Speedy Trial: Just How Fast is “Speedy”?

February 2024

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Recent high-profile cases have illustrated the wide range of time it can take a federal criminal case to progress to trial. One defendant was set for trial just months after his arrest, while former President Donald J. Trump asked a federal court to postpone one of his trials until April 2026 [1]. An interested observer could reasonably ask: just what does the law mean by a “speedy” trial?

I. Basic Principles

The Sixth Amendment guarantees that in “all criminal prosecutions, the accused shall enjoy the right to a speedy … trial.” In the centuries since that was written, courts have developed an “ad hoc balancing test” for applying that promise. [2]

In 1972, the Supreme Court decided Barker v. Wingo, in which it rejected proposals for a fixed time period in which criminal trials must begin. Instead, the Court said that constitutional speedy-trial claims should be decided on a case-by-case basis under a four-factor balancing test. Courts now evaluate Sixth Amendment speedy-trial claims by reference to these factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. [3]

The first factor acts as a “triggering mechanism” — courts will reject speedy-trial claims at the outset unless the delay is long enough to be presumptively prejudicial. In the Fifth Circuit, that means there must have been at least one year of delay from indictment or arrest to trial. [4] Under the other three factors, courts consider which party (or whether the court) caused the delay, whether the defendant argued for a speedy trial, and whether the defendant was harmed by the delay.

II. Congress Stepped In

A few years after Barker was decided, Congress enacted the Speedy Trial Act to protect the Sixth Amendment right. [5] Under the Act, federal criminal trials must begin no more than 70 days after the defendant is charged or brought to court, whichever occurs last. [6]

In the Act, however, Congress listed several exceptions to that general rule. Certain types of delay are automatically excluded from the 70-day limit. For example, when a party files motions, the court has at least 30 days in which to consider those motions. [7] Those 30 days do not count toward the 70-day limit.

In addition to those automatic exclusions, other periods of time can be excluded from the 70-day limit if the court determines that the delay serves the “ends of justice” and outweighs the “best interest of the public and the defendant in a speedy trial.” [8] To grant that type of delay, a court must make specific findings, including that the delay is not based on “general congestion of the court’s calendar” or on “lack of diligent preparation … on the part of the attorney for the Government.” [9]

Finally, although many district courts still ask defendants to waive their Speedy Trial Act protections when requesting a continuance, the Supreme Court has been clear that such prospective waivers have no effect. [10] That is so, in part, because the public has an interest in speedy trials, even if all parties to the case desire a delay.

III. Practical Tips: The Speedy Trial Act Has More Teeth Than The Sixth Amendment

Since the Speedy Trial Act was enacted 50 years ago, courts have applied it literally and strictly. As a result, cases are frequently dismissed based on violations of the 70-day deadline and other provisions of the Act. [11] The Sixth Amendment, however, only rarely serves as a basis for dismissing criminal charges. [12]

Although many cases are dismissed under the Speedy Trial Act, they are not always dismissed with prejudice, which means the defendant can be immediately reindicted for the same charges. [13] That happens because once the Act is violated, a district court must dismiss the case and then decide whether to dismiss with or without prejudice. Courts make that decision after considering the seriousness of the alleged crimes, the circumstances leading to the dismissal, the impact of reprosecution, and any prejudice to the defendant. [14]

Practitioners should note that if a defendant is reindicted after a Speedy Trial Act dismissal without prejudice, they must move to dismiss the second indictment on the ground that the first indictment should have been dismissed with prejudice—failure to do so will waive the issue. [15]

We recently had success obtaining a dismissal of a Foreign Corrupt Practices Act (FCPA) indictment against our Portuguese client, who had been extradited to the United States to face charges involving former officials of the Venezuelan state-owned oil company, PDVSA. The Fifth Circuit Court of Appeals affirmed the dismissal, agreeing that there had been a Speedy Trial Act violation, and it remanded the case for a determination of whether that dismissal should be with prejudice. United States v. Murta, No. 23-20276, 2024 WL 64764 (5th Cir. Jan. 5, 2024).

[1] Jacqueline Thomsen, Trump’s lawyers propose 2026 trial date in federal election case, Reuters (Aug. 18, 2023), https://www.reuters.com/legal/trumps-lawyers-propose-2026-trial-date-election-case-2023-08-17/.  In another case, the court has continued some deadlines but is postponing a decision on whether to also delay the trial date.  See Order, at *6, US v. Trump, et al., No.23-80101-CR-CANNON (S.D. Fla. Nov. 10, 2023) (“Defendants need more time to review the discovery in this case. This Order aims to afford that opportunity in a reasonable fashion, balanced against the public’s right to a speedy trial.”), available at https://s3.documentcloud.org/documents/24154002/cannon.pdf.

[2] Barker v. Wingo, 407 U.S. 514, 530 (1972).

[3] Id.

[4] US v. Duran-Gomez, 984 F.3d 366, 374 (5th Cir. 2020).

[5] US v. MacDonald, 456 U.S. 1, 7 n.7 (1982) (citing S. Rep. No. 932-1021 (1974)).

[6] 18 U.S.C. § 3161(c)(1).

[7] § 3161(h)(1)(D) & (H); see also US v Stephens, 489 F.3d 647, 656 (5th Cir. 2007).

[8] § 3161(h)(7)(A).

[9] § 3161(h)(7)(C).

[10] Zedner v. US, 547 U.S. 489, 502 (2006).

[11] In the Fifth Circuit alone, countless cases have been dismissed under the Speedy Trial Act.  See, e.g., US v. Dent, No. 21-60569, 2022 WL 3133864, at *4 (5th Cir. Aug. 5, 2022) (unpublished); US v. Ortiz, 687 F.3d 660, 661 (5th Cir. 2012); US v. Burrell, 634 F.3d 284, 286 (5th Cir. 2011); US v. Lopez-Valenzuela, 511 F.3d 487, 493 (5th Cir. 2007); Stephens, 489 F.3d 647; US v. Martinez-Espinoza, 299 F.3d 414 (5th Cir. 2002); US v. Alford, 142 F.3d 825, 829 (5th Cir. 1998); US v. Jones, 56 F.3d 581 (5th Cir. 1995); US v. Johnson, 29 F.3d 940, 941 (5th Cir. 1994); US v. Blackwell, 12 F.3d 44 (5th Cir. 1994); US v. Ortega-Mena, 949 F.2d 156, 160 (5th Cir. 1992); US v. Velasquez, 890 F.2d 717, 719 (5th Cir. 1990); US v. Castle, 906 F.2d 134, 138 (5th Cir. 1990); US v. Bigler, 810 F.2d 1317, 1324 (5th Cir. 1987).

[12] E.g., US v. Black, 918 F.3d 243 (2d Cir. 2019) (constitutional speedy trial violation when defendants waited 68 months for a trial); US v. Molina-Solorio, 577 F.3d 300 (5th Cir. 2009) (constitutional speedy trial violation based on nearly 10 years of delay).

[13] By contrast, “[t]he only permissible remedy for violation of the Sixth Amendment right to speedy trial is dismissal with prejudice.”  US v. Novelli, 544 F.2d 800, 803 (5th Cir. 1977) (citing Strunk v. US, 412 U.S. 434 (1973)).

[14] 18 U.S.C. § 3162(a)(1); US v. Taylor, 487 U.S. 326, 334 (1988).

[15] US v Stephens, 511 F.3d 492, 493 (5th Cir. 2007); US v Jackson, 30 F.3d 572 (5th Cir. 1994).

KHALIL & LAKE is a white-collar litigation boutique focusing on federal criminal law and complex investigations in a variety of business sectors. If you have any questions about these issues, or if you would like a copy of any materials mentioned here, please let us know.