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Speedy Trial

What is a "Speedy Trial"?

In answering this question it is helpful to discuss the difference between 1) The Statute of Limitations, 2) The Constitutional Right to a Speedy Trial, and 3) A Statutory Demand for a Speedy Trial.

1) The Statute of Limitations

The Statute of Limitations is governed by Georgia Statute. It can be found in the Official Code of Georgia at Title 17, Chapter 3, Section 1 which we abbreviate as O.C.G.A. 17-3-1. This state law governs how much time a prosecutor has to bring charges against a defendant after a crime has been committed. The very short version is that:

a) murder charges can be brought at any time

b) other crimes punishable by life imprisonment or death must be brought within 7 years, or 15 years for forcible rape.

c) certain violent and sex crimes can be brought at any time if there is DNA evidence establishing the identity of the accused.

d) misdemeanors must be prosecuted within 2 years

Be aware that this is just a basic example - there are other factors that may stop the clock or increase the time.

If the state fails to indict you within the applicable time under the statute of limitations, your case can be dismissed and never brought back.

2) Constitutional Right to a Speedy Trial

When we talk about a Constitutional Speedy it is usually in the context of filing a motion to dismiss the case against a Defendant because the State has taken so long to prosecute him/her that it would be unfair to do so now. This argument is independant of the Statute of Limitations which specifically says that prosecution for certain crimes MUST be brought within a certain number of years. While both issues deal with the unfairness that results in forcing a Defendant to stand trial for crimes that happened long ago, the mechanics of them are completely different.

Unlike the Statute of Limitations, there is no set time limit for a "speedy trial". For example, there is no statute of limitations for murder, so a prosecution for murder can be brought at any time. However, the Court could still determine that a long delay in bringing a defendant to trial has violated the Defendant's right to a speedy trial and the case should be dismissed. Or consider a prosecution for theft where the State would have four years to prosecute you, but two years after being arrested the defendant still has not had a trial. Even though the case is still well within the statute of limitations, there may be issues that now make it fundamentally unfair to try the Defendant two years after he was arrested.

Article 1, Section 1, Paragraph 11 of the Georgia Constitution and the Sixth and Fourteenth Amendments to the Constitution of the United States clearly guarantee citizens the right to a speedy trial, but the Sixth Amendment is short on details as to what exactly that means. Because there is no specific length of time spelled out, we must look to how the Courts have interpreted what "speedy" means. A great place to start is the U.S. Supreme Court case Barker v. Wingo, 407 U.S. 514 (1972). In Barker, the Court says you have to weigh four factors to determine if there has been a violation of one's right to a speedy trial. The factors are 1) the length of the delay, 2) the reason for the delay, 3) when the defendant actually asserted his right to a speedy trial, and 4) the prejudice to the defendant caused by the delay. The Court will have a hearing on the matter and weigh each of these factors in formulating its decision.

1) The Length of the Delay - This factor is simply how long has it been since the defendant was either arrested or formally charged. Anything over a year is presumptively prejudicial and weighs in favor of the defendant.

2) The Reason for the Delay- The delay could be because the defendant kept asking for continuances (weighs against him). Or maybe it is because the State arrested the defendant, but then waited years to indict the case (weighs against the state). Even if nobody intentionally delayed the case, but it has taken so long because there are just too many cases out there and the Court is overloaded, it still weighs against the State. Ultimately, it is the State's responsibility to bring a defendant to trial, not his own.

3) When the Defendant Actually Asserted His Right - When did the defendant say he wanted a speedy trial? If he showed up at all those trial calendars, announced "ready", and said he wanted a speedy trial, that weighs in favor of the defendant. Sometimes the defendant might remain quietly out on bond hoping witnesses would move away or evidence would get lost. In that case, not asserting his rights may weigh against defendant.

4) The Prejudice to the Defendant Caused by the Delay - What harm has been done because of the delay in bringing the defendant to trial? Did witnesses disappear, memories fade, evidence get lost? Basically, what has happend over all this time that puts the defendant at an unfair disadvantage in trying this case.

These are all the considerations the Court must weigh in determining if someone's RIGHT to a speedy trial has been violated. If the Court weighs these factors and finds in the Defendant's favor, then the case can be dismissed. However, if the Court finds that the delay was not the State's fault or that the Defendant has not been prejudiced, then the case still proceeds to trial.

3) Statutory Demand for a Speedy Trial

This is what most defendants mean when they tell me they want a speedy trial. Like the Statute of Limitations, the Statutory Speedy Trial is one guaranteed by statute. This law can be found in O.C.G.A. 17-7-170 and, if it is a capital offense, 17-7-171. What this law says is that a defendant can file a motion requesting a speedy trial. The request must be filed in the same term of court he is indicted, or in the next term of court. After that it can only be filed with special permission from the court. The State then has to give the defendant a trial in that term of court or the next (or if it is a capital case, the next two terms). If they fail to bring the defendant to trial in that time then the defendant is absolutely discharged and acquitted of the charges in the indictment.

It is important to note that "terms of court" differ across the counties in Georgia. In some counties wher I practice a term is 3 or 4 months; in Fulton County (Atlanta) the terms are only two months. Here is an example applying all of that to a Fulton County case:

Terms of court in Fulton County are two months. January to February is one term. So if client was indicted in February on a drug charge, he can file a speedy trial demand in February (still in the same term), or in March or April (the next term). If he waits until after April to decide he wants a speedy trial he can only file it with special permission from the Court. If he filed it in April, then the State has to give him a trial in April (same term), or May or June (the next term). If he doesn't get his trial by June, then his case will be dismissed and he will be acquitted of the charges in the indictment.

Conclusion - What does it all mean?

The short of it is that time is always a factor in a criminal case. In addition to the countless other issues I look for in evaluating my clients' cases, I am always conscious of the issues that time creates for both my client and the prosecutor who is trying to convict him.

If the State is trying to prosecute my client after the Statute of Limitations has run, I am going to file a motion to dismiss those charges. I currently have a very old case that includes both murder charges (capital offenses), and aggravated assault and firearms charges (non-capital offenses). The murder charge is still valid because it has no set time under the Statute of Limitations, but the remaining charges are past the time limit and should be dismissed.

Even though charges are still within the Statute of Limitations, a prosecution may still violate my client's rights to a Speedy Trial. Has the State waited so long to prosecute that now it would be unfairly prejudicial to the defendant? Again, you can file a motion and have the Court weigh the various factors to see if this case should be dismissed.

And finally, I look at whether the State is going to just sit on a case with no end in sight. In some cases, this may be a good thing. While time may be prejudicial to a defendant, it can also be extremely helpful if the State's witnesses or evidence go missing over time. In fact, simply waiting quietly is a strategy often used by the defense team in a criminal case.

However, sometimes a client is sitting in jail without a bond, or he can't make bond. If we know there isn't going to be a plea deal made, we might rather go ahead and speed things up. After all, we don't want an innocent person sitting in jail awaiting a trial that may be years away. In those cases, my client and I will discuss the advantages and disadvantages of filing a speedy trial demand to force the State to try our case. This is a conversation we have fairly early in the process because you must file it within a short time after indictment. Finally, if you are considering filing a speedy trial demand, you must prepared and ready for trial. Because losing a trial has dire consequences, a defendant is not doing himself any favors by demanding a trial when he is not ready to defend it.