For example, in California, the government must get a defendant charged with a felony to trial within 60 days of arraignment on an indictment or information unless there is “good cause” for delay. (Cal. Penal Code § 1382.) A defendant can waive (give up) their right to a speedy trial by agreeing to the proceedings moving slower than the law provides.
The Sixth Amendment states that: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...."
Among the justifications for the right to a speedy trial are:
The term “speedy” is relative in the legal context. What constitutes a speedy trial in one instance might not in another. In general, though, a speedy trial is one that occurs as soon as reasonably possible, subject to qualifications.
In one murder case, for example, a federal appeals court upheld the finding that a 16-month delay between arrest and trial didn’t violate the Sixth Amendment speedy-trial right. (Amos v. Thornton, 646 F.3d 199 (5th Cir. 2011).) The court, in that case, observed that the delay between accusation and trial becomes “presumptively prejudicial” near the one-year mark. It found no compelling reasons for the delay and noted that the defendant promptly asserted his speedy-trial right while the proceedings were pending. But the defendant couldn’t show that the delay compromised his defense, and that inability doomed his claim.
Typically, the accused's arrest or the filing of criminal charges triggers the right to a speedy trial and starts the clock. However, it's never that simple. State and federal laws allow the government to exclude certain time periods from their speedy-trial calculations. Time that can't be "charged against" the government might include time needed for the court to consider a plea deal or pretrial motion, time needed to transfer a case, or a delay for "good cause." Also, any delays caused by the defendant (say by leaving the jurisdiction) are not used to calculate speedy trial deadlines.
Courts undertake a speedy-trial analysis that differs depending on the law that's at hand. Under the U.S. Constitution, there’s no set time for a speedy trial. Therefore, when a defendant claims a violation, the court applies a “balancing test,” assessing:
Apart from the constitutional right, federal courts must adhere to the provisions of the federal Speedy Trial Act. Similarly, where state law is involved, there are often benchmarks indicating when a trial should be started. For some states, the deadlines are strict, while in others, if the time limit has passed, a court must weigh factors like those in the federal constitutional balancing test.
If a convicted defendant can establish a violation of the constitutional right to a speedy trial, the court must set aside the conviction, vacate the sentence, and dismiss the charging document. (United States v. Villarreal, 613 F.3d 1344 (11th Cir. 2010).) If the case hasn’t yet gone to trial, the court must generally dismiss the charges.
If you think you might have a speedy-trial argument, whether you’ve already been convicted or are awaiting trial, consult a lawyer. A knowledgeable attorney can advise you of the law in your jurisdiction and how it applies to your case. A lawyer can explain whether, if you’re successful in your claim, the government can refile charges. And an attorney can explain the pros and cons of “waiving time”—that is, giving up your right to a speedy trial.
]]>When criminal and civil charges are simultaneously pending, litigation can get thorny. For example, the civil plaintiff might want to take the deposition of the defendant. But because the criminal case is unresolved, the defendant’s lawyer will likely advise him to remain silent in order to avoid self-incrimination.
When civil and criminal cases share the same underlying facts, judges typically have discretion in deciding whether to grant a stay or continuance in the civil matter. (The criminal case almost always takes priority.) (State ex rel. Stovall v. Meneley, 271 Kan. 355 (2001).) Judges frequently opt for the stay or continuance because waiting for resolution of the criminal case can simplify the proceedings. Not only can issues like refusal to testify be avoided, but the criminal litigation can resolve some of the issues involved in the civil suit.
Example: A former employee faces criminal charges and a civil lawsuit by her former employer for stealing company funds. The employee defendant moves for a stay of the civil case until resolution of the criminal case. The civil court judge decides to stay the civil case until the employee is either convicted or acquitted—not only will the stay alleviate the self-incrimination problem, but conviction in the criminal case will prevent her from denying the essential factual allegations in the civil case. (See Peterson v. Therma Builders, Inc., 958 So. 2d 977 (Fla. Dist. Ct. App. 2007).)
If you are the subject of both criminal and civil proceedings, make sure to consult with one lawyer or more—perhaps one for the criminal case and one for the civil matter. A knowledgeable attorney will be able to advise you of the applicable law and propose a strategy for dealing with both cases.
]]>Lawyers typically seek continuances because they want more time to prepare for trial. Common reasons for continuances include the following.
Both the prosecution and the defense are entitled to a reasonable time to prepare for trial. Exactly what constitutes a reasonable time is open to interpretation, and depends on the circumstances and complexity of a particular case. In general, each side must be given sufficient time to:
Neither side may excessively delay the trial for its own advantage, especially the prosecution: An unreasonable delay can violate the defendant’s Sixth Amendment right to a speedy trial.
Attorneys often request continuances because their work on other cases has prevented them from devoting the necessary time to the case at hand. Courts usually allow some leeway in these situations, especially for court-appointed defense attorneys.
Time for the defense. While both the prosecution and the defense are entitled to reasonable time to prepare, time shortages most often affect the latter. A lack of adequate time that renders an attorney ineffective in representing the client violates the Sixth Amendment right to counsel. On the other hand, if defense counsel has had ample time to prepare and no surprising event justifies a grant of additional time, a judge won’t hesitate to deny a continuance request. Courts will also deny continuance requests if the defendant or defense attorney caused the need for more time through negligence or delay (also known as “laches”).
The addition of new facts or crimes to the indictment or information (the document that charges the defendant with crimes) will typically require additional time to prepare a defense. For example, the prosecution changing the alleged date of a crime might justify a continuance to allow the defendant to prepare an alibi for the date in question.
However, a continuance due to a change in a charging document is warranted only if the change (known as “variance”) compromises the defendant’s case. If the prosecution makes changes merely to correct technical defects and those defects don’t alter the case in any meaningful way, then a judge probably won’t grant a continuance.
The Sixth Amendment guarantees criminal defendants the right to counsel, but that right has limitations. Defendants have the right to counsel of their choosing—within reason. When a defendant wants to change their defense attorney for another, the court must consider several factors before granting a continuance to allow the new lawyer to prepare. A judge may not arbitrarily insist that the case move forward when it’s clear that a continuance is needed for a new lawyer.
A judge probably won’t grant a continuance if:
New events or information previously unknown to the defense—for example, a new witness revealed the day before trial or new physical evidence supporting the prosecution’s case—will likely warrant a continuance. Similarly, in some cases the absence of a witness that the defendant expected to be present may necessitate additional time so the defendant can try to get the witness to court.
A judge may deny a continuance when:
It’s not uncommon for the prosecution’s witnesses to say something at trial that they either never said before (for example, when interviewed by the police) or that contradicts statements they’ve made in the past. When this happens, continuances are proper if the defense can show that the defendant:
As always, if the defendant’s negligence contributed to the surprise, the judge can reject the continuance request. Additionally, a court usually won’t grant a continuance where the surprise testimony comes from one of the defendant’s own witnesses.
Because continuances delay the resolution of a case, judges typically frown upon them. It’s usually only when the defendant’s rights might otherwise be violated that a court will grant a continuance request. Absent a law or constitutional right to the contrary, judges have broad discretion to determine whether to issue a continuance.
Perhaps the most important consideration for a judge is whether the party requesting the continuance has been diligent—in other words, whether the party put in sufficient effort. Parties must be active in reviewing evidence, interviewing witnesses, issuing subpoenas, and testing forensic evidence. Additionally, defendants must be conscientious in obtaining counsel and in alerting the court to any problems with current counsel.
Exercising diligence means that the party has done everything reasonable, not everything possible. Like most issues relating to continuances, the definition of diligence depends upon the facts and circumstances of the particular case.
]]>Whether it’s a good idea to waive time depends entirely on the circumstances of the case. It might be possible that the defense can force the prosecution to trial before the latter is ready—but that can be a risky strategy. Usually, it makes sense to take whatever time is necessary to fully prepare a defense. But defendants should generally rely on their lawyers when making the decision of whether to waive time. The lawyer should have weighed the pros and cons and be able to explain them. The worst mistake defendants can make is rushing to trial out of impatience at being behind bars, only to ensure that they remain there even longer.
]]>However, once criminal proceedings have begun (with the filing of charges), defendants can generally force them to move relatively quickly. For example, in California, a defendant charged with a felony must be brought to trial within 60 days of being arraigned on an information or indictment unless there is “good cause” for delay—otherwise, the judge must dismiss the charges. (Cal. Penal Code § 1382.)
The time within which a defendant must be brought to trial can vary from state to state, and also depending on whether the accused is in jail. In California, in-custody defendants charged with either a misdemeanor or an infraction have the right to go to trial within 30 days of arraignment or entry of a not-guilty plea; 45 days is the time limit for those who are out on bail or their own recognizance. (Id.)
In-custody defendants often don’t want to “waive” time, while out-of-custody defendants often do. There is no hard-and-fast practice, however, and defense attorneys usually have a strategy for recommending that the client either waive time or not.
If you face criminal charges, consult an experienced, preferably local, attorney regarding the time it might take to resolve your case and any other concerns you have. Only such a lawyer can protect your rights effectively and advise you as to your best course of action.
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