human-rights covid-19 sixth-amendment pandemic
How is the right to &quot;speedy trial&quot; being protected during pandemic?
<p>The right of a person accused of a crime to a &quot;speedy trial&quot; is widely considered a fundamental human right.  <a href="https://en.wikipedia.org/wiki/Speedy_trial" rel="nofollow noreferrer">It is enumerated in a number of government constitutions</a>.</p>
<p>However during the COVID-19 pandemic many courts suspended operations for months, and now more than 6 months later many are still struggling to resume even limited criminal trials.  This means that defendants will wait at least six months longer than usual for trials.</p>
<p>How does the law balance the delays wrought by exigent circumstances like this pandemic with the fundamental right of defendants to speedy trials?</p>

<p>The hard part is figuring out what the nstional standard of speed is. As held in <a href="https://supreme.justia.com/cases/federal/us/404/307/" rel="nofollow noreferrer">US v. Marion</a>, 404 U.S. 307,
The Sixth Amendment's guarantee of a speedy trial is applicable only after a person has been &quot;accused&quot; of a crime. In Washington, <a href="https://www.courts.wa.gov/court_rules/?fa=court_rules.display&amp;group=sup&amp;set=CrR&amp;ruleid=supCrR3.3" rel="nofollow noreferrer">Rule CrR 3.3</a> states the number of days and the order of priority to be given to trials. Therefore, under section (b), criminal trials take precedence over civil cases; criminal trials are to commence within 60 days or 90 days, depending on whether defendant is incarcerated. There are a number of factors that allow the deadline clock to reset, such as failure to appear, mistrial, change of venue etc. This also includes &quot;exclusions&quot; (events not counted for the 60/90 day rule) such as competency hearings, continuances and of particular interest for covid:</p>
<blockquote>
<p>(8)  Unavoidable or
unforeseen circumstances affecting the time for trial beyond the
control of the court or of the parties.</p>
</blockquote>
<p>If that doesn't work out, then there is a &quot;cure&quot;:</p>
<blockquote>
<p>(g) The court may continue the case beyond the limits specified in
section (b) on motion of the court or a party made within five days
after the time for trial has expired.  Such a continuance may be
granted only once in the case upon a finding on the record or in
writing that the defendant will not be substantially prejudiced in the
presentation of his or her defense.  The period of delay shall be for
no more than 14 days for a defendant detained in jail, or 28 days for
a defendant not detained in jail, from the date that the continuance
is granted. The court may direct the parties to remain in attendance
or be on- call for trial assignment during the cure period.</p>
</blockquote>
<p>That give a little bit of leeway. If they still cannot manage within that time frame, the last section of the rule is</p>
<blockquote>
<p>(h) A charge not brought to trial within the time limit determined
under this rule shall be dismissed with prejudice.  The State shall
provide notice of dismissal to the victim and at the court's
discretion shall allow the victim to address the court regarding the
impact of the crime.  No case shall be dismissed for time-to-trial
reasons except as expressly required by this rule, a statute, or the
state or federal constitution.</p>
</blockquote>
<p>The covid lockdown orders appear to have worked around the time to trial rules. <a href="http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20Orders/Supreme%20Court%20Emergency%20Order%20re%20CV19%20031820.pdf" rel="nofollow noreferrer">This order of March 20</a> orders that</p>
<blockquote>
<ol start="4">
<li>All criminal jury trials are suspended until after April 24, 2020.  Trials already in session where a jury has been sworn and social
distancing and other public health  measures  are  strictly  observed
may  proceed  or  be  continued  if  the defendant agrees to a
continuance.  For all criminal trials suspended under this provision,
April 25, 2020 will be the new commencement date under CrR 3.3.</li>
</ol>
</blockquote>
<p>So it seems likely given the existing latitude in commencing trials that section (h) has not been invoked, and covid hasn't been a criminal get out of jail free card. But that's just Washington, and it may be an under-advertised problem.</p>

<p>In the United States, there are two main sets of laws governing the right to a speedy trial.</p>
<p>The right to a speedy trial is protected by the Sixth Amendment, but that right is somewhat amorphous. It does not entitle you to a trial within any specified period of time, only to a trial within a reasonable amount of time, considering four factors, &quot;[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.&quot; <a href="https://supreme.justia.com/cases/federal/us/407/514/" rel="nofollow noreferrer"><em>Barker v. Wingo</em>, 407 U.S. 514, 530 (1972)</a>.</p>
<p>The right to a speedy trial is also statutorily protected. As far as I know, every state has a law that sets bright-line standards for how long the government has to bring a case to trial. For instance, the federal Speedy Trial Act generally entitles a defendant to a trial within 30 days of arrest. <a href="https://www.law.cornell.edu/uscode/text/18/3161" rel="nofollow noreferrer">18 U.S. Code § 3161(b)</a>.</p>
<p>But the statutes also generally allow quite a bit of flexibility. The defendant himself will often want to delay the trial while he pursues a fact investigation, discovery, pretrial motions, etc. But the government may also be entitled to delay the trial, especially if it is unable to prepare for trial because it is busy responding to the defendant's discovery requests or pretrial motions.</p>
<p>With both the constitutional and the statutory right to a speedy trial, then, courts are generally permitted a bit of latitude to delay a trial as necessary, especially in cases where the delay is not attributable to the government.</p>
<p>With COVID-19, the widespread practice has been, as you noted, to delay trials. Like any other, that right is not absolute, and it must give way where the force of nature. Although inconvenient for many defendants, there was little suggestion -- at least in the early days of the shutdown -- that this practice violates the right to a speedy trial in general, though there may be cases where specific facts lead to a different outcome. But as time wears on, it seems likely that prosecutors and judges will need to find a way to make trials happen.</p>
