Barker v. Wingo
407
U.S. 514 (1972)
Petitioner was not
brought to trial for murder until more than five years after he had been
arrested, during which time the prosecution obtained numerous continuances,
initially for the purpose of first trying petitioner's alleged accomplice so
that his testimony, if conviction resulted, would be available at petitioner's
trial. Before the accomplice was finally convicted, he was tried six times.
Petitioner made no objection to the continuances until three and one-half years
after he was arrested.
After the accomplice was
finally convicted, petitioner, after further delays because of a key
prosecution witness' illness, was tried and convicted. In this habeas corpus
proceeding, the Court of Appeals, concluding that petitioner had waived his
right to a speedy trial for the period prior to his demand for trial, and, in
any event, had not been prejudiced by the delay, affirmed the District Court's
judgment against petitioner.
Held: A defendant's constitutional right to a speedy trial
cannot be established by any inflexible rule, but can be determined only on an ad hoc
balancing basis in which the conduct of the prosecution and that of the
defendant are weighed. The court should assess such factors as the length of
and reason for the delay, the defendant's assertion of his right, and prejudice
to the defendant. In this case, the lack of any serious prejudice to petitioner
and the fact, as disclosed by the record, that he did not want a speedy trial
outweigh opposing considerations, and compel the conclusion that petitioner was
not deprived of his due process right to a speedy trial.
affirmed.
POWELL, J., delivered
the opinion for a unanimous Court. WHITE, J., filed a concurring opinion, in
which BRENNAN, J., joined, post, p. 407 U. S. 536.
Page 407
U. S. 515
MR. JUSTICE POWELL
delivered the opinion of the Court.
Although a speedy trial
is guaranteed the accused by the Sixth Amendment to the Constitution, [Footnote 1] this Court has dealt with that right
on infrequent occasions. See
Beavers v. Haubert, 198 U. S. 77 (1905); Pollard v. United States, 352 U. S. 354 (1957); United States v. Ewell, 383 U. S. 116 (1966); United States v. Marion, 404 U. S. 307 (1971). See also United States v. Provoo, 17
F.R.D. 183 (D. Md.), aff'd, 30 U.S. 857 (1955). The Court's opinion in Klopfer v. North Carolina, 386 U. S. 213 (1967), established that the right to a speedy trial
is "fundamental," and is imposed by the Due Process Clause of the
Fourteenth Amendment on the States. [Footnote 2]
See Smith v. Hooey, 393 U. S. 374 (1969); Dickey v. Florida, 398 U. S. 30 (1070). As MR. JUSTICE BRENNAN
Page 407
U. S. 516
pointed out in his
concurring opinion in Dickey, in none of these cases have we attempted to set out
the criteria by which the speedy trial right is to be judged. 398 U.S. at 398 U. S. 401. This case compels us to make such an attempt.
I
On July 20, 1958, in
Christian County, Kentucky, an elderly couple was beaten to death by intruders
wielding an iron tire tool. Two suspects, Silas Manning and Willie Barker, the
petitioner, were arrested shortly thereafter. The grand jury indicted them on
September 15. Counsel was appointed on September 17, and Barker's trial was set
for October 21. The Commonwealth had a stronger case against Manning, and it
believed that Barker could not be convicted unless Manning testified against
him. Manning was naturally unwilling to incriminate himself. Accordingly, on
October 23, the day Silas Manning was brought to trial, the Commonwealth sought
and obtained the first of what was to be a series of 16 continuances of
Barker's trial. [Footnote 3] Barker made no
objection. By first convicting Manning, the Commonwealth would remove possible
problems of self-incrimination, and would be able to assure his testimony
against Barker.
The Commonwealth
encountered more than a few difficulties in its prosecution of Manning. The
first trial ended in a hung jury. A second trial resulted in a conviction, but
the Kentucky Court of Appeals reversed because of the admission of evidence
obtained by an illegal search. Manning v. Commonwealth,
328 S.W.2d 421 (1959). At his third trial, Manning was again convicted, and the
Court of Appeals again reversed
Page 407
U. S. 517
because the trial court
had not granted a change of venue. Manning v. Commonwealth,
346 S.W.2d 755 (1961). A fourth trial resulted in a hung jury. Finally, after
five trials, Manning was convicted, in March, 1962, of murdering one victim,
and, after a sixth trial, in December, 1962, he was convicted of murdering the
other. [Footnote 4]
The Christian County
Circuit Court holds three terms each year -- in February, June, and September.
Barker's initial trial was to take place in the September term of 1958. The
first continuance postponed it until the February, 1959, term. The second
continuance was granted for one month only. Every term thereafter for as long a
the Manning prosecutions were in process, the Commonwealth routinely moved to
continue Barker's case to the next term. When the case was continued from the
June, 1959, term until the following September, Barker, having spent 10 months
in jail, obtained his release by posting a $5,000 bond. He thereafter remained
free in the community until his trial. Barker made no objection, through his
counsel, to the first 11 continuances.
When, on February 12,
1962, the Commonwealth moved for the twelfth time to continue the case until
the following term, Barker's counsel filed a motion to dismiss the indictment.
The motion to dismiss was denied two weeks later, and the Commonwealth's motion
for a continuance was granted. The Commonwealth was granted further
continuances in June, 1962, and September, 1962, to which Barker did not
object.
In February, 1963, the
first term of court following Manning's final conviction, the Commonwealth
moved to set Barker's trial for March 19. But on the day scheduled for trial,
it again moved for a continuance until the June term. It gave as its reason the
illness
Page 407
U. S. 518
of the ex-sheriff who
was the chief investigating officer in the case. To this continuance, Barker
objected unsuccessfully.
The witness was still
unable to testify in June, and the trial, which had been set for June 19, was
continued again until the September term over Barker's objection. This time the
court announced that the case would be dismissed for lack of prosecution if it
were not tried during the next term. The final trial date was set for October
9, 1963. On that date, Barker again moved to dismiss the indictment, and this
time specified that his right to a speedy trial had been violated. [Footnote 5] The motion was denied; the trial
commenced with Manning a the chief prosecution witness; Barker was convicted
and given a life sentence.
Barker appealed his
conviction to the Kentucky Court of Appeals, relying in part on his speedy
trial claim. The court affirmed. Barker v. Commonwealth, 385 S.W.2d 671
(1964). In February, 1970, Barker petitioned for habeas corpus in the United
States District Court for the Western District of Kentucky. Although the
District Court rejected the petition without holding a hearing, the court
granted petitioner leave to appeal in forma pauperis and a certificate of
probable cause to appeal. On appeal, the Court of Appeals for the Sixth Circuit
affirmed the District Court. 442 F.2d 1141 (1971). It ruled that Barker had
waived his speedy trial claim for the entire period before February, 1963, the
date on which the court believed he had first objected to the delay by filing a
motion to dismiss. In this belief the court was mistaken, for the record
reveals
Page 407
U. S. 519
that the motion was
filed in February, 1962. The Commonwealth so conceded at oral argument before
this Court. [Footnote 6] The court held
further that the remaining period after the date on which Barker first raised
his claim and before his trial -- which it thought was only eight months but
which was actually 20 months -- was not unduly long. In addition, the court
held that Barker had shown no resulting prejudice, and that the illness of the
ex-sheriff was a valid justification for the delay. We granted Barker's
petition for certiorari. 404 U.S. 1037 (1972).
II
The right to a speedy
trial is generically different from any of the other rights enshrined in the
Constitution for the protection of the accused. In addition to the general
concern that all accused persons be treated according to decent and fair
procedures, there is a societal interest in providing a speedy trial which
exists separate from, and at times in opposition to, the interests of the
accused. The inability of courts to provide a prompt trial has contributed to a
large backlog of cases in urban courts which, among other things, enables
defendants to negotiate more effectively for pleas of guilty to lesser offenses
and otherwise manipulate the system. [Footnote 7]
In addition, persons released on bond for lengthy periods awaiting trial have
an opportunity to commit other crimes. [Footnote 8]
It must be of little comfort to the residents of Christian County, Kentucky, to
know that Barker was at large on bail for over four years while accused of a
vicious
Page 407
U. S. 520
and brutal murder of
which he was ultimately convicted. Moreover, the longer an accused is free
awaiting trial, the more tempting becomes his opportunity to jump bail and
escape. [Footnote 9] Finally, delay between
arrest and punishment may have a detrimental effect on rehabilitation. [Footnote 10]
If an accused cannot
make bail, he is generally confined, as was Barker for 10 months, in a local
jail. This contributes to the overcrowding and generally deplorable state of
those institutions. [Footnote 11] Lengthy
exposure to these conditions "has a destructive effect on human character,
and makes the rehabilitation of the individual offender much more
difficult." [Footnote 12] At times the
result may even be violent rioting. [Footnote 13]
Finally, lengthy pretrial detention is costly. The cost of maintaining a
prisoner in jail varies from $3 to $9 per day, and this amounts to millions
across
Page 407
U. S. 521
the Nation. [Footnote 14] In addition, society loses wages
which might have been earned, and it must often support families of
incarcerated breadwinners.
A second difference
between the right to speedy trial and the accused's other constitutional rights
is that deprivation of the right may work to the accused's advantage. Delay is
not an uncommon defense tactic. As the time between the commission of the crime
and trial lengthens, witnesses may become unavailable or their memories may
fade. If the witnesses support the prosecution, its case will be weakened,
sometimes seriously so. And it is the prosecution which carries the burden of
proof. Thus, unlike the right to counsel or the right to be free from compelled
self-incrimination, deprivation of the right to speedy trial does not per se
prejudice the accused's ability to defend himself.
Finally, and perhaps
most importantly, the right to speedy trial is a more vague concept than other
procedural rights. It is, for example, impossible to determine with precision
when the right has been denied. We cannot definitely say how long is too long
in a system where justice is supposed to be swift but deliberate. [Footnote 15] As a consequence, there is no fixed
point in the criminal process when the State can put the defendant to the
choice of either exercising or waiving the right to a speedy trial. If, for
example, the State moves for
Page 407
U. S. 522
a 60-day continuance,
granting that continuance is not a violation of the right to speedy trial
unless the circumstances of the case are such that further delay would endanger
the values the right protects. It is impossible to do more than generalize about
when those circumstances exist. There is nothing comparable to the point in the
process when a defendant exercises or waives his right to counsel or his right
to a jury trial. Thus, as we recognized in Beavers v. Haubert, supra, any inquiry into a speedy trial claim necessitates a
functional analysis of the right in the particular context of the case:
"The right of a
speedy trial is necessarily relative. It is consistent with delays, and depends
upon circumstances. It secures rights to a defendant. It does not preclude the
rights of public justice."
The amorphous quality of
the right also leads to the unsatisfactorily severe remedy of dismissal of the
indictment when the right has been deprived. This is indeed a serious
consequence, because it means that a defendant who may be guilty of a serious
crime will go free, without having been tried. Such a remedy is more serious
than an exclusionary rule or a reversal for a new trial, [Footnote 16] but it is the only possible remedy.
III
Perhaps because the
speedy trial right is so slippery, two rigid approaches are urged upon us as
ways of eliminating some of the uncertainty which courts experience
Page 407
U. S. 523
in protecting the right.
The first suggestion is that we hold that the Constitution requires a criminal
defendant to be offered a trial within a specified time period. The result of
such a ruling would have the virtue of clarifying when the right is infringed
and of simplifying courts' application of it. Recognizing this, some
legislatures have enacted laws, and some courts have adopted procedural rules
which more narrowly define the right. [Footnote 17]
The United States Court of Appeals for the Second Circuit has promulgated rules
for the district courts in that Circuit establishing that the government must
be ready for trial within six months of the date of arrest, except in unusual
circumstances, or the charge will be dismissed. [Footnote
18] This type of rule is also recommended by the American Bar
Association. [Footnote 19]
But such a result would
require this Court to engage in legislative or rulemaking activity, rather than
in the adjudicative process to which we should confine our efforts. We do not
establish procedural rules for the States, except when mandated by the
Constitution. We find no constitutional basis for holding that the speedy trial
right can be quantified into a specified number of days or months. The States,
of course, are free to prescribe a reasonable period consistent with
constitutional standards, but our approach must be less precise.
The second suggested
alternative would restrict consideration
Page 407
U. S. 524
of the right to those
case in which the accused has demanded a speedy trial. Most States have
recognized what is loosely referred to as the "demand rule," [Footnote 20] although eight States reject it. [Footnote 21] It is not clear, however, precisely
what is meant by that term. Although every federal court of appeals that has
considered the question has endorsed some kind of demand rule, some have
regarded the rule within the concept of waiver, [Footnote
22] whereas others have viewed it as a factor to be weighed
Page 407
U. S. 525
in assessing whether
there has been a deprivation of the speedy trial right. [Footnote 23] We shall refer to the former approach
as the demand-waiver doctrine. The demand-waiver doctrine provides that a
defendant waives any consideration of his right to speedy trial for any period prior
to which he has not demanded a trial. Under this rigid approach, a prior demand
is a necessary condition to the consideration of the speedy trial right. This
essentially was the approach the Sixth Circuit took below.
Such an approach, by
presuming waiver of a fundamental right [Footnote
24] from inaction, is inconsistent with this Court's pronouncements on
waiver of constitutional rights. The Court has defined waiver as "an
intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 464 (1938). Courts should "indulge every reasonable
presumption against waiver," Aetna Ins. Co. v. Kennedy, 301 U. S. 389, 301 U. S. 393 (1937), and they should "not presume
acquiescence
Page 407
U. S. 526
in the loss of
fundamental rights," Ohio
Bell Tel. Co. v. Public Utilities Comm'n, 301 U. S. 292, 301 U. S. 307 (137). In Carnley v. Cochran, 369 U. S. 506 (1962), we held:
"Presuming waiver
from a silent record is impermissible. The record must show, or there must be
an allegation and evidence which show, that an accused was offered counsel but
intelligently and understandably rejected the offer. Anything less is not
waiver."
Id. at 369 U. S. 516. The Court has ruled similarly with respect to waiver
of other rights designed to protect the accused. See, e.g., Miranda v. Arizona, 384 U. S. 436, 384 U. S. 475-476 (1966); Boykin v. Alabama, 395 U. S. 238 (1969).
In excepting the right
to speedy trial from the rule of waiver we have applied to other fundamental
rights, courts that have applied the demand-waiver rule have relied on the assumption
that delay usually works for the benefit of the accused, and on the absence of
any readily ascertainable time in the criminal process for a defendant to be
given the choice of exercising or waiving his right. But it is not necessarily
true that delay benefits the defendant. There are cases in which delay
appreciably harms the defendant's ability to defend himself. [Footnote 25]
Page 407
U. S. 527
Moreover, a defendant
confined to jail prior to trial is obviously disadvantaged by delay as is a defendant
released on bail but unable to lead a normal life because of community
suspicion and his own anxiety.
The nature of the speedy
trial right does make it impossible to pinpoint a precise time in the process
when the right must be asserted or waived, but that fact does not argue for
placing the burden of protecting the right solely on defendants. A defendant
has no duty to bring himself to trial; [Footnote 26]
the State has that duty as well as the duty of insuring that the trial is
consistent with due process. [Footnote 27]
Moreover, for the reasons earlier expressed, society has a particular interest
in bringing swift prosecutions, and society's representatives are the ones who
should protect that interest.
It is also noteworthy
that such a rigid view of the demand-waiver rule places defense counsel in an
awkward position. Unless he demands a trial early and often, he is in danger of
frustrating his client's right. If counsel is willing to tolerate some delay
because he finds it reasonable and helpful in preparing his own case, he may be
unable to obtain a speedy trial for his client at the end of that time. Since,
under the demand-waiver rule, no time
Page 407
U. S. 528
runs until the demand is
made, the government will have whatever time is otherwise reasonable to bring
the defendant to trial after a demand has bee made. Thus, if the first demand
is made three months after arrest in a jurisdiction which prescribes a
six-month rule, the prosecution will have a total of nine months -- which may
be wholly unreasonable under the circumstances. The result in practice is
likely to be either an automatic, pro forma demand made immediately
after appointment of counsel or delays which, but for the demand-waiver rule,
would not be tolerated. Such a result is not consistent with the interests of
defendants, society, or the Constitution.
We reject, therefore,
the rule that a defendant who fails to demand a speedy trial forever waives his
right. [Footnote 28] This does not mean,
however, that the defendant has no responsibility to assert his right. We think
the better rule is that the defendant's assertion of or failure to assert his
right to a speedy trial is one of the factors to be considered in an inquiry
into the deprivation of the right. Such a formulation avoids the rigidities of
the demand-waiver rule and the resulting possible unfairness in its
application. It allows the trial court
Page 407
U. S. 529
to exercise a judicial
discretion based on the circumstances, including due consideration of any
applicable formal procedural rule. It would permit, for example, a court to
attach a different weight to a situation in which the defendant knowingly fails
to object from a situation in which his attorney acquiesces in long delay
without adequately informing his client, or from a situation in which no
counsel is appointed. It would also allow a court to weigh the frequency and
force of the objections, as opposed to attaching significant weight to a purely
pro forma objection.
In ruling that a
defendant has some responsibility to assert a speedy trial claim, we do not
depart from our holdings in other cases concerning the waiver of fundamental
rights, in which we have placed the entire responsibility on the prosecution to
show that the claimed waiver was knowingly and voluntarily made. Such cases
have involved rights which must be exercised or waived at a specific time or
under clearly identifiable circumstances, such as the rights to plead not
guilty, to demand a jury trial, to exercise the privilege against self-incrimination,
and to have the assistance of counsel. We have shown above that the right to a
speedy trial is unique in its uncertainty as to when and under what
circumstances it must be asserted or may be deemed waived. But the rule we
announce today, which comports with constitutional principles, places the
primary burden on the courts and the prosecutors to assure that cases are
brought to trial. We hardly need add that, if delay is attributable to the
defendant, then his waiver may be given effect under standard waiver doctrine,
the demand rule aside.
We therefore reject both
of the inflexible approaches -- the fixed-time period because it goes further
than the Constitution requires; the demand-waiver rule because it is
insensitive to a right which we have deemed
Page 407
U. S. 530
fundamental. The
approach we accept is a balancing test, in which the conduct of both the
prosecution and the defendant are weighed. [Footnote
29]
IV
A balancing test
necessarily compels courts to approach speedy trial cases on an ad hoc
basis. We can do little more than identify some of the factors which courts
should assess in determining whether a particular defendant has been deprived
of his right. Though some might express them in different ways, we identify
four such factors: length of delay, the reason for the delay, the defendant's
assertion of his right, and prejudice to the defendant. [Footnote 30]
The length of the delay
is to some extent a triggering mechanism. Until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into the other
factors that go into the balance. Nevertheless, because of the imprecision of
the right to speedy trial, the length of delay that will provoke such an
inquiry is necessarily dependent upon the peculiar
Page 407
U. S. 531
circumstances of the
case. [Footnote 31] To take but one example,
the delay that can be tolerated for an ordinary street crime is considerably
less than for a serious, complex conspiracy charge.
Closely related to
length of delay is the reason the government assigns to justify the delay.
Here, too, different weights should be assigned to different reasons. A
deliberate attempt to delay the trial in order to hamper the defense should be
weighted heavily against the government. [Footnote
32] A more neutral reason such as negligence or overcrowded courts
should be weighted less heavily but nevertheless should be considered since the
ultimate responsibility for such circumstances must rest with the government,
rather than with the defendant. Finally, a valid reason, such as a missing
witness, should serve to justify appropriate delay.
We have already
discussed the third factor, the defendant's responsibility to assert his right.
Whether and how a defendant asserts his right is closely related to the other
factors we have mentioned. The strength of his efforts will be affected by the
length of the delay, to some extent by the reason for the delay, and most
particularly by the personal prejudice, which is not always readily
identifiable, that he experiences. The more serious the deprivation, the more
likely a defendant is to complain. The defendant's assertion of his speedy
trial right, then, is entitled to strong evidentiary weight in determining
Page 407
U. S. 532
whether the defendant is
being deprived of the right. We emphasize that failure to assert the right will
make it difficult for a defendant to prove that he was denied a speedy trial.
A fourth factor is
prejudice to the defendant. Prejudice, of course, should be assessed in the
light of the interests of defendants which the speedy trial right was designed
to protect. This Court has identified three such interests: (i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense will be impaired.
[Footnote 33] Of these, the most serious is
the last, because the inability of a defendant adequately to prepare his case
skews the fairness of the entire system. If witnesses die or disappear during a
delay, the prejudice is obvious. There is also prejudice if defense witnesses
are unable to recall accurately events of the distant past. Loss of memory,
however, is not always reflected in the record, because what has been forgotten
can rarely be shown.
We have discussed
previously the societal disadvantages of lengthy pretrial incarceration, but
obviously the disadvantages for the accused who cannot obtain his release are
even more serious. The time spent in jail awaiting trial has a detrimental
impact on the individual. It often means loss of a job; it disrupts family
life; and it enforces idleness. Most jails offer little or no recreational or
rehabilitative programs. [Footnote 34] The
time spent in
Page 407
U. S. 533
jail is simply dead
time. Moreover, if a defendant is locked up, he is hindered in his ability to
gather evidence, contact witnesses, or otherwise prepare his defense. [Footnote 35] Imposing those consequences on anyone
who has not yet been convicted is serious. It is especially unfortunate to
impose them on those persons who are ultimately found to be innocent. Finally,
even if an accused is not incarcerated prior to trial, he is still
disadvantaged by restraints on his liberty and by living under a cloud of
anxiety, suspicion, and often hostility. See cases cited in n 33, supra.
We regard none of the
four factors identified above as either a necessary or sufficient condition to
the finding of a deprivation of the right of speedy trial. Rather, they are
related factors, and must be considered together with such other circumstances
as may be relevant. In sum, these factors have no talismanic qualities; courts
must still engage in a difficult and sensitive balancing process. [Footnote 36] But, because we are dealing with a
fundamental right of the accused, this process must be carried out with full
recognition that the accused's interest in a speedy trial is specifically
affirmed in the Constitution.
V
The difficulty of the
task of balancing these factors is illustrated by this case, which we consider to
be close. It is clear that the length of delay between arrest and trial -- well
over five years -- was extraordinary. Only
Page 407
U. S. 534
seven months of that
period can be attributed to a strong excuse, the illness of the ex-sheriff who
was in charge of the investigation. Perhaps some delay would have been
permissible under ordinary circumstances so that Manning could be utilized as a
witness in Barker's trial, but more than four years was too long a period,
particularly since a good part of that period was attributable to the
Commonwealth's failure or inability to try Manning under circumstances that
comported with due process.
Two counterbalancing
factors, however, outweigh these deficiencies. The first is that prejudice was
minimal. Of course, Barker was prejudiced to some extent by living for over
four years under a cloud of suspicion and anxiety. Moreover, although he was
released on bond for most of the period, he did spend 10 months in jail before
trial. But there is no claim that any of Barker's witnesses died or otherwise
became unavailable owing to the delay. The trial transcript indicates only two
very minor lapses of memory -- one on the part of a prosecution witness --
which were in no way significant to the outcome.
More important than the
absence of serious prejudice is the fact that Barker did not want a speedy
trial. Counsel was appointed for Barker immediately after his indictment, and
represented him throughout the period. No question is raised as to the
competency of such counsel. [Footnote 37]
Despite the fact that counsel had notice of the motions for continuances, [Footnote 38] the record shows no action whatever
taken between October 21, 1958, and February 12, 1962, that could be construed
as the assertion of the speedy trial right. On the latter date, in response to
another motion for continuance, Barker moved
Page 407
U. S. 535
to dismiss the
indictment. The record does not show on what ground this motion was based,
although it is clear that no alternative motion was made for a immediate trial.
Instead, the record strongly suggests that, while he hoped to take advantage of
the delay in which he had acquiesced, and thereby obtain a dismissal of the
charges, he definitely did not want to be tried. Counsel conceded as much at oral
argument:
"Your honor, I
would concede that Willie Mae Barker probably -- I don't know this for a fact
-- probably did not want to be tried. I don't think any man wants to be tried.
And I don't consider this a liability on his behalf. I don't blame him."
Tr. of Oral Arg. 39. The
probable reason for Barker's attitude was that he was gambling on Manning's
acquittal. The evidence was not very strong against Manning, as the reversals
and hung juries suggest, and Barker undoubtedly thought that, if Manning were
acquitted, he would never be tried. Counsel also conceded this:
"Now, it's true
that the reason for this delay was the Commonwealth of Kentucky's desire to
secure the testimony of the accomplice, Silas Manning. And it's true that, if
Silas Manning were never convicted, Willie Mae Barker would never have been
convicted. We concede this."
Id. at 15. [Footnote 39]
Page 407
U. S. 536
That Barker was gambling
on Manning's acquittal is also suggested by his failure, following the pro forma
motion to dismiss filed in February, 1962, to object to the Commonwealth's next
two motions for continuances. Indeed, it was not until March, 1963, after
Manning's convictions were final, that Barker, having lost his gamble, began to
object to further continuances. At that time, the Commonwealth's excuse was the
illness of the ex-sheriff, which Barker has conceded justified the further
delay. [Footnote 40]
We do not hold that
there may never be a situation in which an indictment may be dismissed on
speedy trial grounds where the defendant has failed to object to continuances.
There may be a situation in which the defendant was represented by incompetent
counsel, was severely prejudiced, or even cases in which the continuances were
granted ex parte. But barring extraordinary circumstances, we would be
reluctant indeed to rule that a defendant was denied this constitutional right
on a record that strongly indicates, as does this one, that the defendant did
not want a speedy trial. We hold, therefore, that Barker was not deprived of
his due process right to a speedy trial.
The judgment of the
Court of Appeals is
Affirmed.
[Footnote 1]
The Sixth Amendment
provides:
"In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have
been committed, which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his defense."
[Footnote 2]
"We hold here that
the right to a speedy trial is as fundamental as any of the rights secured by
the Sixth Amendment." 386 U.S. at 386 U. S. 223.
[Footnote 3]
There is no explanation
in the record why, although Barker's initial trial was set for October 21, no
continuance was sought until October 23, two days after the trial should have
begun.
[Footnote 4]
Apparently Manning chose
not to appeal these final two convictions.
[Footnote 5]
The written motion
Barker filed alleged that he had objected to every continuance since February,
1959. The record does not reflect any objections until the motion to dismiss,
filed in February 1962, and the objection to the continuances ought by the
Commonwealth in March, 1963, and June, 1963.
[Footnote 6]
Tr of Oral Arg. 33.
[Footnote 7]
Report of the
President's Commission on Crime in the District of Columbia 256 (1966).
[Footnote 8]
In Washington, D.C. in
1968, 70.1% of the persons arrested for robbery and released prior to trial
were re-arrested while on bail. Mitchell, Bail Reform and the Constitutionality
of Pretrial Detention, 55 Va.L.Rev. 1223, 1236 (1969), citing Report of the
Judicial Council Committee to Study the Operation of the Bail Reform Act in the
District of Columbia 20-21 (1969).
[Footnote 9]
The number of these
offenses has been increasing. See Annual Report of the
Director of the Administrative Office of the United States Courts, 1971, p.
321.
[Footnote 10]
"[I]t is desirable
that punishment should follow offence as closely as possible; for its
impression upon the minds of men is weakened by distance, and, besides,
distance adds to the uncertainty of punishment, by affording new chances of
escape."
J. Bentham, The Theory
of Legislation 326 (Ogden ed.1931).
[Footnote 11]
To Establish Justice, To
Insure Domestic Tranquility, Final Report of the National Commission on the
Causes and Prevention of Violence 152 (1969).
[Footnote 12]
Testimony of James V.
Bennett, Director, Bureau of Prisons, Hearings on Federal Bail Procedures
before the Subcommittee on Constitutional Rights and the Subcommittee on
Improvements in Judicial Machinery of the Senate Committee on the Judiciary,
88th Cong., 2d Sess., 46 (1964).
[Footnote 13]
E.g., the "Tombs" riots in New York City in 1970.
N.Y. Times, Oct. 3, 1970, p. 1, col. 8.
[Footnote 14]
The Challenge of Crime
in a Free Society, A Report by the President's Commission on Law Enforcement
and Administration of Justice 131 (1967).
[Footnote 15]
"[I]n large measure
because of the many procedural safeguards provided an accused, the ordinary
procedures for criminal prosecution are designed to move at a deliberate pace.
A requirement of unreasonable speed would have a deleterious effect both upon
the rights of the accused and upon the ability of society to protect
itself."
[Footnote 16]
MR. JUSTICE WHITE noted
in his opinion for the Court in Ewell, supra, at 383 U. S. 121, that overzealous application of this remedy would
infringe "the societal interest in trying people accused of crime, rather
than granting them immunization because of legal error. . . ."
[Footnote 17]
For examples, see
American Bar Association Project on Standards for Criminal Justice, Speedy
Trial 14-16 (Approved Draft 1968); Note, The Right. to a Speedy Criminal Trial,
57 Col.L.Rev. 846, 863 (1957).
[Footnote 18]
Second Circuit Rules
Regarding Prompt Disposition of Criminal Cases (1971).
[Footnote 19]
ABA Project, supra, n 17, at 14. For an example of a proposed
statutory rule, see Note, The Lagging Right to a Speedy Trial, 51
Va.L.Rev. 1587, 1619 (1965).
[Footnote 20]
E.g., Pines v.
District Court of Woodbury County,
233 Iowa 1284, 10 N.W.2d 574 (1943). See generally Note, The Right to a
Speedy Criminal Trial, 57 Col.L.Rev. 846, 853 (1957); Note, The Lagging Right
to a Speedy Trial, 51 Va.L.Rev. 1587, 1601-1602 (1965).
[Footnote 21]
See State v.
Maldonado, 92 Ariz. 70, 373 P.2d
583 (en banc), cert. denied, 371 U.S. 928 (1962); Hicks v. People, 148 Colo. 26, 364 P.2d 877 (1961) (en banc); People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891 (1955); Zehrlaut v. State, 230 Ind. 175, 102 N.E.2d 203 (1951); Flanary v. Commonwealth, 184 Va. 204, 35 S.E.2d 135 (1945); Ex parte Chalfant, 81 W.Va. 93, 93 S.E. 1032 (1917); State v. Hess, 180 Kan. 472, 304 P.2d
474 (1956); State v. Dodson, 226 Ore. 458, 360 P.2d 782 (1961). But see State v. Vawter, 236 Ore. 85, 386 P.2d 915 (1963).
[Footnote 22]
See United States
v. Hill, 310 F.2d 601 (CA4
1962); Bruce v. United
States, 351 F.2d 318 (CA5
1965), cert. denied, 384 U.S. 921 (1966); United States v. Perez, 398 F.2d 658 (CA7 1968), cert. denied,
393 U.S. 1080 (1969); Pietch v. United
States, 110 F.2d 817 (CA. 10), cert. denied,
310 U.S. 648 (1940); Smith v. United
States, 118 U.S.App.D.C. 38,
331 F.2d 784 (1964) (en banc). The opinion below in this case demonstrates that
the Sixth Circuit takes a similar approach.
As an indication of the
importance which these courts have attached to the demand rule, see Perez, supra, in which the court held that a defendant waived any speedy trial claim,
because he knew of an indictment and made no demand for an immediate trial,
even though the record gave no indication that he was represented by counsel at
the time when he should have made his demand, and even though he was not
informed by the court or the prosecution of his right to a speedy trial.
[Footnote 23]
Although stating that
they recognize a demand rule, the approach of the Eighth and Ninth Circuits
seems to be that a denial of speedy trial can be found despite an absence of a
demand under some circumstances. See Bandy v. United States, 408
F.2d 518 (CA8 1969) (a purposeful or oppressive delay may overcome a failure to
demand); Moser v. United
States, 381 F.2d 363 (CA9 1967)
(despite a failure to demand, the court balanced other considerations).
The Second Circuit's
approach is unclear. There are cases in which a failure to demand is strictly
construed as a waiver. E.g.,
United States v. DeMasi, 445 F.2d 251
(1971). In other cases, the court has seemed to be willing to consider claims
in which there was no demand. E.g., United States ex rel. Solomon v. Mancusi, 412 F.2d 88, cert. denied, 396 U.S. 936 (1969).
Certainly the District Courts in the Second Circuit have not regarded the
demand rule as being rigid. See
United States v. Mann, 291 F.Supp.
268 (SDNY 1968); United States v.
Dillon, 183 F.Supp. 541 (SDNY
1960).
The First Circuit also
seems to reject the more rigid approach. Compare United States v. Butler,
426 F.2d 1275 (1970), with Needel v.
Scafati, 412 F.2d 761, cert. denied,
396 U.S. 861 (1969).
[Footnote 24]
See n 2, supra.
[Footnote 25]
If a defendant
deliberately bypasses state procedure for some strategic, tactical, or other
reason, a federal judge on habeas corpus may deny relief if he finds that the
bypassing was the considered choice of the petitioner. The demand doctrine
presupposes that failure to demand trial is a deliberate choice for supposed
advantage on the assumption that delay always benefits the accused, but the
delay does not inherently benefit the accused any more than it does the state.
Consequently, a man should not be presumed to have exercised a deliberate
choice because of silence or inaction that could equally mean that he is
unaware of the necessity for a demand.
Note, The Lagging Right
to a Speedy Trial, 51 Va.L.Rev. 1587, 1610 (1965) (footnotes omitted).
[Footnote 26]
As MR. CHIEF JUSTICE
BURGER wrote for the Court in Dickey v. Florida:
"Although a great
many accused persons seek to put off the confrontation as long as possible, the
right to a prompt inquiry into criminal charges is fundamental, and the duty of
the charging authority is to provide a prompt trial."
[Footnote 27]
As a circuit judge, MR.
JUSTICE BLACKMUN wrote:
"The government
and, for that matter, the trial court are not without responsibility for the
expeditious trial of criminal cases. The burden for trial promptness is not
solely upon the defense. The right to 'a speedy . . . trial' is
constitutionally guaranteed, and, as such, is not to be honored only for the
vigilant and the knowledgeable."
Hodges v. United
States, 408 F.2d 543, 551 (CA8
1969).
[Footnote 28]
The American Bar
Association also rejects the rigid demand waiver rule:
"One reason for
this position is that there are a number of situations, such as where the
defendant is unaware of the charge or where the defendant is without counsel,
in which it is unfair to require a demand. . . . Jurisdictions with a demand.
Requirement are faced with the continuing problem of defining exceptions, a
process which has not always been carried out with uniformity. . . . More
important, the demand requirement is inconsistent with the public interest in
prompt disposition of criminal cases. . . . [T]he trial of a criminal case
should not be unreasonably delayed merely because the defendant does not think
that it is in his best interest to seek prompt disposition of the charge."
ABA Project, supra, n 17, at 17.
[Footnote 29]
Nothing we have said
should be interpreted as disapproving a presumptive rule adopted by a court in
the exercise of its supervisory powers which establishes a fixed time period
within which cases must normally be brought. See n 18, supra.
[Footnote 30]
See, e.g., United
States v. Simmons, 338 F.2d 804, 807 (CA2
1964), cert. denied, 380 U.S. 983 (1965); Note, The Right to a Speedy
Trial, 20 Stan.L.Rev. 476, 478 n. 15 (1968).
In his concurring
opinion in Dickey, MR. JUSTICE BRENNAN identified three factors for
consideration: the source of the delay, the reasons for it, and whether the
delay prejudiced the interests protected by the right. 398 U.S. at 398 U. S. 48. He included consideration of the defendant's failure
to assert his right in the cause-of-delay category, and he thought the length
of delay was relevant primarily to the reasons for delay and its prejudicial
effects. Id. n. 12. In essence, however, there is little
difference between his approach and the one we adopt today. See also
Note, The Right to a Speedy Trial, supra, for another slightly
different approach.
[Footnote 31]
For example, the First
Circuit thought a delay of nine months overly long, absent a good reason, in a
case that depended on eyewitness testimony. United States v. Butler, 426 F.2d 1275, 1277 (1970).
[Footnote 32]
We have indicated on
previous occasions that it is improper for the prosecution intentionally to
delay "to gain some tactical advantage over [defendants] or to harass
them." United States v.
Marion, 404 U. S. 307, 404 U. S. 325 (1971). See Pollard v. United States, 352 U. S. 354, 352 U. S. 361 (1957).
[Footnote 33]
United States v.
Powell, 383 U.S. at 383 U. S. 120; Smith
v. Hooey, 393 U. S. 374, 393 U. S. 377-378 (1969). In Klopfer v. North Carolina, 386 U. S. 213, 386 U. S. 221-222 (1967), we indicated that a defendant awaiting
trial on bond might be subjected to public scorn, deprived of employment, and
chilled in the exercise of his right to speak for, associate with, and
participate in unpopular political causes.
[Footnote 34]
See To Establish Justice, To Insure Domestic Tranquility,
Final Report of the National Commission on the Causes and Prevention of
Violence 152 (1969).
[Footnote 35]
There is statistical
evidence that persons who are detained between arrest and trial are more likely
to receive prison sentences than those who obtain pretrial release, although
other factors bear upon this correlation. See
Wald, Pretrial Detention and Ultimate Freedom: A Statistical Study, 39
N.Y.U.L.Rev. 631 (1964).
[Footnote 36]
For an example of how
the speedy trial issue should be approached, see
Judge Frankel's excellent opinion in United States v. Mann, 291 F.Supp.
268 (SDNY 1968).
[Footnote 37]
Tr. of Oral Arg. 39.
[Footnote 38]
Id. at 4.
[Footnote 39]
Hindsight is, of course,
20/20, but we cannot help noting that, if Barker had moved immediately and
persistently for a speedy trial following indictment, and if he had been
successful, he would have undoubtedly been acquitted, since Manning's testimony
was crucial to the Commonwealth's case. It could not have been anticipated at
the outset, however, that Manning would have been tried six times over a
four-year period. Thus, the decision to gamble on Manning's acquittal may have
been a prudent choice at the time it was made.
[Footnote 40]
At oral argument,
counsel for Barker stated:
"That was after the
sheriff, the material witness, was ill; the man who had arrested the
petitioner, yes. And the Sixth Circuit held that this was a sufficient reason
for delay, and we don't deny this. We concede that this was sufficient for the
delay from March, 1963, to October, but it does not explain the delays prior to
that."
Tr. of Oral Arg. 120.
MR. JUSTICE WHITE, with
whom MR. JUSTICE BRENNAN joins, concurring.
Although the Court
rejects petitioner's speedy trial claim and arms denial of his petition for
habeas corpus,
Page 407
U. S. 537
it is apparent that had
Barker not so clearly acquiesced in the major delays involved in this case, the
result would have been otherwise. From the Commonwealth's point of view, it is
fortunate that the case was set for early trial and that postponements took
place only upon formal requests to which Barker had opportunity to object.
Because the Court
broadly assays the factors going into constitutional judgments under the speedy
trial provision, it is appropriate to emphasize that one of the major purposes
of the provision is to guard against inordinate delay between public charge and
trial, which, wholly aside from possible prejudice to a defense on the merits,
may
"seriously
interfere with the defendant's liberty, whether he is free on bail or not, and
that may disrupt his employment, drain his financial resources, curtail his
associations, subject him to public obloquy, and create anxiety in him, his
family and his friends."
United States v.
Marion, 404 U. S. 307, 404 U. S. 320 (1971). These factors are more serious for some than
for others, but they are inevitably present in every case to some extent, for
every defendant will either be incarcerated pending trial or on bail subject to
substantial restrictions on his liberty. It is also true that many defendants
will believe that time is on their side, and will prefer to suffer whatever
disadvantages delay may entail. But, for those who desire an early trial, these
personal factors should prevail if the only countervailing considerations
offered by the State are those connected with crowded dockets and prosecutorial
case loads. A defendant desiring a speedy trial, therefore, should have it
within some reasonable time; and only special circumstances presenting a more
pressing public need with respect to the case itself should suffice to justify
delay. Only if such special considerations are in the case, and if they
outweigh the inevitable personal prejudice resulting from delay, would
Page 407
U. S. 538
it be necessary to
consider whether there has been or would be prejudice to the defense at trial.
"[T]he major evils
protected against by the speedy trial guarantee exist quite apart from actual
or possible prejudice to an accused's defense."
Of course, cases will
differ among themselves as to the allowable time between charge and trial so as
to permit prosecution and defense adequately to prepare their case. But
unreasonable delay in run-of-the-mill criminal cases cannot be justified by
simply asserting that the public resources provided by the State's criminal
justice system are limited, and that each case must await its turn. As the
Court points out, this approach also subverts the State's own goals in seeking
to enforce its criminal laws.
