Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Before the 1972 Barker v. Wingo1 decision, where the Supreme Court established a four-factor balancing test for determining when the speedy trial right is abridged,2 the Court decided speedy trial cases under more general notions of the bounds of appropriate delay in prosecution. In Pollard v. United States in 1957, the Court held that a two-year delay between conviction and sentencing—resulting from the trial court’s failure to impose a sentence in the defendant’s presence at the original sentencing hearing—did not violate the Sixth Amendment because the delay was not “purposeful or oppressive.” 3 The Court used a similar touchstone in the 1966 decision United States v. Ewell, which concerned a nineteen-month delay between initial arrest and a hearing on a second indictment.4 The delay was caused largely by the defendants’ successful motion to vacate their convictions by guilty plea.5 The Court rejected the defendants’ speedy trial claim due to a lack of “oppressive or culpable government conduct.” 6 The Court also reasoned that to hold a delay caused by a successful defense appeal unconstitutional would undermine the general principle that a defendant may be “retried in the normal course” of events following the reversal of a conviction.7

Aspects of the reasoning in Pollard and Ewell would carry through the landmark Barker case and into the Supreme Court’s modern speedy trial jurisprudence. In both pre-Barker cases, the Court emphasized that speedy trial claims required ad hoc analysis of the particular circumstances surrounding a delay in prosecution,8 a point that Barker would go on to reiterate more emphatically.9 Perhaps more importantly, the Ewell Court attributed three primary purposes to the Speedy Trial Clause: “to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.” 10 In subsequent cases, including Barker, the Court would rely on this passage as the definitive formulation of the Speedy Trial Clause’s purposes.11

In another line of pre-Barker cases that remains important, the Court rejected the contention that prosecutors could, after charging a defendant, leave the charges dormant for extended periods of time free of the strictures of the Speedy Trial Clause. In Klopfer v. North Carolina in 1967, a state prosecutor invoked a procedure called “nolle prosequi with leave” to defer proceedings on an indictment for criminal trespass until an uncertain future date when the prosecutor might restore the case for trial.12 The Court held that such “indefinite[ ] prolonging” of criminal prosecution violated the defendant’s speedy trial right.13 Similarly, in two cases from 1969 and 1970, the Court held that the government may not defer proceedings against a charged defendant until his release from incarceration in another jurisdiction;14 rather, the charging authority must make a “diligent and good-faith effort to secure the presence of the accused from the custodial jurisdiction and afford him a trial” upon his request, notwithstanding the inter-jurisdictional cooperation that such a trial might require.15 In short, the government may not evade the limitations of the Speedy Trial Clause by deferring already-filed charges until the occurrence of some later event.

Footnotes

1

407 U.S. 514 (1972).

2

Id. at 530.

3

Pollard v. United States, 352 U.S. 354, 361–62 (1957).

4

383 U.S. 116, 118–19 (1966).

5

Id.

6

Id. at 123.

7

Id. at 121.

8

See Pollard, 352 U.S. at 361 ( “Whether delay in completing a prosecution . . . amounts to an unconstitutional deprivation of rights depends upon the circumstances.” ); Ewell, 383 U.S. at 120 ( “[T]his Court has consistently been of the view that ‘The right of a speedy trial is necessarily relative. It is consistent with delays and depends on circumstances.’” ) (quoting Beavers v. Haubert, 198 U.S. 77, 87 (1905)).

9

Barker, 407 U.S. at 530 ( “A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right.” ).

10

Ewell, 383 U.S. at 120.

11

See, e.g., Betterman v. Montana, 578 U.S. 437, 442 (2016) ( “The Speedy Trial Clause implements [the presumption of innocence] by” minimizing the likelihood of lengthy incarceration before trial, lessening the “anxiety and concern accompanying public accusation,” and limiting the effect of long delay on the defense.); Barker, 407 U.S. at 532.

12

386 U.S. 213, 214, 217 (1967).

13

Id. at 222.

14

Dickey v. Florida, 398 U.S. 30, 37 (1970); Smith v. Hooey, 393 U.S. 374, 383 (1969).

15

Dickey, 398 U.S. at 37.