The right to a speedy trial is an ancient common law right that is linked to the writ of habeas corpus. These protections emerged in response to monarchs who imprisoned enemies of the crown in the Tower of London without permitting them access to courts. By 1642, Sir Edward Coke was able to conclude that English judges “have not suffered the prisoner to be long detained, but . . . have given the prisoner full and speedy justice. . . . ” The Framers of the Constitution understood that preventing lengthy pre-trial detention was critical to a justice system. Indeed, the Constitution contains three interrelated rights that are designed to ensure that prisoners cannot be detained in an American version of the Tower of London: the rights to habeas corpus (Article I, Section 9, Clause 2), to non-excessive bail (Amendment VIII), and to a speedy trial (Amendment VI). Early American cases sometimes decided the issue of pre-trial detention simply through the application of state habeas corpus without even referring to the right to a speedy trial.

But the speedy trial right has a role to play beyond avoiding pre-trial detention. In 1804, a South Carolina court held that a defendant who was out on bail could not use the state habeas corpus act to obtain discharge from an indictment. State v. Buyck (1804). The court noted, however, that “it was the duty of the court to take care that criminal causes should not be unreasonably protracted or delayed.” The speedy trial right became an exclusive remedy for defendants who were on bail and thus did not suffer pre-trial detention.

The modern court views the right to a speedy trial as preventing both the harm of pretrial detention and the harm to the defense caused by delay— for example, fading memories or the deaths of witnesses. The right is triggered only if the delay is caused by the prosecution, not by the defense attorney’s actions. Vermont v. Brillon (2009). The defendant must also show that the unreasonable delay caused by the state prejudiced his case. Reed v. Farley (1994). Delays between arrest and indictment and between indictment and trial, as well as continuances at trial and an unduly lengthy appellate process, are relevant to a court’s determination if there has been a constitutional violation.

The seminal case on speedy trial, Barker v. Wingo (1972), held that courts should consider (1) whether and how the defendant asserts his right to a speedy trial, (2) the length of the delay, (3) the reason the state offers to excuse the delay, and (4) the harm that the defendant suffered because of the delay. As with any balancing test, greater levels of harm in one or two categories will compensate for lesser harms in other categories. So, for example, the court held in 1992 that a delay of more than eight years, with no legitimate excuse for the delay, was sufficient to show a speedy trial violation even though the defendant was unaware of his indictment and thus suffered no pre-trial detention or anxiety. Doggett v. United States (1992).

When measuring the length of the delay, the Court has held that the period begins from the time of arrest or indictment, not from the moment an investigation begins. United States v. MacDonald (1982). It is left to statutes of limitations and the Due Process Clause to cure the abuse of too long an investigation before charges are brought. United States v. Loud Hawk (1986).

Most constitutional violations are cured by ordering a trial that is free of the error. But the harm that delay would normally cause the defense cannot be remedied by a new trial, which would take place after even further delay. The Court’s response to this conundrum is to forbid the prosecution of a defendant who has proven that his speedy trial rights were violated. Strunk v. United States (1973).

To make a conviction impossible to obtain when the trial is held too late is logical but extreme. As a result, courts are loath to find speedy trial violations. Perhaps not coincidentally, the Barker test gives lower courts great discretion in deciding speedy-trial claims. The facts of Barker itself demonstrate how much discretion courts have to decide whether a trial is speedy. Willie Barker stood convicted of the brutal murder of an elderly couple. Even though the trial occurred more than five years after indictment, the court unanimously held that it did not violate Barker’s right to a speedy trial. Critical to the court’s reasoning is that Barker did not demand a trial until very late in the five-year period. Though the court denied making demand the most important of the four factors, it would appear that it viewed Barker’s failure to demand a trial as acquiescence in the delay.

If demanding a trial is the most important factor in the Barker test, then it seems likely that there will be few speedy trial violations. Defendants who demand a trial will in most cases get one. And, if the defendant is happy being free on bail and does not demand a trial, it will probably be difficult to prove a speedy trial violation.