of the [state and federal constitutional) right[s] to speedy trial' ');
State v. Lacy, - W.Va. _, -7 232 S.E.2d 519, 522 (1977) ("-'the legislative adoption or
declaration of what, ordinarily, at least, constitutes a speedy trial within the meaning of [state
and federal constitutional provisions]' ').
"clarify and simplify the parameters of the constitutional right, ' 28 and
a number of courts have found violations of the former to be prima
facie evidence of violations of the latter. 29 Under either variation of
this approach, however, courts have been careful to discriminate
clearly between constitutional and extraconstitutional speedy trial
rights, recognizing them as different in nature and scope. 30
The second means of reconciling constitutional and
extraconstitutional speedy trial rights is through straightforward demarcation of the
two. Under this approach, the time-precise period is viewed as stricter
than, and not coterminous with, the constitutionally permissible
pretrial period. Consequently, the elapsing of the prescribed period does
not of itself comprise, even prime facie, a constitutional violation. 3 1
Even so, some courts adhering to this analysis utilize the period
prescribed by the statute or rule as a gauge of delay, triggering
constitutional inquiry if the trial does not occur within the time
limits. 3 2
Regardless of which theory is chosen, the theoretical reconciliation
of constitutional and extraconstitutional rights has few practical
repercussions. When a speedy trial statute or rule is involved, a court will
pursue the same interpretive analysis regardless of whether the claim
of violation, if found, is to be labeled constitutional or
extraconstitutional. Moreover, because the mandatory sanction required by statutes
or rules is almost invariably dismissal with prejudice of all charges, 33
the finding of an extraconstitutional violation makes moot the issue of
a constitutional violation. If, conversely, no statutory or rule-based
violation is found, all cases agree that, irrespective of the theory of the
relationship between constitutional and extraconstitutional rights, a
separate34 analysis of the possible constitutional deprivation is
The reconciliation of extraconstitutional and constitutional speedy
trial rights also has little bearing on whether a defendant has waived
his rights. The Supreme Court has explicitly condoned the application
of "standard waiver doctrine" to any claim of constitutional speedy
trial violation if the pretrial delay is "attributable to the defendant." 35
Thus, to the extent that such federal constitutional analysis governs
the interpretation of statutes or rules that "implement," "codify," or
"supplement" state constitutional rights, 3 6 application of the standard
waiver doctrine, if the defendant indeed delays the trial, is proper.
Nevertheless, many courts seem to prefer to apply Barker's more
liberal "facts-and-circumstances" test of waiver to these
extraconstitutional rights. 3 7 In fact, the Barker test is frequently applied even to
statutes and rules that have been interpreted as separate from the
state constitutional right, 38 despite the fact that traditional waiver
doctrine may appropriately be applied and the Barker standard, as
such, is inapposite. 39 In any event, even an express waiver of statutory
or rule rights, however they may be construed, does not
constitutionally excuse the failure to try a defendant within a reasonable time after
he has announced his readiness for trial. 40
As applied, all time-precise speedy trial statutes and rules are in
some respects stricter, and in some respects more lax, than
constitutional speedy trial rights. Such extraconstitutional rights "go beyond
constitutional minimum standards"41 in the sense that the mere
expiration of the prescribed time limits, absent trial and without justification,
35. Barker v. Wingo, 407 U.S. 514, 529 (1972). In Barker, the Supreme Court rejected the
"demand-waiver" approach to speedy trial analysis, under which the defendant waives pretrial
delay that occurs prior to his making a demand. Id. at 529-30. In the Court's view, the defect
of this approach was that it presumed waiver of the right from a defendant's silence or inaction.
Id. at 525. The Court noted, however, that under the " 'intentional relinquishment or
abandonment' " standard, which it had previously employed for the waiver of other rights of the accused,
id. at 525-26 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)), delay for which the
defendant is responsible may be given effect as waiver.
36. Because the language of most state constitutional speedy trial provisions so closely tracks
that of the sixth amendment, federal constitutional analysis presumably controls the
interpretation of extraconstitutional provisions that are closely tied to the state constitutional guarantee.
But see note 19 supra.
37. See, e.g., Chester v. State, 298 So. 2d 529 (Dist- Ct. App. 1974), cert. denied, 310 So. 2d
304 (Fla. 1975); State v. Erickson, 241 N.W.2d 854 (N.D. 1976).
violates the defendant's rights, making it unnecessary to inquire into
such constitutional factors as prejudice to the defendant or his
assertion of the right. 4 2 Consequently, after the prescribed time period has
elapsed, the extraconstitutional right violation obviates the necessity of
determining whether any other speedy trial right, constitutional or
extraconstitutional, has been violated. 4 3 Yet these statutes and
rules--some of which are quite elaborate, replete with detailed
exceptions and exclusions 44--- can, in operation, provide more lax protection
than is constitutionally permissible by tolling the prescribed period
until an unconstitutionally long delay has transpired. Therefore, the
bare fact that a defendant's extraconstitutional rights have not been
violated does not compel the conclusion that his constitutional rights
have been vindicated.
Three distinct aspects of the right to a speedy trial-the multiple
sources of the right, the severity of the remedy, and possibility of
waiver of the right by the accused-have presented difficulty for the
courts. The first of these, the multiplicity of speedy trial rights, has
engendered in the decisional law an imprecision bordering on
confusion. Although the foregoing discussion indicates that at least some
courts are keenly aware of the distinction between the various speedy
trial rights, 45 the typical judicial decision, which does not discriminate
among the many, identically-labeled speedy trial rights, is inherently
ambiguous. Such broadranging discussion is often coupled with
reliance on inapposite authorities, which have decided speedy trial claims
arising from sources that are entirely distinct from the sources of the
claims asserted sub judice. Consequently, imprecise issue identification
hinders the coherent implementation of specific speedy trial rights. 4 6
Given the lack of uniformity and certainty in the case law, it is not
surprising that the severity of the sanction for violating a speedy trial
right also accounts in part for the infrequency with which such
violations are found. A number of courts have frankly expressed
reluctance concerning "[o]verzealous application" 47 of the " 'draconian
remedy' ",48 of dismissal With prejudice of all charges 4 9 to vindicate
what is perceived as an ephemeral right. The consistency with which
courts avoid holding that speedy trial rights have been denied---even in
cases of lengthy pretrial delay-by excusing the cause of delay
undoubtedly indicates that many judges have silently experienced a share
of the same reluctance.
One means by which this reluctance is effected, and a third factor
contributing to the infrequency with which extended delays are
classified as speedy trial violations, is the heavy judicial reliance on
waiver analysis to resolve speedy trial claims.50 Traditionally, waiver
has been defined as "an intentional relinquishment or abandonment of
a known right or privilege.15 1 It is a commonplace that courts often
find waiver where this strict standard is not factually satisfied, and this
is demonstrably true in cases deciding claims of speedy trial right
denial. Factors such as who may waive, how one waives, which right
is waived, the extent of waiver of each right, the standards for "intent"
and "knowledge," and many other variables are buried, unspecified
nebulous that it is "impossible to determine with precision when the right has been denied."
Barker v. Wingo, 407 U.S. 514, 521 (1972). Barker has, moreover, imposed a fact-permeated
analytical approach that grants a virtually determinative role to judicial sensibilities.
Consequentiy, the speedy trial guarantee does not necessarily confer, in practice, the same protection to
different defendants in substantially identical circumstances but before different judges. The
parallel but separate public policies that support the speedy trial guarantee highlight the varied
judicial perspectives. Historically, the purpose of a speedy criminal trial was to protect the
defendant by precluding undue pretrial incarceration, minimizing the anxiety accompanying
public accusation, and preventing delay that might hamper defense preparation for trial. Smith
v. Hooey, 393 U.S. 374, 377-78 (1969); United States v. Ewell, 383 U.S. 116, 120 (1966). More
recently, the advent of soaring crime rates, overburdened courts, and backlogged dockets has led
to judicial recognition of an independent "societal interest" in trying defendants speedily, Barker
v. Wingo, 407 U.S. 514, 519 (1972), in order to prevent them from committing crimes while
awaiting trial and to preclude defense utilization of lengthy delay for leverage in plea
negotiations. A judge who is more concerned with promoting the historical, rather than the
contemporary, purposes underlying the guarantee will be more prone to find a speedy trial right violation in
certain circumstances than will a colleague with reversed priorities. An extended period of
pretrial incarceration, for example, may impinge upon the historical purposes of the guarantee,
yet is unlikely to arouse the sympathies of a judge whose primary concern is the prevention of
criminal behavior by the defendant in the period between accusation and trial.
47. State v. Alfred, 337 So. 2d 1049, 1057 (La. 1976).
48. United States v. Jones, 524 F.2d 834, 852 (D.C. Cir. 1975).
49. See Appendix infra.
50. Waiver analysis is applicable even with respect to constitutional speedy trial adjudication.
See notes 35-36 supra and accompanying text.
51. Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
and unquantified, within the unwieldy and imprecise nature of the
strict waiver standard. Consequently, these factors are not addressed
in curt judicial declarations of waiver of some, part, or all of a
defendant's speedy trial rights. As judicially applied in speedy trial
cases, waiver is less a concept than a label; the term lends itself less to
analysis than to description of a result. Speedy trial right waiver may
be viewed more realistically as a function of circumstance and fortuity,
dependent primarily upon an individual judge's discretion, than as the
result of uniform application of meaningful general principles.
Following Barker, many courts have meshed waiver analysis into
the analytically prior determination of whether there transpired any
violation of defendants' speedy trial rights, which might have been
waived. In Barker, the Supreme Court articulated a four-pronged ad
hoc balancing test to be applied to resolve claims of federal
constitutional speedy trial right denial, comprised of the following criteria: (1)
length of pretrial delay, (2) reason(s) for the delay, (3) defendant's
assertion of his speedy trial right, and (4) prejudice to defendant
resulting from the delay.52 A number of decisions have incorporated
waiver theory-or, at least, waiver language-in considering the third
criterion. Doing so, however, leads not to a conclusion that defendant
waived his right to a speedy trial, or waived his right to complain that
this right was violated, but rather to the conclusion that no violation
even occurred: right forfeiture retroactively precludes right
attachment. As noted above, Barker's impact extends beyond application to
the federal constitutional right to virtually all state constitutional rights
and certain statutes and rules as well.5 3
PERMISSIBLE, UNASSERTABLE, WAIVED DELAYS: A SURVEY
A defendant's claim that any of his speedy trial rights has been
denied customarily must be brought before the trial court on a motion
to dismiss or quash the indictment or information, as appropriate,
pursuant to local procedural rules. Several speedy trial statutes and
rules specify that failure to make an appropriate motion prior to trial
or entry of a guilty plea constitutes a waiver of the statutory or rule
right, 54 and a number of courts construing nonspecific
extraconstitutional rights reach the same conclusion. 55 Although some courts
preting nonspecific statutes and rules countenance a dismissal motion
made at the time the case is called for trial,56 such dilatoriness by the
defense-particularly if pretrial delay is extended-is weighed heavily,
sometimes conclusively, against defendants who simultaneously assert
constitutional claims. 57 Failure to move for dismissal before the trial
court prior to conviction and appeal will, under general principles of
appellate review, preclude assertion of any speedy trial rights, whether
constitutional or extraconstitutional, 8 at least in the absence of
substantial prejudice to defendant. 59
Where a valid plea of guilty is entered in lieu of trial, it is generally
held that a defendant's failure to move for dismissal prior to entering
the plea bars him from subsequently raising any speedy trial claims. 60
Moreover, since speedy trial rights are not jurisdictional in nature,
they are waived by entry of a valid guilty plea 61 even if the defendant
56. Morse v. Municipal Court, 13 Cal. 3d 149, 529 P.2d 46, 118 Cal. Rptr. 14 (1974) (in
bank); State v. Steward, 168 Mont. 385, 543 P.2d
); People v. Bonterre, 87 Misc. 2d
243, 384 N.Y.S.2d 351 (Crim. Ct. N.Y. 1976).
57. United States v. Fasanaro, 471 F.2d 717 (2d Cir. 1973) (per curiam); United States v.
Jones, 475 F.2d 322 (D.C. Cir. 1973); State v. Carden, - Mont. _ 566 P.2d 780 (1977);
People v. Kornegay, 55 A.D.2d 462, 390 N.Y.S.2d 666 (3d Dep't 1977) (applying Barker criteria
to both state statutory and federal constitutional right).
58. People v. O'Donnell, 184 Colo. 104, 518 P.2d 945 (1974) (en banc) (state and federal
constitutional, and state statutory and rule, rights); People v. Bivens, 43 Il. App. 3d 79, 356
N.E.2d 665 (1976) (statutory right); Commonwealth v. Davis, 367 Mass. 422, 326 N.E.2d 17
(1975) (statutory right); People v. Adams, 38 N.Y.2d 605, 345 N.E.2d 318, 381 N.Y.S.2d 847
(1976) (federal constitutional right); Commonwealth v. Roundtree, 469 Pa. 241, 364 A.2d 1359
(1976) (state and federal constitutional rights at issue); State v. Whittier, 13 Wash. App. 293, 535
P.2d 847 (1975) (rule right). It should be remarked, however, that this rule of nonreiewability is
customarily honored in the breach rather than in the observance: perhaps in order to preclude
subsequent post-conviction attacks on the effectiveness of defense counsel for failure to assert the
speedy trial claims, virtually all cases proceed to at least a summary dictum on the merits after an
obeisance in the direction of the general rule of nonreviewability.
59. Broadnax v. State, 54 Ala. App. 546, 310 So. 2d 265 (1975); State v. Raffaele, 113 Ariz.
259, 550 P.2d 1060 (1976) (en banc).
60. See, e.g., People v. Bivens, 43 ll1. App. 3d 79, 356 N.E.2d 665 (1976).
61. Hulstine v. State, 533 S.W.2d 2
28 (Mo. Ct. App. 1975
) (construing statutory right);
Garrett v. State, 534 S.W.2d 325
(Tenn. Crim. App. 1975)
(federal constitutional right); Foster v.
State, 70 Wis. 2d 12, 233 N.W.2d 411 (1975) (federal constitutional right). The only jurisdiction
notably excepted from this generalization is New York. In People v. Chirieleison, 3 N.Y.2d 170,
143 N.E.2d 914, 164 N.Y.S.2d 726 (1957), the Court of Appeals reasoned that the statutory
speedy trial right was not jurisdictional in nature but that improper denial of a defendant's
motion to dismiss because of impermissible delay, coupled with the state's breach of its duty to try
defendant quickly, would not justify compelling defendant to stand trial solely to preserve the
speedy trial issue. Although the Chirieleison opinion remarked that waiver of speedy trial rights
by guilty plea would be possible "in other circumstances," subsequent decisions have uniformly
cited it for the proposition that a defendant has the right to raise any claim of speedy trial
violation following a plea of guilty. See, e.g., People v. Blakley, 34 N.Y.2d 311, 314, 313
N.E.2d 763, 764, 357 N.Y.S.2d 459, 461 (1974) (state statutory and federal constitutional rights).
It might be observed that the Chirieleison court could have resolved the dilemma it faced by
ruling that the guilty plea was invalid, as non-"knowing" and "intelligent," because it was
previously has asserted a speedy trial denial. 62 Waiver by guilty plea,
however, is contingent upon the validity of the plea. If the guilty plea
is invalid because it is "coerced," as by the prosecution's insistence that
the speedy trial violation be waived in return for a reduced charge, 63
or because it is "not knowledgeably entered," as when based on the
defendant's misunderstanding that he could preserve the speedy trial
issue on appeal despite the plea, 64 no effective waiver results.
In the event that a timely motion for dismissal is made, the nature of
the showing that the defendant must make in order to prevail, as well
as the responsive burden falling to the prosecution, depends upon the
type of speedy trial right at issue. If violation of an extraconstitutional
right is alleged, the burdens of persuasion and proof will ordinarily be
controlled by local procedural statutes or rules: generalizations are
difficult to make other than to note that it is necessarily defendant's
burden to establish facts which demonstrate that his
extraconstitutional right has been violated. In some jurisdictions this burden is met
with proof that the prescribed time period has elapsed without trial,
and it is then the prosecution's burden to demonstrate that "good
cause" exists to excuse the lack of trial. 65 Elsewhere, the defendant
must affirmatively establish not only the expiration of the prescribed
period absent trial, but also that he did not cause the delay of his
trial.66 Indeed, which party bears the burden of accounting for pretrial
delay may shift, within a single jurisdiction, from prosecution to
defendant depending on the circumstances. 67 If breach of an
extraconstitutional speedy trial right is established, the prosecution bears
the burden of establishing defendant's waiver of that right. 6 8
predicated on the incorrect assumption that the defendant had no valid claim of speedy trial
violation to assert. See notes 63-64 infra and accompanying text.
62. State v. Bridges, 20 Ariz. App. 273, 512 P.2d 36 (1973) (state and federal constitutional
rights). As already discussed, note 61 supra, this is not the rule in New York. See People v.
Rathbun, 48 A.D.2d 149, 368 N.Y.S.2d 317 (3d Dep't 1975).
63. People v. White, 32 N.Y.2d 393, 298 N.E.2d 659, 345 N.Y.S.2d 513 (1973) (statutory
and federal constitutional right).
64. Foster v. State, 70 Wis. 2d 12, 233 N.W.2d 411 (1975) (statutory right). Whether a plea of
nolo contendere constitutes a waiver of antecedent claims of speedy trial denial depends upon the
statutory status accorded such a plea. Compare Cooksey v. State, 524 P.2d 1251 (Alaska 1974)
(constitutional right waived by plea of nolo contendere) with Siders v. State, 342 So. 2d 1013
(Fla. Dist. Ct. App. 1977) (nolo plea, unlike guilty plea, permits appellate review of speedy trial
65. Bellizzi v. Superior Court, 12 Cal. 3d 33, 524 P.2d 148, 115 Cal, Rptr. 52 (1974), cert.
denied, 420 U.S. 1003 (1975); State v. Johnson, 201 Neb. 322, 268 N.W.2d 85 (1978); People v.
McLaurin, 38 N.Y.2d 123, 341 N.E.2d 250, 378 N.Y.S.2d 692 (1975).
66. See, e.g., People v. Beyah, 67 Ill. 2d 423, 367 N.E.2d 13
67. In Arkansas, for example, if an accused remains incarcerated on the pending charges
prior to trial, it is the state's burden, upon a defense motion for dismissal, to show that failure to
try the defendant within the prescribed period is justified. If, however, the accused is free on ball,
it is his burden to show that he did not occasion the pretrial delay. Holland v. State, 252 Ark.
730, 480 S.W.2d 597 (1972).
68. See, e.g., Parker v. State, 135 Ga. App. 620, 218 S.E.2d 324 (1975).
If violation of a constitutional speedy trial right is claimed, the
defendant has the burden of going forward with a prima facie case of
right deprivation by showing that a delay of "presumptively
prejudicial" 69 length has transpired.7 0 How long a delay must extend to
become "presumptively prejudicial" is not fully settled, 71 and there is
substantial disparity in the case law as to the proper method by which
to compute this period of delay. 72 If the court concludes that a
presumptively prejudicial delay has been demonstrated by the
defendant, the court then inquires into the other factors that go into the
Barker balance and proceeds through a balancing analysis. 73 The issue
69. The delay must be "presumptively prejudicial" within the meaning of the "length of
delay" factor of Barker v. Wingo-, 407 U.S. 514, 530 (1972).
70. Id.; see Morris v. ,Vyrick, 516 F.2d 1387 (8th Cir.), cert. denied, 423 U.S. 925 (1975);
State v. Almeida, 54 Hawaii 443, 509 P.2d 549 (1973); People v. Ward, 85 Mich. App. 473, 271
N.W.2d 280 (1978).
71. There seems general agreement that any delay of eight months or longer is "presumptively
prejudicial." See, e.g., Smith v. Mabry, 564 F.2d 249 (8th Cir. 1977) (ten months), cet. denied,
435 U.S. 907 (1978); State v. Ballinger, 110 Ariz. 422, 520 P.2d 294 (1974) (almost eleven
months); People v. Hughes, 38 Cal. App. 3d 670, 113 Cal. Rptr. 508 (1974) (eight months); State
v. Brown, 172 Conn. 531, 375 A.2d 1024 (nine months), cert. denied, 434 U.S. 847 (1977);
Commonwealth v. Cooke, 4 Mass. App. Ct. 775, 341 N.E.2d 907 (1976) (eleven months); Green
v. State, 75 Wis. 2d 631, 250 N.W.2d 305 (almost twelve months), cert. denied, 434 U.S. 841
(1977). Furthermore, there is apparent consensus that delay of less than five months is, in the
absence of a statute or rule specifying a shorter period, see text accompanying notes 38, 41 supra.
insufficiently "prejudicial" to trigger further constitutional inquiry. See, e.g., United States v.
Stoker, 522 F.2d 576 (10th Cir. 1975) (less than three months); Boyd v. State, 133 Ga. App. 395,
211 S.E.2d 22 (1974) (three months); People v. Ward, 85 Mich. App. 473, 271 N.W. 2d 280
(1978) (five months). There is judicial disagreement as to the six to seven month range, the
majority holding a delay of this length "presumptively prejudicial." See United States v.
Simmons, 536 F.2d 827 (9th Cir.) (six months), cert. denied, 429 U.S. 854 (1976); State v
Almeida, 54 Hawaii 443, 509 P.2d 549 (1973) (seven months); State v. Corarito, 268 N.W,2d 79
(Minn. 1978) (six months). But see Davis v. State, 32 Md. App. 318, 323, 360 A.2d 467, 471
(1976) ("[slightly less than seven months is] not sufficiently inordinate to constitute a 'triggering
72. Some jurisdictions calculate the "length of delay" for constitutional purposes not simply
by adding together the number of days between accusation and trial but rather by deducting from
this total pretrial period the number of days' delay caused by, or attributable to, either the
defense or circumstances otherwise beyond the prosecution's control. Only delay caused by, or
attributable to, the prosecution is considered within "length of delay" under this approach. See,
e.g., Prince v. Alabama, 507 F.2d 693 (5th Cir.) (en banc), cert. denied, 423 U.S. 876 (1975);
State v. Steeves, 383 A.2d 1379 (Me. 1978); Isaacs v. State, 31 Md. App. 604, 358 A.2d 273
(1976); People v. Ward, 85 Mich. App. 473, 271 N.W.2d 280 (1978). Arguably this method of
calculation defeats the purpose underlying use of the "length of delay" factor to provide a
first-blush, "presumptively prejudicial," criterion to trigger further constitutional inquiry. This
approach calls into play a number of the other constitutional criteria, specifically, "reason for
delay" and "defendant's assertion of his right," in a subsidiary capaity and thus effectively
permits summary disposition of constitutional claims without a measured balancing of all
elements of the Barker v. Wingo test. Certainly, this approach was not employed in the Barker
opinion. In Barker "length of delay" was equated with the calendar delay of "well over five
years," of which "some delay would have been permissible" but most "was attributable to the
Commonwealth's failure or inability to try (defendant]." 407 U.S. at 533-34.
73. Barker v. Wingo, 407 U.S. 514, 530 (1972).
of ultimate burden of proof has not been addressed specifically in the
decisions, probably because it is unhelpful given the fluidity and
subjectivity of the judicial inquiry involved. 74
The cases reflect a number of recurring fact patterns which tend
consistently to generate pretrial delay and, consequently, to raise two
issues: whether such delay violates any of the speedy trial rights
conferred on the defendant, and-antecedent or subsequent to that
question 7 -- whether the defendant is to be precluded from effectively
asserting the delay as violative of his speedy trial rights. For purposes
of analysis, these recurring fact patterns can be segregated into three
broad categories: one, situations in which pretrial delay results from
the affirmative action of the defendant or defense counsel; two,
situations in which the defendant or defense counsel, while not immediately
causing pretrial delay, could act affirmatively to prevent it but do
not; and, three, situations in which pretrial delay results from
circdmstances beyond the control of the defendant and defense counsel. While
the classification of any specific fact pattern may be somewhat
arbitrary, 7 6 it does facilitate empirical examination of the resolutions
that different judges reach in similar circumstances.
1. Delay Resulting from Affirmative Action of Defendant or Defense
Predictably, courts are seldom receptive to allegations that speedy
trial rights have been denied as a result of delays engendered by
affirmative action either of the defendant or of defense counsel. A wide
variety of acts, legal and illegal, are performed by defendants with the
intent or the effect of delaying, if not avoiding, trial.7 7 The most
74. The decisions speak broadly of the prosecution's fundamental "burden" to ensure that
defendant is brought to trial in accordance with his speedy trial rights, United States v. Latimer,
511 F.2d 498 (10th Cir. 1975) (federal constitutional right), but this phraseology is traceable to a
nonspecific dictum in Barker: "A defendant has no duty to bring himself to trial; the State has
that duty ....... 407 U.S. at 527.
75. See pt. I(B) supra.
76. Thus what one judge may classify as delay resulting from affirmative defense action (such
as a successful motion for certain discovery) may be viewed by another as delay due to
circumstances beyond defendant's control (assuming that such discovery motion is necessitated by
prosecutorial dilatoriness or misconduct) or seen by a third as delay attributable to defendant's
inaction (because of defendant's failure to tender the motion until the very end of a time-precise
statutory or rule period).
77. Some of the more common means of avoiding trial include: defendant's failure to identify
himself accurately for police, State v. Belland, 24 Ariz. App. 87, 535 P.2d 1318 (1975) (rule right);
defendant's failure to provide police with his proper or complete address, People v. Davis, 80
Misc. 2d 301, 363 N.Y.S.2d 281 (Sup. Ct. 1975) (federal constitutional right); defendant's waiting
until the end of the prescribed period to file a jury waiver (thereby precluding jury selection and
common illegal act by which a defendant causes pretrial delay is flight
or other unexcused absence from proceedings involving the charges
against him. Most speedy trial statutes and rules explicitly provide that
any delay resulting from the absence or unavailability of the accused is
not to be considered in computing the prescribed period within which
trial must otherwise commence. 78 Even in the absence of a specific
provision to that effect, the cases reflect the conclusion that a
defendant's escape or voluntary nonappearance bars him from asserting any
extraconstitutional right to complain of resulting delay.7 9 In some
jurisdictions, such nonappearance waives the entirety of the
timeprecise right, which attaches anew only upon the defendant's return or
recapture.8 0 Similarly, under statutes or rules which require that a
defendant formally demand a speedy trial to trigger commencement of
the time-precise period, subsequent escape amounts to waiver of the
demand.8 1 Constitutionally, such flight or voluntary nonappearance is
weighed heavily against a defendant who claims breach of sixth
amendment or state constitutional rights by virtue of the resulting
delay, 8 2 and escape has been expressly held to be a waiver of such
disrupting court scheduling), Lewis v. State, 165 Ind. App. 267, 332 N.E.2d 107 (1975) (rule
right); defendant's attempt to procure prosecution witness' absence, Boyd v. State, 133 Ga. App.
395, 211 S.E.2d 22 (1974) (federal constitutional right); and defendant's attempted suicide,
necessitating medical care, People v. Manina, 45 Cal. App. 3d 896, 120 Cal. Rptr. 51 (1975)
(statutory and constitutional rights). In each of these situations, the cases deemed the resulting
delay excusable and nonviolative of the respective speedy trial rights at issue.
78. Alaska R. Crim. P. 45(d)(4); Ariz. R. Crim. P. 8.4(a); Ark. R. Crim. P. 28.3(e); Cal. Penal
Code § 1382(2)-(3) (West Supp. 1979); Colo. R. Crim. P. 48(b)(6)(IV) & Colo. Rev. Stat.
§ 18-1-405(6) (1973); Fla. R. Crim. P. 3.191(e); La. Code Crim. Proc. Ann. art. 579(l) (1967); Mo.
Ann. Stat. § 545.780(3)(2) (Vernon Supp. 1980); Neb. Rev. Stat. § 29-1207(4)td) (1975); N.Y.
Crim. Proc. Law § 30.30(4)(c) (McKinney Supp. 1979); N.C. Gen. Stat. § ISA-701(b)(3) (Supp.
1979); Ohio Rev. Code Ann. § 2945.72(A) (Page 1975); Pa. R. Crim. P. ll00(d).l); Va. Code
§ 19.2-243(4) (1975); Wash. R_ Crim. P. 3.3(f); W. Va. Code § 62-3-21 (1977); Interstate Agreement
on Detainers art. 111(t); Uniform Mandatory Disposition of Detainers Act § 4. However, the
extraconstitutional right is waived only to the extent that defendant's flight actually causes delay.
if his absconding occasions no delay it is not excludable. Commonwealth v. Lewis, 237 Pa.
Super. 357, 352 A.2d
). If, on the other hand, defendant's absence does disrupt the
schedule of proceedings, defendant is barred from asserting, as violative of his extraconstitutional
rights, not only the period actually elapsing during his absence but also the resulting delay in
re-docketing the case on the trial calendar. People v. Hayes, 48 Ill.App. 3d 459, 363 N.E.2d 84
(1977); State v. Lyles, 225 N.W.2d 124, 126 (Iowa 1975) ("The State's duty to provide a
defendant with a speedy trial does not require that it play a game of hide-and-go-seek with him");
State v. Sherman, 217 Kan. 326, 536 P.2d 1373 (1975).
79. State v. Brandt, 253 N.W.2d 253 (Iowa 1977); State v. Welch, 212 Kan. 180, 509 P.Zd
1125 (1973); People v. Patterson, 38 N.Y.2d 623, 345 N.E.2d 330, 381 N.Y.S.2d 858 (1976).
80. See, e.g., Holmes v. State, 136 Ga. App. 572, 222 S.E.2d 121 (1975); State v. Howard,
325 So. 2d 812 (La. 1976).
81. Holmes v. State, 136 Ga. App. 572, 222 S.E.2d 121 (1975); Interstate Agreement on
Detainers art. I(f); Uniform Mandatory Disposition of Detainers Act § 4.
82. Boyd v. State, 133 Ga. App. 395, 211 S.E.2d 22 (1974).
83. United States v. DeTienne, 468 F.2d 151 (7th Cir. 1972), cert. denied, 410 U.S. 911
Different considerations are presented when the defendant's
delayproducing act is lawful, indeed constitutionally protected, such as the
exercise of his right to counsel of his choice by substituting counsel
after arrest but before trial. In such circumstances new counsel will
necessarily require time to prepare for trial. Ordinarily, if the
substitution is effected well in advance, trial need not be delayed and no
speedy trial issue should arise. 84 If, however, the defendant substitutes
new counsel shortly before trial, necessitating a continuance for trial
preparation purposes, and the defendant subsequently complains of
the delay, a number of constitutional rights must be considered by the
court: not only defendant's speedy trial rights, but also his rights to
counsel of his choice, to effective assistance of counsel, and to a fair
trial. 85 Uniformly, resolution of the speedy trial question has been
eminently pragmatic, with courts refusing to countenance a
defendant's attempt to manipulate speedy trial rights when the court has
acceded to change of counsel requests in order to preclude deprivation
of counsel and fair trial rights.8 6 Therefore, a defendant is barred from
insisting upon discharge for having thus delayed trial beyond any
applicable statutory or rule period. 87 In the same fashion, delay
attributable to pretrial counsel substitution is not considered cause,
alone or in conjunction with other delays, for finding constitutional
speedy trial right violations. 88
Just as the pretrial delay personally caused by defendant may not
normally be asserted as causing or contributing to speedy trial right
deprivation, the delay generated by pretrial preparation and defense
against the prosecution's charges also does not customarily violate the
speedy trial right. Chronologically, the first opportunity given certain
defendants to retard progress of the prosecution may arise in
extradition proceedings. The same statutory and rule provisions that dictate
tolling of the prescribed time periods for the absence or unavailability
of the accused also include language covering situations in which the
(1973); People v. Washington, 49 A.D.2d 914, 374 N.Y.S.2d 34 (2d Dep't. 1975); Foster v. State,
75 Wis. 2d 12, 233 N.W.2d 411 (1975).
84. Consequently, it is improper for the trial court to impose a delay on the assumption that
new counsel will require more time to prepare than remains within the applicable statutory or
rule period. Simpson v. State, 165 Ind. App. 285, 332 N.E.2d 112 (1975).
85. See U.S. Const. amend. VI.
86. "Surely, if the case had gone to trial as scheduled and defendant convicted, he would now
be contending that he had been denied a fair trial because his counsel did not have adequate time
to prepare his defense." State v. Dowell, 16 Wash. App. 583, 588 n.1, 557 P.2d 857, 860 n.1
87. Id.; State v. Lewis, 112 Ariz. 38, 537 P.2d 25 (1975); People v. Todd, 34 Ill. App. 3d 844,
340 N.E.2d 669 (1976); State v. Shockey, 214 N.W.2d 146 (Iowa 1974); State v. Lewis, 220 Kan.
791, 556 P.2d 888 (1976); People v. Patterson, 38 N.Y.2d 623, 345 N.E.2d 330, 381 N.Y.S.2d
88. People v. Powell, 40 Cal. App. 3d 107, 115 Cal. Rptr. 109 (1974), cert. denied, 420 U.S.
); Scarbrough v. State, 76 Wis. 2d 87, 250 N.W.2d 354 (1977).
defendant's whereabouts are known but he resists being returned.8 9 In
addition, certain of these provisions carve out from consideration any
delay due to the pendency of extradition proceedings. 90 Under these,
as well as under nonspecific extraconstitutional enactments, a
defendant's refusal to waive extradition precludes him from successfully
asserting that he was denied a speedy trial to the extent of consequent
delay. 91 Similarly, a defendant's affirmative action in attempting to
rbilgohctks htois tehxetrasdaimtioeneixstehnetl.d92 a waiver of his constitutional speedy trial
Once personal jurisdiction over defendant is securely exercised, two
parallel processes usually commence in tandem, one on the record, the
other not. The recorded process revolves around procedural and
discovery motions and related proceedings, including appeals; the
unrecorded process involves negotiations directed toward entry of a
plea of guilty. Both of these processes involve delays that have been
claimed to be violative of speedy trial rights.
Several variables influence whether, or to what extent, a pretrial
motion may result in delay which can be asserted as violative of speedy
trial rights, including the nature and scope of the motion and resulting
delay; timeliness, and timing, of the motion; and responses to it by the
court and the other party. Some statutes and rules explicitly prevent
delay occasioned by pretrial motions from serving as the basis for
successful claims of speedy trial right denial.9 3 Most, however, are
silent on the subject, and extensive case law has developed. A cardinal
principle articulated in the decisions is that the mere filing of a defense
motion, as for discovery, does not cause delay per se. Therefore, if the
defendant is not to be tried within any applicable prescribed time
period, he is not precluded from successfully asserting subsequent
claims of speedy trial deprivation unless a court has determined that
the motion in fact caused delay and that such delay prevented
defendant's timely trial. 94 Further, even if delay of some duration has
occurred, the defendant is not barred from asserting his right to trial
within the applicable prescribed period if the motion was timely
made 95 but the prosecution is dilatory in responding 96 or the court in
ruling. 9v When, however, numerous, complex, or other
timeconsuming defense discovery motions in fact generate delay, 9 8
especially if they are filed so close to the time of trial or the expiration date
of the prescribed period that they cannot be opposed, heard, and
decided within the time remaining, 99 a defendant forfeits his right to
insist on strict adherence to the period's time limits. Conversely, the
prosecution may violate defendant's extraconstitutional right to trial
within the prescribed period by demanding extensive discovery from
defendant when the response time exceeds time remaining before trial
and within the period, necessitating a continuance.10 0 The same
considerations control decision of speedy trial claims arising from other
pretrial defense motions (except for continuance motions) that result in
delay. These include motions for change of venue, 10 1 psychiatric
examination of defendant,10 2 suppression of evidence,' 0 3 substitution
obviously have no effect on the statutory period. Yet the issue has been litigated. Simpson v.
State, 165 Ind. App. 285, 332 N.E.2d 112 (1975).
95. State v. Durham, 13 Wash. App. 675, 537 P.2d 816 (1975). For example, the motion
would be timely if made upon arraignment or well before the expiration of the prescribed time
96. People v. Neideffer, 25 Ill. App. 3d 819, 324 N.E.2d 46 (1975); People v. Nunnery, 54 I1.
2d 372, 297 N.E.2d 1
97. People v. Johnson, 38 N.Y.2d 271, 342 N.E.2d 525, 379 N.Y.S.2d 735 (1975). Some
statutes and rules expressly limit the length of time a court -.an keep a motion under consideration
without having this period of delay inserted in the formula that determines whether defendant
was tried within the prescribed time period. Speedy Trial Act of 1974, 18 U.S.C. § 3161(h)(l)(G)
(1976) (no more than 30 days excluded for the consideration of any motion); Alaska R. Crim. P.
45(d)(1) (same); Ark. R. Crim. P. 28.3(a) (same); Mo. Ann. Stat. § 545.780(3)(1)(e) (Vernon Supp.
of judges, 10 4 severance, 1 05 trial transcript' 0 6 or dismissal of charges.' 0 7
In resolving constitutional speedy trial claims in such cases, the
decisions reflect judicial refusal to permit the defense to capitalize on
delay attributable to a defendant's pretrial motions, provided that the
court rules upon them within a reasonable time. 108 In weighing delays
necessary for hearing and decision of nonfrivolous and timely filed
pretrial motions, other than for a continuance, the courts generally do
not permit a defendant to complain of "self-caused delay" so long as no
suggestions of bad faith or dilatoriness are present,10 9 and a number of
courts hold that in these circumstances neither defense nor prosecution
motions cause "delay" within the meaning of the Barker test. 1 10
Defense motions, or acquiescence in others' motions, for pretrial
Moreover, a variant of the demand-waiver rule, that precludes a
defendant from asserting speedy trial right denial absent affirmative
action by demand, is enforced in at least one situation under
nondemand, time-precise enactments. Where the court schedules trial
beyond the applicable time limits and defense counsel fails to so
apprise the court, defense inaction is deemed acquiescence in the
scheduled date and the defendant is foreclosed from successfully
asserting extraconstitutional speedy trial right denial.' 47 No such
waiver, however, results from inaction of a defendant who is neither
represented nor appears personally under similar circumstances. 48
If the defendant's negligence occasions delay, he is generally
precluded from asserting that his extraconstitutional speedy trial has been
violated as a result. For example, in addition to the procedural
defaults discussed earlier, 149 the failure of a defendant experiencing
delay to adhere to prescribed statutory or rule procedure for securing a
speedy trial leads to a forfeiture of his statutory or rule right. 50 In the
same manner it is held that delay engendered by defense failure to
comply with prosecution discovery requests cannot properly form the
basis of assertions of speedy trial right denial.' 5 1 Certain speedy trial
statutes and rules, moreover, specifically preclude defendants from
successfully raising claims of right denial as a result of delay arising
from the defendant's neglect. 152
Unpreventable Delay Due to Circumstances Beyond Defendant's
Circumstances which are, strictly speaking, beyond the control of
the defendant or defense counsel often generate pretrial delay. Some of
these are, in varying degrees of immediacy and directness, traceable to
the defendant's criminal conduct, while others stand more or less fully
unrelated. When this dichotomy is applied analytically, uniformity is
discernible in the cases in which delay stems from the defendant's
criminal conduct, regardless of whether it is related to the instant
prosecution. Delay spawned by more neutral circumstances, however,
produces considerable unpredictability in result forecasting.
To the extent that pretrial delay can be traced directly to the
criminal conduct for which charges are pending, the delay is generally
considered not to be in derogation of the defendant's speedy trial
rights. This rule is applied, for example, when delay emanates from
the complexity of the crime at issue and the consequent need for
protracted investigation;15 3 from the aftermath of the conduct, such as
necessary convalescence of injured victims or witnesses who are
lengthily incapacitated from testifying at trial; 15 4 and from related
criminal,' 5 5 and occasionally civil,' 5 6 proceedings that arise from the
charged criminal conduct and that will dispose of pivotal legal
issues. Similarly, if the defendant is charged with an offense when his
codefendant is ill, 15 7 missing, 15 8 or may permissibly be tried after the
153. Speedy Trial Act of 1974, 18 U.S.C. § 3161(h)(8)(B)(ii) (1976); Alaska R. Crim. P.
45(d)(3)(b); Ariz. R. Crim. P. 8.1(e); Ark. R. Crim. P. 28.3(d)(ii); Colo. R. Crim. P.
48(b)(6)(VI1)(B) & Colo. Rev. Stat. § 18-1-405(6)(g)(II) (1973); Mich. Gen. Ct. R. 789.2(3); Neb.
Rev. Stat. § 29-1207(4)(c)(ii) (1975); N.Y. Crim. Proc. Law § 30.30(4)(g)(ii) (McKinney Supp.
1979); N.C. Gen. Stat. § 1SA-701(b)(7)(b) (Supp. 1979). See also provisions cited note 118 supra.
The decisions reach the same result. United States v. Avalos, 541 F.2d 1100 (5th Cir. 1976)
(federal constitutional right), cert. denied, 430 U.S. 970 (1977); United States v. Stoker, 522 F.2d
576 (10th Cir. 1975) (same); United States v. Rollins, 487 F.2d 409 (2d Cir. 1973) (rule right);
State v. Alfred, 337 So. 2d 1049 (La. 1976); Commonwealth v. Boyd, 367 Mass. 169, 326 N.E.2d
320 (1975); People v. Taranovich, 37 N.Y.2d 442, 335 N.E.2d 303, 373 N.Y.S.2d 79 (1975)
(federal constitutional and state statutory rights). See generally Barker v. Wingo, 407 U.S. 514,
) ("the delay that can be tolerated for an ordinary street crime is considerably less than
for a serious, complex conspiracy charge'. However, the length of acceptable delay for extended
investigation or prosecution preparation is in some jurisdictions expressly limited. Colo. R. Crim.
P. 48(b)(6)(VII) & Colo. Rev. Stat. § 18-1-405(6)(g) (1973) (six months); Ill. Ann. Stat. ch. 38,
§ 103-5(c) (Smith-Hurd 1970) (60 days); Ind. R. Crim. P. 4(D) (90 days); Kan. Stat. Ann.
§ 22-3402(3)(c) (Supp. 1978) (120 days). See also note 111 supra (provisions of more general
applicability, with like result).
154. Torres v. Florida, 477 F.2d 555 (5th Cir.), cert. denied, 414 U.S. 852 (1973); People v.
Goodman, 41 N.Y.2d 888, 362 N.E.2d 615, 393 N.Y.S.2d 985 (1977).
155. People v. Rarback, 40 N.Y.2d 922, 923, 358 N.E.2d 267, 267, 389 N.Y.S.2d 574, 575
(1976) (mem.) ("the protracted pendency of appeals in directly related cases involving the
admissibility in this case of crucial evidence, properly moved the courts below to conclude that
this defendant was not denied his [federal] constitutional or [state] statutory right to a speedy
trial"). However, -the mere pendency of an appeal, in an unrelated criminal action, which might
prompt appellate discussion of germane issues does not, automatically, toll defendant's speedy
trial right. People v. Gandhi, 84 Misc. 2d 231, 375 N.Y.S.2d 556 (Sup. Ct. 1975) (statutory right
at issue); cf. People v Panarella, 50 A.D.2d 304, 377 N.Y.S.2d 709 (3d Dep't 1975) (defense
counsel's acquiescence in continued pendency of state prosecution during concurrent federal
proceedings effectively waived defendant's right to a federal constitutional/state statutory speedy
156. United States v. Atkins, 528 F.2d 1352 (5th Cir.) (delay in draft evasion prosecution due
to government's desire to await resolution of defendant's draft classification in contemporaneous
civil action violates none of defendant's speedy trial rights), cert. denied, 429 U.S. 939 (1976).
157. Batey v. Superior Court, 71 Cal. App. 3d 952, 139 Cal. Rptr. 689 (1977) (state statutory
right at issue).
158. United States v. Avalos, 541 F.2d 1100 (5th CLr. 1976) (federal constitutional right
involved), cert. denied, 430 U.S. 970 (1977).
defendant's time-precise period expires, 159 the resulting delay neither
causes nor contributes to any violation of the defendant's speedy trial
rights, provided there exists good cause for not severing the joint
indictment or information.
If extraneous criminal conduct of defendant provokes delay-that is,
criminal conduct other than that at issue in the litigation in which
speedy trial claims are raised-that delay is not deemed to deprive a
defendant of his rights to a speedy trial. Such nonviolative delay
commonly arises when the defendant is tried on other charges during
the pretrial period. 161 The mere incarceration of the defendant
following conviction of another crime, however, does not constitutionally
excuse the failure to try him speedily. It may, indeed, serve to secure
additional extraconstitutional speedy trial rights to the defendant. 162
159. Speedy Trial Act of 1974, 18 U.S.C. § 3161(h)(7) (1976); Alaska R. Crim. P. 45(d)(5);
Ariz. R_ Crim. P. 8.4(e); Ark. R. Crim. P. 28.3(g); Colo. R. Crim. P. 48(b)(6)(11) & Colo. Rev. Stat.
§ 18-1-405-(6)(c) (1973); Fla. R_ Crim. P. 3.191(f)(v); Mich. Gen. Ct. R. 789.2(4); Mo. Ann. Stat.
§ 545.780(3)(4) (Vernon Supp. 1980); Neb. Rev. Stat. § 29-1207(4)(c) (1975); N.Y. Crim. Proc. Law.
§ 30.30(4)(d) McKinney Supp. 1979); N.C. Gen. Stat. § 15A-701(b)(6) (Supp. 1979); cf. Va. Code
§ 19.2-243(3) (1975) (delay caused by separate trial ordered at request of codefendant jointly
indicted with defendant).
160. Illustrative of decisions compelling severance is State v. Rueckert, 221 Kan. 727, 561
P.2d 850 (1977), which held that defendant's statutory right to a speedy trial within a defined
period "could not be sacrificed merely because defendant was undergoing a competency
determination." Id. at 731, 561 P.2d at 855. Consequently, the court allowed severance. Id.
161. United States v. Cook, 463 F.2d 123 (5th Cir. 1972) (constitutional rights); Arnold v.
State, 239 Ga. 752, 238 S.E.2d 876 (1977); State v. King, 225 N.W.2d 337 (Iowa 1975); Speedy
Trial Act of 1974, 18 U.S.C. § 3161(h)(1)(c) (1976); Alaska R. Crim. P. 45(d)(1); Ark. R. Crim. P.
28.3(a); Ill.Ann. Stat. ch. 38, § 103-5(e) (Smith-Hurd 1970); Mich. Gen. Ct. R. 789.2(l); Mo.
Ann. Stat. § 545.780(3)(1)(b) (Vernon Supp. 1980); Neb. Rev. Stat. § 29-1207(4)(a) (1975); N.C.
Gen. Stat. § 15A-701(b)(1)(b) (Supp. 1979); Ohio Rev. Code Ann. § 2945.72(A) (Page 1975);
Wash. R. Crim. P. 3.3(d)(2).
162. Dickey v. Florida, 398 U.S. 30 (1970) (federal constitutional right); Smith v. Hooey, 393
U.S. 374 (1969) (same); Barker v. Municipal Court, 64 Cal. 2d 806, 415 P.2d 809, 51 Cal. Rptr.
921 (1966) (state constitutional and statutory rights); State v. Hamilton, 268 N.W.2d 56 (Minn.
1978) (state and federal constitutional rights); People v. Winfrey, 20 N.Y.2d 138, 228 N.E.2d
808, 281 N.Y.S.2d 823 (1967) (state statutory right); Commonwealth v. Clark, 443 Pa. 318. 279
A.2d 41 (1971) (state and federal constitutional rights, and statutory rights). Moreover, the
Interstate Agreement on Detainers and the Uniform Mandatory Disposition of Detainers Act
provide extraconstitutional mechanisms through which incarcerated defendants may insist upon,
or are automatically entitled to, speedy trial on charges pending in a foreign or home jurisdiction.
Other speedy trial statutes and rules similarly confer additional extraconstitutional protection
upon incarcerated defendants. For example, many provide that defendants in custody are to
receive preferences in the setting of dates for trial over non-custodial defendants. Alaska R. Crim.
P. 45(a); Ariz. R. Crim. P. 8.1(b); Ark. R. Crim. P. 27.1(b); Mich. Gen. CL R. 789.1(2); Neb.
Rev. Stat. § 29-1205(2) (1975); N.Y. Crim. Proc. Law § 30.20(2) (McKinney Supp. 1979). Others
confer upon incarcerated defendants the right to trial within a fixed time period shorter than that
within which noncustodial defendants must be tried. Ariz. R. Crim. P. 8.2(b)-(c) (the shorter of
60 days from arraignment or 90 days from initial appearance if defendant is incarcerated; if
defendant is at liberty or on ball the period is the shorter of 120 days from initial appearance or 90
days from arraignment); Ark. R. Crim. P. 28.1(b)-(c) (trial within nine months or by end of
second full term of court following arrest or charging of incarcerated defendant; trial by end of
Yet the pretrial delay incident to the defendant's detention in another
jurisdiction, even absent defense resistance to extradition, 163 will often
be excluded from the time-precise period within which trial must
commence. 164 The same result obtains under constitutional
Pretrial delay growing out of circumstances neither within the
defendant's control nor proximately traceable to his criminal conduct is
treated by the courts in a less uniform manner. Certain statutes or
rules state that delay occasioned by trial calendar congestion may, in
various situations or under select conditions, be carved out in
calculating whether applicable prescribed periods for trial have elapsed.' 66
Others dictate that in no case may such delay be carved out and
thereby tolerated. 167 The decisions interpreting nonspecific
extraconstitutional rights come down on both sides of the issue, some
effectively excluding such delay from consideration in measuring
expiration of time-precise periods, 168 others refusing to exclude it.169
third full court term if defendant is at liberty or on bail); Ill. Ann. Stat. ch. 38, § 103-5(a)-(b)
(Smith-Hurd 1970) (120 vs. 160 days); Ind. R. Crim. P. 4(A), (C) (six months vs. one year); Kan.
Stat. Ann. § 22-3402(1)-(2) (Supp. 1978) (90 vs. 180 days). Utah Code Ann. § 77-8(6) (1978) (30
days vs. first day of next succeeding court session); Va. Code § 19.2-243 (1975) (five vs. nine
months). Finally, a number of extraconstitutional speedy trial rights, or provisions, inure to the
benefit of incarcerated defendants exclusively. Ill. Ann. Stat. ch. 38, § 103-5(a) (Smitli-Hurd
1970) (incarcerated defendants receive the benefit of a non-demand speedy trial right with Its
shorter fixed-time period); Ind. R. Crim. P. 4(B) (incarcerated defendant has the right to move for
early trial; defendant will be discharged if trial does not occur within 70 days); S.C. Code
§ 17-23-90 (1977) (only "committed" defendant given right to demand speedy trial). But see Fla. R.
Similar discord is evident in constitutional adjudication. Most courts,
following the Supreme Court's initiative, rule that delay resulting from
overcrowded dockets is to be placed in the Barker v. Wingo 17 0 balance
but "weighed less heavily than intentional delay." 1'7 Others refuse to
consider such delay an adequate ground for denying a speedy trial to a
defendant who actively pursues his constitutional right.' 7 2 Yet others
maintain that the constitutional provision requires only that trial be
held consistent with the court's caseload. 17 3
Should the defendant's incompetence to stand trial cause delay, such
delay is uniformly deemed neither to cause nor contribute to denial of a
defendant's speedy trial rights. Most extraconstitutional rights
expressly exclude from judicial consideration any period during which
the defendant is incompetent to stand trial, 17 4 including the delay due
to competency hearings and examinations. 7 5 Nonspecific statutes and
rules are similarly construed. 176 Constitutionally, the courts generally
decline to consider the time which elapses while the defendant is
169. United States v. Ford, 550 F.2d 732 (2d Cir. 1977), aff'd sub nom. United States v,
Mauro, 436 U.S. 340 (1978); United States v. Drummond, 511 F.2d 1049 (2d Cir.), cert. denied,
423 U.S. 844 (1975); Carr v. District Court, 190 Colo. 125, 543 P.2d 1253 (1975) (en banc); State
v. Wright, 234 N.W.2d
99 (Iowa 1975
); State v. Durham, 13 Wash. App. 675, 537 P.2d 816
170. 407 U.S. 514 (1972).
171. Strunk v. United States, 412 U.S. 434, 436 (1973); ef. Jones v. State, 279 Md. 1, 367
A.2d 1 (shortage of trial judges), cert. denied, 431 U.S. 915 (1977); People v. Johnson, 38 N.Y.2d
271, 342 N.E.2d 525, 379 N.Y.S.2d 735 (1975) (shortage of prosecutors); Scarbrough v. State, 76
Wis. 2d 87, 250 N.W.2d 354 (1977) (calendar congestion).
172. Commonwealth v. Beckett, 373 Mass. 329, 366 N.E.2d 1252 (1977).
173. People v. O'Neill, 185 Colo. 202, 523 P.2d 123 (1974) (en banc).
174. Speedy Trial Act of 1974, 18 U.S.C. § 3161(h)(4) (1976); Alaska R. Crim. P. 45(d)(1);
Ariz. R. Crim. P. 8.4(a); Ark. R. Crim. P. 28.3(a); Colo. R. Crim. P. 484b)[6)tI) & Colo. Rev.
Stat. § 18-1-405(6)(a) (1973); Ill.Ann. Stat. ch. 38, § 103-5(a), (b), (e) (Smith-Hurd 1970); Kan.
Stat. Ann. § 22-3402(3Xb) (Supp. 1979); La. Code Crim. Proc. Ann. art. 579(2) (West 1967);
Mich. Gen. Ct. R. 789.2(1); Mo. Ann. Stat. § 545.780(3)(3) (Vernon Supp. 1980); Neb. Rev. Stat.
§ 29-1207(4)(a) (1975); N.Y. Crim. Proc. Law § 30.30(4)(a) (McKinney Supp. 1979); N.C. Gen.
Stat. § 1SA-701(b)(4) (Supp. 1979); Ohio Rev. Code Ann. § 2945.72(B) (Page Supp. 1979); Va.
Code § 19.2-243(1) (1975); W. Va. Code § 62-3-21 (1977). Some statutes and rules specifically
exclude delay caused by defendant's physical illness or disability, even though such would seem a
variety of "incompeten[ce]." Speedy Trial Act of 1974, 18 U.S.C. § 3161(h)(4) (1976); Colo. R.
Crim. P. 48(b)(6)(I) & Colo. Rev. Stat. § 18-1-405 (6)(a) (1973); Mo. Ann. Stat. § 545.780(3(3)
(Vernon Supp. 1980); N.C. Gen. Stat. § 1SA-701(b)(4) (Supp. 1979); Ohio Rev. Code Ann.
§ 2945.72(B) (Page 1975); Va. Code § 19.2-243(1) (1975); cf. Ill. Ann. Stat. ch. 38, § 103-5(a), (b),
(e) (Smith-Hurd 1970) (delay generated by continuance due to defendant's physical incapacity is
excluded in computing statutory trial period). Both the Interstate Agreement on Detainers art.
VI(a) and the Uniform Mandatory Disposition of Detainers Act § S exclude from judicial concern
that period of delay caused by defendant's being "unable to stand trial." However, neither of
these enactments applies "to any person adjudged to be mentally ill." Interstate Agreement on
Detainers art. VI(b); Uniform Mandatory Disposition of Detainers Act § 5.
175. See note 102 supra.
176. State v. Reynolds, 250 N.W.2d 4
34 (Iowa 1977
) (physical inability); State v. Watts, 244
N.W.2d 586 (Iowa 1976) (psychiatric evaluation).
incompetent to testify as "delay" within Barker's "length of delay"
factor, 177 although extreme facts breed exceptional results.17 8
The illness or unavailability of material prosecution witnesses or
other persons necessary for trial is a circumstance, beyond the
defense's control, that recurringly results in delay. Express provisions
in many time-precise statutes or rules exclude from judicial
consideration, for purposes of computing prescribed time periods, such delay
when the absent person is a prosecution witness.' 79 These exclusions
do not apply when the absentee is a judge or prosecutor. 180 Defense
counsel's illness or unavailability ordinarily constitutes good cause,
excusing the failure to try the defendant within the prescribed
period,' 81 but this delay may be considered in derogation of the
defendant's extraconstitutional right if counsel is publicly provided.' 8 2
Indeed, even if the absence of a material prosecution witness causes the
delay, prosecution dilatoriness or neglect in attempting to secure the
witness's attendance, 83 as well as defense perspicacity in offering to
stipulate to the missing witness's testimony, 8 4 may result in a speedy
182. Compare People v. Beyah, 67 Ill. 2d 423, 367 N.E.2d 13
) (appointed defense
counsel's unavailability not attributable to defendant) with People v. Superior Court, 48 Cal. App.
3d 1003, 122 Cal. Rptr. 267 (1975) (appointed defense counsel's unavailability constitutes "good
cause" for delay beyond statutory period where no other public defender is available to represent
183. People v. Shannon, 34 11. App. 3d 185, 340 N.l3.2d 129 (1975) (prosecution's failure to
attempt to locate two police eyewitnesses until four days before trial, by which time both were on
extended furloughs, was insufficient to justify continuance beyond statutory period); State v.
Driever, 347 So. 2d 1132 (La. 1977) (state's failure to attempt, in a timely manner, to locate
material witness renders that witness's absence an invalid excuse for delay beyond statutory
period); People v. Bermudez, 84 Misc. 2d 1071, 377 N.Y.S.2d 8
99 (Sup. Ct. 1975
inability to locate material witness over thirteen months through four continuances, coupled with
prosecution's continued ignorance of witness's whereabouts, warrants dismissal for speedy trial
184. People v. Grant, 42 Ill. App. 3d 790, 356 N.E.2d 933 (1976) (unavailability of
trial right violation. Supreme Court dictum, moreover, constitutionally
excuses "appropriate delay" due to material witness unavailability. 8 s
The cases follow this dictum,1 86 devoting conspicuous attention to
evaluation of any delay's "appropriate[ness]." 187 The illness or
unavailability of the assigned trial judge is, like prosecutor absence,
weighed against the prosecution in striking the Barker balance.1 8 8
Viewed together with other reasons for the delay, however, it may not
violate a constitutional right. 189
Finally, a prosecutor may elect to dismiss the original charges
against the defendant and subsequently reindict or refile charges based
upon the same conduct. In this context, the issue arises whether the
defendant's speedy trial rights attach as of the date of the first or
second set of charges. Under statutes and rules, the authorities
diverge. Some jurisdictions require that trial commence within the
prescribed time period, as customarily computed, following the
original accusation of the defendant, but proceed to exclude the time
elapsing between dismissal of the original charges and subsequent
reindictment or refiling. 190 Other jurisdictions commence computation
of the prescribed time period anew upon reindictment or the second
filing of charges.1 9 1 Still others provide for a combination of the
foregoing1 92 or simply prohibit reaccusation of the defendant for the
same conduct. 193 The constitutional authorities are uniform: a
defendant's federal 194 and state 95 constitutional speedy trial rights attach as
soon as he is accused. Nevertheless, the defendant's voluntary and
intelligent agreement to dismissal of charges, with awareness that he
will stand reaccused as a result of the same conduct, constitutes a
waiver of the consequent delay.1 96
prosecution witness does not justify continuance beyond statutory period where defendant offers
to stipulate to missing witness' testimony), rev'd on other grounds, 68 IIl. 2d 1. 368 N.E.2d 909
185. Barker v. Wingo, 407 U.S. 514, 5
186. See, e.g., United States v. Fasanaro, 471 F.2d 717 (2d Cir. 1973); Green v.State, 75
Wis. 2d 631, 250 N.W.2d 305, cert. denied, 434 U.S. 841 (1977).
187. See People v. Bermudez, 84 Misc. 2d 1071, 377 N.Y.S.2d 8
99 (Sup. Ct. 1975
188. People v. Broyer, 394 Mich. 107, 228 N.W.2d 780 (1978); Hadley v. State, 66 Wis. 2d
350, 225 N.W.2d 461 (1975).
189. United States v. Latimer, 548 F.2d 311, 313-14 (10th Cir. 1977).
190. 18 U.S.C. § 3161(h)(6) (1976); N.C. Gen. Stat. § 15A-701(b)(5) (Supp. 1979); Wash. P_
Crim. P. 3.3(e)(4).
191. See Crockett v. Superior Court, 14 Cal. 3d 433, 535 P.2d 321, 121 Cal. Rptr. 457 (197sj.
192. Ark. R. Crim. P. 28.2(b), 28.3(f) (if original charges dismissed on defendant's motion,
speedy trial period commences anew on the date defendant is re-charged or arrested; if original
charges dismissed on state's motion, only the period between dismissal of first charges and refiling
is excluded in computing the period of delay).
193. Nev. Rev. Stat. § 178.562(1) (1973).
194. United States v. Marion, 404 U.S. 307, 313 (1971).
195. See note 1 supra.
196. United States v. Green, 526 F.2d 212 (8th Cir. 1975).
THE ILLUSIVE RIGHT TO A SPEEDY TRIAL
Philosophers and historians of science are fond of remarking on the
common misapprehension that, because one has a name for something,
one necessarily understands what it is. Plainly many who discuss the
"right to a speedy trial" as if discussing a unitary right fail to
appreciate that subsumed under that descriptive label are at least four
discrete categories of rights, 197 each of which is of different dimension,
susceptible of distinct methods and nuances of interpretation, and not
necessarily related to each of the others. Such discrimination is a
prerequisite to understanding the full parameters and implications of the
speedy trial guarantee. The absence of such understanding has
repercussions on the degree to which speedy trial rights, in application,
secure speedy trials.
Presently, the speedy trial guarantee is not so much "amorphous"' 98
as unsubstantial. In its various forms, it prods the parties toward trial
at some indefinite point in the presumably foreseeable future following
accusation of defendant. It achieves this, however, only at the expense
of rendering litigable virtually all delay, consequently promoting an
enormous volume of litigation.
A review of the various rights-as literally enacted and
promulgated, and as construed-suggests some approaches, judicial and
legislative, that may be more conducive to speedy criminal trials. As
a preliminary matter, conceptual precision concerning the nature and
scope of the right at issue is paramount. The right secured by the sixth
amendment provides ultimate speedy trial protection; irrespective of
extraconstitutional, or even state constitutional, protections, the
federal right confers on courts the power, and duty, to appraise each case
on its facts and to enforce judicial sensibilities as to "speediness" and
acceptable delay. Speedy trial statutes and rules, afford conceptually
distinct mechanisms for achieving ends more temporally concrete.1 99
Because speedy trial statutes and rules possess a fully legitimate
197. Federal constitutional, state constitutional, federal extraconstitutional (statutory and
rule-based) and state extraconstitutional (statutory and/or rule-based).
198. Barker v. Wingo, 407 U.S. 514, 522 (1972).
199. This discussion does not develop the potential role state constitutional guarantees might
play, in advancing speedy trial goals, for two reasons. First, most state courts have simply
declined to accept the invitation to interpret their state constitutions as conferring substantively
greater-indeed, even different-rights than do parallel federal constitutional provisions. Second,
even if such were done, time-precise extraconstitutional rights would necessarily still provide
speedy trial requirements generally stricter than those constitutionally mandated; otherwise, the
extraconstitutional rights would be at best superfluous, at worst unconstitutional as applied. In
either event such extraconstitutional rights would, presumably, be subject to prompt legislative
revision or judicial reinterpretation.
existence independent of constitutional provisions, they need not be
deemed "implementations" or "constructions" of the constitutional
rights and, as a result, need not be governed by all of the intermediate
premises and conclusions-particularly as to excusable causes of
delay-governing constitutional adjudication.
Each claim of speedy trial deprivation may give rise to both
constitutional and extraconstitutional analyses. The extraconstitutional
analysis may properly be based on objective criteria that are distinct
from the unwieldy subjective criteria imposed on constitutional
analysis, provided constitutional rights are not impinged. Indeed, such
extraconstitutional criteria, stricter than constitutional requirements,
would tend to obviate the necessity of reaching or resolving
constitutional claims.2 0 0 Currently, however, the boundary between these
analyses is unnecessarily blurred. 20 '
If a wholly non-constitutional approach to speedy trial effectuation
is consciously posited, statutes and rules may be drafted in a manner
which avoids the current practices of either, one, very briefly, and
superfluously, recapitulating constitutional protection or, two, very
extensively reciting excusable and excludable causes of delay, which
generally parallel those of constitutional stature. Moreover, the
sanction to be imposed for failure to comply with extraconstitutional
provisions may properly be less than and different from absolute
discharge of the defendant, the mandatory constitutional sanction.202
In view of the reluctance of many judges to apply so drastic a
remedy-and thus to find constitutional deprivation 2 03-the
availability of lesser and different remedies may prove more successful in
facilitating compliance with extraconstitutional provisions.
Straightforward enunciation of a strict time limit-perhaps specifying a date
for entry of judgment in addition to a trial date 20 4 and clearly defining
200. If stricter extraconstitutional requirements are met, no constitutional issue arises; if
breached, depending on the sanction imposed, the constitutional issue may similarly be avoided.
201. Thus many states have adopted the Barker test not merely to resolve state constitutional
claims, see note 18 supra, but also to resolve defendants' extraconstitutional claims. See, e.g.,
Chester v. State, 298 So. 2d 529 (Dist. Ct. App. 1974), cert. denied, 310 So. 2d 304 (Fla.
1975); State v. Donnell, 239 N.W.2d 575 (Iowa 1976); State v. Alvarez, 189 Neb. 281, 202
N.W.2d 604 (1972); State v. Erickson, 241 N.W.2d 854 (N.D. 1976). Further, as the data in Part
II demonstrate, courts treat the various causes of delay as equally excusable, or inexcusable, for
constitutional and extraconstitutional purposes.
202. Strunk v. United States, 412 U.S. 434, 440 (1973).
203. See notes 47-49 supra and accompanying text.
204. It has been held that protracted interruptions of a criminal trial due to interlocutory
appeals precluding rendition of a speedy judgment may violate a defendant's state and federal
constitutional and state statutory speedy trial rights. People v. Hammond, 84 Mich. App. 60, 269
N.W.2d 488 (1978). Specification of an extraconstitutional time limit for entry of judgment,
whether in addition to a specified time limit for trial, could serve to prevent the constitutional
the contours of "trial" 2 5-with far fewer exceptions, less drastic but
more encompassing sanctions, and generally nonwaivable application,
may prove more efficacious in achieving speedy criminal trials.
To move criminal cases through the justice system expeditiously,
speedy trial statutes and rules can properly refuse to excuse delays
attributable to a number of constitutionally excusable causes. For
example, excluding from time period computation the delay introduced
by plea negotiations, whether or not fruitful, encourages neither
defendant nor prosecutor to consummate the negotiations promptly or
within the prescribed period. Declining to exclude such delay would
necessitate that such negotiations conclude within the prescribed
period, possibly accelerating, but surely not precluding nor substantively
affecting plea negotiations. 20 6 Such a provision would clearly impose
time constraints on counsel, particularly defense counsel whose pretrial
preparation ordinarily commences after the period has commenced to
run. Even assuming that the negotiation process, as such, does
consume considerable time that would otherwise be spent on pretrial
preparation, this factor can be taken into account when establishing the
extraconstitutional time period or periods.
In the same fashion, current indulgence, and exclusion, of much
delay emanating from motion practice permits motions to be made in
order to prolong pretrial delay. 20 7 Were such delay not excluded but
coupled with imposition of subordinate time limits within which
motions, and responsive papers, must be filed-perhaps tying them to
other pretrial hearings-such delay might be substantially
circumissue from arising and would clarify that "trial"--for nonconstitutional "speedy trial"
purposes-requires merely commencement of trial.
205. Enactments should define "trial" in order to remove the ambiguity whether the term Is
intended to denote mere commencement or actual conclusion of trial, or entry of judgment. See
note 204 supra. Moreover, drafting should resolve questions whether "trial" is intended to include
probation or parole revocation proceedings, see, e.g., Young v. State, 305 So. 2d 307 (Dist. Ct.
App. 1974), cert. denied, 317 So. 2d 762 (Fla. 1975); Toman v. State, 213 Kan. 857, 518 P.2d 501
(1974), or sentencing hearings. Compare In re Shute, 56 Cal. App. 3d 543, 130 Cal. Rptr. 270
(1976) and Cal. Penal Code § 1381 (West 1970) with Layne v. State, - Ind. App. -, 361
N.E.2d 170 (1977) (construing Ind. R. Crim. P. 4).
206. Distinguish, however, the situation in which such negotiations--within the prescribed
period-culminate in a deferred prosecution of defendant pursuant to statute. See notes 56,
135-36 supra and accompanying text. Because deferred prosecution statutes enjoy a separate
statutory purpose with distinct aims they necessarily impinge on the goals at which speedy trial
statutes and rules aim. As a consequence, the delay thus contingently introduced would survive
this suggested modification of speedy trial statutes/rules.
207. Under the Speedy Trial Act of 1974, for instance, judges will frequently take motions
"under advisement" for the purpose of excluding time from the prescribed period for trial, See
Project, The Speedy Trial Act: An Empirical Study, 47 Fordham L. Rev. 713, 737 (1979).
vented. While this may, on occasion, force court and counsel to
dispose expeditiously of complex issues, in view of the relatively
routine nature of most pretrial practice, the ultimate question is
whether such time constraints on balance are desirable to promote the
ends toward which the speedy trial guarantee is directed. Once more,
since certain types of offenses tend to import more complicated and
multifaceted issues, this factor can be taken into consideration when
the applicable time period is established.
Permitting prescribed time periods for trial to be ignored upon
agreement of the parties allows the societal interest in speedily
disposing of criminal actions to be vitiated without there inuring, necessarily,
any corresponding benefit to the accused. With certain specific
exceptions, as for deferral of prosecution pursuant to statute, delay
interposed by agreement could be deemed extraconstitutionally inexcusable.
Moreover, perhaps the most litigated statutory and rule provisions
are the all-encompassing exclusions of delay caused "by or on behalf of
defendant" or for "good cause," 208 standards under which many of the
specific fact patterns discussed above 20 9 were litigated. The inherent
virtue of such qualitatively limitless exceptions is the freedom they
afford the courts to do justice without restriction; their inherent vice,
that the courts do so. The exceptions envelope the rule. Elimination of
such exclusions would both impress, with force, the compelling
importance of proceeding to trial within the prescribed period and would
remove a very common source of speedy trial litigation.
In lieu of such exclusions, extraconstitutional provisions can be
drafted with a view toward tailoring the prescribed period, in rough
measure, to the offense involved. A rudimentary version of this
approach is apparent in many statutes and rules which establish longer
pretrial periods in felony, than in misdemeanor, cases,2 10 and/or
permit extended pretrial delay if complex crimes are alleged.' ! The
principle, simply stated if not simply applied, is that offenses which
have historically required extended leadtime for investigation and trial
preparation be granted it-but within fixed limits. The balance, once
more, is between the interests furthered by the speedy trial guarantee
and the constraints strict limits may impose in individual cases. The
right to a speedy trial and the right to avoid a precipitous trial are
separate but related rights: both are designed to assure an accused a
fair trial, to prevent undue delay in one instance and undue haste in
the other. 2 12 Due process protections ensure that extraconstitutional
fixed time limits will not prejudice the accused's defense.
Many of the delays currently excluded under speedy trial statutes
and rules are subject to exclusion because failure to do so would
frequently result in expiration of the applicable time limit before
defendant's trial, and the mandatory sanction, if that occurs, is
ordinarily absolute discharge of defendant. This is a result which few,
other than defendants, appear anxious to effect. The sanction of
mandatory discharge does, with a vengeance, vindicate defendant's
interest in a speedy trial if delay is attributable to the prosecution.
However, it fails entirely to protect society's interest in administering
justice promptly, regardless of defendant's possibly conflicting
desires-except to the extent that, as a club, it serves to motivate
prompt prosecution. 2 13 Permissive, if not mandatory, imposition of
lesser sanctions, which would not dictate recognition of such a volume
of excludable delays, may well suffice to achieve timely trials.
Expressly empowering or requiring the courts to order sanctions
against either or both the prosecution or defense, including respective
counsel, upon simple expiration of the applicable period absent trial
might provide an avenue for redress of all interests, circumventing
judicial reticence to dismiss with prejudice all pending charges. It is
impossible to predict with accuracy which, if any, lesser sanctions
would significantly improve speedy trial effectuation. However, such
sanctions could include dismissal without prejudice of pending
charges, a sanction already imposed in certain jurisdictions. 214 It can
be argued that such dismissal is a toothless formality since defendant
can be indicted or charged a second time. The inconvenience and
discomfiture attendant upon this sanction, however, should not be
overlooked: a prosecutor's office cannot afford to devote unlimited time
to redrafting indictments or informations, and no individual prosecutor
will relish the prospect.
A second, lesser sanction currently imposed in some jurisdictions is
automatic discharge of defendant from pretrial custody upon
expiration of the prescribed period. 215 Appropriately, the impact of this
212. People v. Lewis, 17 Ill. App. 3d 188, 308 N.E.2d 59 (1974), aff'd, 60 Ill. 2d 152, 330
N.E.2d 857 (1975); State v. Dowell, 16 Wash. App. 583, 557 P.2d 857 (1976).
213. Even this threat is mitigated by the expressed reluctance of a number of courts to impose
this dismissal sanction. See notes 47-49 supra and accompanying text.
214. See Appendix infra.
sanction will intensify directly with the seriousness of the offense
charged and the perceived social threat posed by the accused.
Potentially adverse public reaction to release of individuals, or large numbers
of defendants, as well as institutional pressures, may be expected to
encourage adherence to fixed time limits for trial.
Few sanctions appear as foreboding to the defense, in many cases,
as the prospect of trial itself; this alone augurs for sanctions less than
absolute discharge. The availability of contempt sanctions, especially if
they may be directed at counsel for either party, may prove a strong
stimulus against dilatory behavior. These might include, or be coupled
with, assessment of fixed counsel fees if a successful motion for
sanctions should be brought by the adverse party due to unexcused
delay. In short, reliance could properly be placed on judicial discretion
to fashion appropriate remedies, perhaps dictating the alternative
imposition of a certain sanction such as dismissal without prejudice,
upon lapse of the prescribed period. The threat of lesser penalties
which are more certain to be imposed may well be a sharper spur to
timely trial than the threat of an outcome-determinative penalty which
courts candidly confess they are reluctant to impose.
Precluding judicial reliance upon traditional waiver analysis, by
rendering extraconstitutional rights nonwaivable through
inadvertence, may also further the goals underlying the speedy trial guarantee.
Introduction of common law waiver analysis, with its implicit
invitation to result manipulation through fact characterization, not only
stimulates litigation but also substantively detracts from the
effectiveness of statutes and rules. If the extraconstitutionally prescribed trial
date could not be waived through inadvertence, the defendant would
be better protected against both those anxieties and that prejudice
engendered by extended delay which underlie traditional formulations
of the speedy trial guarantee. At the same time, the social interest in
the prompt administration of justice would be advanced. Courts have
at their disposal other methods to obviate unconscionable results in
extraordinary circumstances. 21 6
Excising traditional waiver theory from extraconstitutional analysis,
linked with the imposition of lesser sanctions than absolute discharge
and the establishment of firm time limits within which trial must be
held, offers the prospect of achieving speedier trials through wholly
216. See United States v. Beberfeld, 408 F. Supp. 1119, 1122, 1124-25 (S.D.N.Y, 1976)
(holding the Second Circuit rule right nonwaivable but avoiding dismissal of charges against
defendant, despite expiration of the prescribed period, by ruling that defendant's ineffective
waiver of trial within the period-upon which the government relied-equitably estopped
defendant from asserting the speedy trial claim).
non-constitutional means. Notably, constitutional ends can be attained
without addressing or undertaking cumbersome constitutional
analysis. Perhaps only by deconstitutionalizing the guarantee in this
manner, thereby extricating it from the fact-laden morass of contemporary
constitutional theory, can the constitutional right be effectuated.
* Jurisdictions which have enacted the Interstate Agreement on Detainers.
t Jurisdictions which have enacted the Uniform Mandatory Disposition of Detainers Act,
** These rules track Fed. R. Crim. P. 48(b), which provides that the court may dismiss for
protracted delay but does not specify whether this delay is to be with or without prejudice. Such
rules presumably incorporate the federal intention to permit dismissal without prejudice, see cases
cited note 227 infra, when the basis for the dismissal is not constitutional deprivation but
common law failure to prosecute. See, e.g., State v. Paquette, 117 R.I. 505, 368 A.2d 566 (1977).
217. "Non-demand" statutes or rules are those that provide rights which are self-effectuating,
triggered automatically by accusation of the defendant (including arrest, indictment, filing of an
information or presentment, arraignment, and the like), irrespective of any formal demand by the
defendant for a speedy trial.
218. Demand statutes or rules are those which provide rights triggered only by defendant's
demand of a speedy trial.
219. Citation of the same or different sections of the same statute in more than one column
indicates that either different categories of crime or different classes of defendants are subject to
220. The Colorado rule and statute are verbatim replicas of one another.
221. Applicable to defendants on bail or recognizance.
222. Applicable to defendants in custody.
223. "It provides a declaration of legislative policy, but it dehors sanctions." State v. Hunter,
16 Md. App. 306, 312, 295 A.2d 779, 782 (1972) (footnotes omitted).
224. Section 30.30 requires not that trial occur, but that the prosecution be ready for trial
within the prescribed time periods. For the purposes (if this article, this statutory effort to
promote prompt criminal trials is considered an extraconstitutional speedy trial right.
225. Release from custody is mandated upon expiration of a certain period (graduated by the
degree of the offense), followed by dismissal only upon expiration of more extended periods of
prosecution nonreadiness for trial.
226. State v. Runge, 89 S.D. 376, 233 N.W.2d 321 (1975).
227. United States v. Novelli, 544 F.2d 800, 803 (5th Cir. 1977); United States v. Crow Dog,
532 F.2d 1182, 1194 (8th Cir. 1976), cert. denied, 430 U.S. 9
); United States v. Simmons,
536 F.2d 827, 833-34 (9th Cir.), cert. denied, 429 U.S. 854 (1976); United States v. Starr, 434 F.
Supp. 214, 216-17 (D.D.C. 1977).
228. Rule 50(b) requires the promulgation of speedy trial plans to facilitate prompt processing
of criminal actions in all federal courts. The sanctions indicated on the chart, therefore, refer to
violations of particular plans and not violation of rule 50(b) as such.
229. United States v. Wyers, 546 F.2d 599, 602-03 (5th Cir. 1977); United States v. Furley,
514 F.2d 1098, 1104-05 (2d Cir. 1975).
28. Carr v. District Court , 190 Colo. 125 , 127 , 543 P.2d 1253 , 1254 ( 1975 ) (en banc).
29. Sykes v. Superior Court, 9 Cal. 3d 83 , 507 P.2d 290 , 106 Cal. Rptr. 786 ( 1973 ); Smith v . State , 266 Ind. 633 , 368 N.E.2d 1154 ( 1977 ).
30. Potter v. District Court , 186 Colo. 1 , 525 P.2d 429 ( 1974 ) (en banc); State v . Lindsay , 96 Idaho 474, 531 P.2d 236 ( 1975 ); People v . Johnson , 36 IllA.pp. 3d 122 , 343 N.E.2d 177 ( 1976 ); Cooley v . State , 267 Ind. App. 167 , 360 N.E.2d 29 ( 1977 ); Commonwealth v . Fields , 371 Mass. 274 , 356 N.E.2d 1211 ( 1976 ); State v . Lacy , - W. Va . -, 232 S.E.2d 519 ( 1977 ),
31. Snyder v. State , 524 P. 2d 661 ( Alaska 1974 ); State ex rel . Berger v. Superior Court , 111 Ariz. 335 , 529 P.2d 686 ( 1974 ) (en banc); Gardner v . State , 252 Ark. 828 , 481 S.W.2d 342 ( 1972 ); State v . Hert , 192 Neb. 751 , 224 N.W.2d 188 ( 1974 ); Rodriguez v . State , 91 Nev. 782 , 542 P.2d 1063 ( 1975 ); State v . Chamberlain , 131 Vt. 549 , 310 A.2d 30 ( 1973 ); Beckett v . State, 73 Wis. 2d 345 , 243 N.W.2d 472 ( 1976 ).
32. State v. Becker , 24 Md. App. 549 , 332 A.2d 272 ( 1975 ).
33. See Appendix infra .
34. People v. Mayes , 178 Colo. 429 , 498 P.2d 1123 ( 1972 ); Suggs v . State , 358 So. 2d 55 (Fla . Dist. Ct. App. 1978 ); Cooley v . State , 267 Ind. App. 167 , 360 N.E.2d 29 ( 1977 ); State v . Henry , 219 Kan. 310 , 548 P.2d 808 ( 1976 ) (implied holding); State v . Howard, 325 So. 2d 812 (La . 1976 ).
38. See , e.g., State v . Donnell , 239 N.W.2d 575 ( Iowa 1976 ); State v . Alvarez , 189 Neb. 281 , 202 N.W.2d 604 ( 1972 ). But see Boyle v . Critelli , 230 N.W.2d 495 ( Iowa 1975 ) (applying Barker test separately and exclusively to constitutional rights) . Such interpretation is not constitutionally mandated so long as such nonconstitutional statutes and rules are not construed in a manner that constricts the federal right. Such decisions, like others that apply constitutional authorities to resolve extraconstitutional claims, see note 37 supra, are symptomatic of the muddled analysis prevailing in this area .
39. Commonwealth v. Car , 3 M-ass . App. Ct . 654 , 338 N.E.2d 844 ( 1975 ).
40. State v. Jackson , 336 So. 2d 402 (Dist . Ct. App. 1976 ) (per curiam), cert . denied, 345 So. 2d 427 (Fla . 1977 ); Commonwealth v . Daggett , 369 Mass. 790 , 343 N.E.2d 409 ( 1976 ).
41. State v. Hamilton , 268 N.W.2d 56 , 61 (Minn. 1978 ).
42. There is still a need to inquire into constitutional factors, however, where, for example, the statute or rule right is triggered only by the defendant's formal demand of a speedy trial, see Appendix infra, in various procedural contexts, see pt. II(A) infra, when trial is scheduled beyond the prescribed period but defendant fails to apprise the court of that fact, see note 147 itifra and accompanying text, and where the sanction for the extraconstitutional violation is less severe than dismissal with prejudice of all charges, see Appendix infra .
43. United States v . Ford , 550 F.2d 732 ( 2d Cir . 1977 ), aff'd sub non . United States v. Mauro , 436 U.S. 340 ( 1978 ); People v . Sibley , 41111 . App. 3d 616 , 354 N.E.2d 442 ( 1976 ). This is emphatically not the case, however, if the statutory or rule sanction is less than dismissal with prejudice of all charges coupled with a bar to future charges arising out of the same facts .
44. This rather arbitrary category would include the provisions in force in Alaska , Arizona, Arkansas, California, Colorado, Florida, Illinois, Indiana, Iowa, Kansas, Louisiana, Maryland, Michigan, Missouri, New York ( a readiness-for-trial, not speedy trial , provision), North Carolina, Ohio, Vermont (an administrative order) , Virginia, Washington, West Virginia, and the Interstate Agreement and Uniform Act. See Appendix infra .
45. See notes 21-32 supra and accompanying text.
46. The imprecision with which courts resolve speedy trial claims is compounded by other factors. As noted above, the Supreme Court has articulated a federal constitutional right so
52. Barker v. Wingo , 407 U.S. 514 , 530 ( 1972 ).
53. See notes 17-19 , 38 - 39 supra and accompanying text.
54. Alaska R. Crim . P. 45 ( 0 ; Ark. R. Crim . P. 30 .2; Colo. R. Crim . P. 48 ( b)(5) & Colo . Rev. Stat. § 18 -1- 405 ( 5 ) ( 1973 ) ; Mo . Ann. Stat. § 545 . 780 ( 5 ) (Vernon Supp . 1980 ) ; Neb . Rev. Stat. § 29 - 1209 ( 1975 ); N.C. Gen . Stat. § 15A - 703 ( 1978 ).
55. In re Yurko, 10 Cal. 3d 857 , 519 P.2d 561 , 112 Cal. Rptr. 513 ( 1974 ); State v . Williams, 85 Wash. 2d 29 , 530 P.2d 225 ( 1975 ) (en banc) . But see Morse v. Municipal Court, 13 Cal. 3d 149 , 529 P.2d 46 , 118 Cal. Rptr. 14 ( 1974 ) (in bank).
89. See note 78 supra.
90. See , e.g., Ohio Rev . Code Ann. § 2945 .72(A) ( Page 1975 ).
91. Balla v. State , 97 Idaho 378, 544 P.2d 1148 ( 1976 ); People v . Uplinger, 69 IIM.2d 181 , 370 N.E.2d 1054 ( 1977 ).
92. State v. McDonald , 111 Ariz. 159 , 526 P.2d 698 ( 1974 ); Balla v . State , 97 Idaho 378, 544 P.2d 1145 ( 1976 ).
93. Speedy Trial Act of 1974 , 18 U.S.C. § 3161 (h)( 1)(E),( G ) ( 1976 ); Alaska R. Crim . P. 45 ( d)(1); Ark. R. Crim . P. 28 . 3(a); Fla. R. Crim . P. 3 .191( d)(2)(iv); La . Code Crim. Proc. Ann . art. 580 ( 1967 ) ; Mich. Gen. Ct. R. 789 . 2 ( 1 ); Mo. Ann. Stat. § 545 . 780 ( 3)(1)(c), (e) (Vernon Supp . 1980 ) ; Neb . Rev. Stat. § 29 - 1207 ( 4 ) (a ) ( 1975 ); N.C. Gen . Stat. § 15A - 701 (b}l)( d) (Supp . 1979 ); N. Y. Crim . Proc. Law § 30.30 ( 4 ) (a) (McKinney Supp . 1979 ).
94. People v. Donalson , 64 Il. 2d 536 , 356 N.E.2d 776 ( 1976 ); People v . Terry , 61 M1 . 2d 593 , 338 N.E.2d 162 ( 1975 ); People v . Ferguson , 46 Ill. App. 3d 815 , 361 N.E.2d 339 ( 1977 ); Jones v . State, 279 Md. 1, 367 A.2d 1 ( 1976 ), cert. denied, 431 U.S. 915 ( 1977 ). If the prescribed period commences only upon defendant's demand, motions made and decided prior to demand
98. People v. Thomas , 25 Il1. App. 3d 88 , 322 N.E.2d 597 ( 1975 ); State v . McDonald , Ill Ariz . 159 , 526 P.2d 698 ( 1974 ); People v . Henderson, 39 Ill App. 3d 164 , 351 N.E.2d 225 ( 1976 ); Griffith v . State , 163 Ind. App. 11 , 321 N.E.2d 576 ( 1975 ); State v . Truax , 232 N.W.2d 861 ( Iowa 1975 ).
99. Rosenwasser v. Smith, 308 So. 2d 600 (Fla. Dist Ct. App . 1975 ); State v . King , 225 N.W.2d 337 ( Iowa 1975 ).
100. People v. . Shields , 58 I1 . 2d 202 , 317 N.E.2d 329 ( 1974 ).
101. Defendant cannot complain of delay resulting from his change of venue motion . State v. Moles , 166 Ind. App. 632 , 337 N.E.2d 543 ( 1975 ); State v . Lacy, 46 Ohio App. 2d 215 , 348 N.E.2d 381 ( 1975 ); State v . Runge , 233 N.W. 2d 321 (S.D . 1975 ); Mo. Ann. Stat. § 545 - 780 ( 3)(1)(d) (Vernon Supp . 1980 ); Ohio Rev . Code Ann. § 2945 .72(F) ( Page 1975 ) ; cf . Speedy Trial Act of 1974 , 18 U.S.C. § 3161 (h)(1 )(F) ( 1976 ) (delay resulting from transfer between districts per Federal Rules of Criminal Procedure) . But see State v . DeLong , 16 Wash. App. 452 , 557 P.2d 14 ( 1976 ) (under state rule, time consumed in consideration of defense change-of-venue motion not excluded ).
102. People v. Donalson , 64 I1 . 2d 536 , 356 N.E.2d 776 ( 1976 ) (defense motions, including motion for physical examination of defendant, resulting in delay beyond the 26 days remaining in the statutory pretrial period, constitute defense acquiescence in post-period trial); Coin-
147. Hodge v. State , 264 Ind. 377 , 344 N.E.2d 293 ( 1976 ); State v . Potts , 240 N.W.2d 654 ( Iowa 1976 ); State v . Westbrook, 47 Ohio App. 2d 211 , 353 N.E.2d 637 ( 1975 ). But see Harrington v . District Court , 192 Colo. 351 , 559 P.2d 225 ( 1977 ); State v . Ansley , 349 So. 2d 837 (Dist . Ct. App. 1977 ), cert. denied, 359 So. 2d 1220 (Fla . 1978 ); State v . Alvarez , 189 Neb. 281 , 202 N.W.2d 604 ( 1972 ).
148. State v. Wright , 234 N.W.2d 99 ( Iowa 1975 ).
149. See text accompanying notes 54-64 supra.
150. State v. Dolack , 216 Kan. 622 , 533 P.2d 1282 ( 1975 ); State v . Wright , 290 N.C. 45 , 224 S.E.2d 624 ( 1976 ), cert. denied, 429 U.S. 1049 ( 1977 ).
151. People v. Murphy , 47 Ill. App. 3d 278 , 361 N.E.2d 842 ( 1977 ), aff'd. 72 Ill. 2d 421 , 381 N.E.2d 677 ( 1978 ).
152. Cal . Penal Code § 1382 ( 2 ) -(3) (West Supp . 1979 ); Ohio Rev . Code Ann. § 2945 . 72(D) ( Page 1975 ).
177. Ricon v. Garrison , 517 F.2d 628 ( 4th Cir .), cert. denied, 423 U.S, 895 ( 1975 ) ; United States v . Canty , 469 F. 2d 114 (D.C. Cir . 1972 ); State v . Owens , 112 Ariz, 223 , 540 P.2d 695 ( 1975 ); State ex rel . Haskins v. County Courts, 62 Wis. 2d 250 , 214 N.W.2d 575 ( 1974 ).
178. See , e.g., United States v . Geelan , 520 F.2d 585 ( 9th Cir . 1975 ); Cox v . State , 550 S.W.2d 954 (Tenn . Crim. App. 1976 ).
179. This situation is contemplated by the statutory and rule provisions already discussed note 153 supra, and is expressly the subject of Mo . Ann. Stat. § 545 . 780 ( 3)(2) (Vernon Supp . 1980 ); N.C. Gen . Stat. § 15A - 701 ( b)(3) (Supp . 1979 ); R.I. Gen , Laws § 12 - 13 -7 ( Supp . 1979 ); Va. Code § 19 . 2 - 243 ( 2 ) ( 1975 ); W. Va. Code § 62 -3- 21 ( 1977 ).
180. The decisions are not uniform in assessing the weight to be accorded the absence or unavailability of a judge or prosecutor . Compare State v. Jennings , 195 N.W.2d 351 ( Iowa 1972 ) (judge)and People v . Adams , 59 Ill. App. 3d 590 , 375 N E. 2d 893 ( 1978 ) (prosecutor) with State v . Newman , 257 N.W.2d 29 ( Iowa 1977 ) (prosecutor) and People v . Hamilton , 61 A.D.2d 1112 , 403 N.Y.S.2d 372 ( 3d Dep't 1978 ) (judge ), rev'd on other groundsper curiam , 46 N.Y.2d 932 , 388 N.E.2d 345 , 415 N.Y.S.2d 208 ( 1979 ).
181. People v. Superior Court, 48 Cal. App. 3d 1003 , 122 Cal. Rptr. 267 ( 1975 ); People v . Hairston , 46 Ill. 2d 348 , 263 N.E.2d 840 ( 1970 ), cert. denied, 402 U.S. 972 ( 1971 ). State v. Pomeroy , 18 Wash. App. 837 , 573 P.2d 805 ( 1977 ).
208. For examples of statutes and rules providing exclusions for good cause, see Ariz. R. Crim . P. 8.4(a); Ind. R. Crim . P. 4(A)4C); Ohio Rev . Code Ann. § 2945 . 75(D) ( Page 1975 ). For examples of those with "good cause" exceptions, see Alaska R . Crim. P. 45 ( d )( 7 ); Ark, R _ Crim, P. 28 . 3(h); Mich. Gen. Ct. R. 789 . 2 ( 5 ); Utah Code Ann. § 77 - 51 - 1 ( 2 ) (Supp. 1979 ).
209. See pt. II(B) supra .
210. See , e.g., Cal. Penal Code § 1382 (West 1970 & Supp . 1979 ) ; Fla. R. Crim . P. 3 .191( a)(1); La . Code Crim. Proc. art . 578 ( West Supp . 1979 ).
211. See provisions cited note 153 supra. 0 c u