Sixth Amendment
Speedy and Public Trial
United States v. Marion (1971)
404 U.S. 307 (1971)
Vote: 7-0
Decision: Reversed
Plurality: White, joined by Burger, Stewart, and Blackmun
Concurrence: Douglas, joined by Brennan and Marshall
MR. JUSTICE WHITE delivered the opinion of the Court.
This appeal requires us to decide whether dismissal of a federal indictment was constitutionally required by reason of a period of three years between the occurrence of the alleged criminal acts and the filing of the indictment.
On April 21, 1970, the two appellees were indicted and charged in 19 counts with operating a business known as Allied Enterprises, Inc. … the business was fraudulently conducted and involved misrepresentations, alterations of documents, and deliberate nonperformance of contracts. The period covered by the indictment was March 15, 1965, to February 6, 1967; the earliest specific act alleged occurred on September 3, 1965, the latest on January 19, 1966.
On May 5, 1970, appellees filed a motion to dismiss the indictment “for failure to commence prosecution of the alleged offenses charged therein within such time as to afford [them their] rights to due process of law and to a speedy trial. … ”
. … Allied Enterprises had been subject to a Federal Trade Commission cease and desist order on February 6, 1967, and that a series of articles appeared in the Washington Post in October, 1967, reporting the … practices employed by home improvement firms such as Allied. The articles also contained purported statements of the then United States Attorney for the District of Columbia … predicting that indictments would soon be forthcoming … the United States Attorney did not mention Allied specifically, that company was mentioned in the course of the newspaper stories. In the summer of 1968, at the request of the United States Attorney’s office, Allied delivered certain of its records to that office, and, in an interview there, appellee Marion discussed his conduct as an officer of Allied Enterprises. The grand jury that indicted appellees was not impaneled until September, 1969, appellees were not informed of the grand jury’s concern with them until March, 1970, and the indictment was finally handed down in April.
Appellees moved to dismiss because the indictment was returned “an unreasonably oppressive and unjustifiable time after the alleged offenses.” They argued that the indictment required memory of many specific acts and conversations occurring several years before, and they contended that the delay was due to the negligence or indifference of the United States Attorney in investigating the case and presenting it to a grand jury. … The District Court judge dismissed the indictment for “lack of speedy prosecution” at the conclusion of the hearing. …
The United States appealed directly to this Court pursuant. … We now … reverse the judgment of the District Court.
. … Appellees … claim that their rights to a speedy trial were violated by the period of approximately three years between the end of the criminal scheme charged and the return of the indictment; it is argued that this delay is so substantial and inherently prejudicial that the Sixth Amendment required the dismissal of the indictment. In our view, however, the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an “accused,” an event that occurred in this case only when the appellees were indicted on April 21, 1970.
The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. … ” On its face, the protection of the Amendment is activated only when a criminal prosecution has begun, and extends only to those persons who have been “accused” in the course of that prosecution. … The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him. “[T]he essential ingredient is orderly expedition, and not mere speed.” Smith v. United States, (1959). … The framers could hardly have selected less appropriate language if they had intended the speedy trial provision to protect against pre-accusation delay. …
Legislative effort to implement federal and State speedy trial provisions also plainly reveal the view that the guarantees are applicable only after a person has been accused of a crime. The Court has pointed out that “. … [T]he mere failure to find an indictment will not operate to discharge the accused from the offense. … ” United States v. Cadarr, (1905).
Since it is “doubtless true that in some cases the power of the Government has been abused and charges have been kept hanging over the heads of citizens” the Court noted that many States. … had passed statutes limiting the time within which such trial must occur after charge or indictment. Characteristically, these statutes to which the Court referred are triggered only when a citizen is charged or accused … “[i]n no event … [does] the right to speedy trial arise before there is some charge or arrest, even though the prosecuting authorities had knowledge of the offense long before this.”. …
Appellees’ position is, therefore, at odds with longstanding legislative and judicial constructions of the speedy trial provisions in both national and state constitutions.
It is apparent also that very little support for appellees’ position emerges from a consideration of the purposes of the Sixth Amendment’s speedy trial provision, a guarantee that this Court has termed
“an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, (1966). …
Inordinate delay between arrest, indictment, and trial may impair a defendant’s ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense. … Arrest is a public act that 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. So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment. Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge. But we decline to extend the reach of the amendment to the period prior to arrest. Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer. Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself. But this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government’s case.
The law has provided other mechanisms to guard against … actual prejudice resulting from the passage of time between crime and arrest or charge. As we said in United States v. Ewell [(1966)] … “the applicable statute of limitations … is … the primary guarantee against bringing overly stale criminal charges.” Such statutes represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice. … There is thus no need to press the Sixth Amendment into service to guard against the mere possibility that pre-accusation delays will prejudice the defense in a criminal case since statutes of limitation already perform that function.
Since appellees rely only on potential prejudice and the passage of time between the alleged crime and the indictment … we perhaps need go no further to dispose of this case, for the indictment was the first official act designating appellees as accused individuals, and that event occurred within the statute of limitations. Nevertheless, since a criminal trial is the likely consequence of our judgment and since appellees may claim actual prejudice to their defense, it is appropriate to note here that the statute of limitations does not fully define the appellees’ rights with respect to the events occurring prior to indictment. …
However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay caused detriment to a defendant’s case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. It would be unwise at this juncture to attempt to forecast our decision in such cases.
. … The 38-month delay between the end of the scheme charged in the indictment and the date the defendants were indicted did not extend beyond the period of the applicable statute of limitations here. … No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them. …
Events of the trial may demonstrate actual prejudice, but at the present time appellees’ due process claims are speculative and premature.
Reversed.
Barker v. Wingo (1972)
407 U.S. 514 (1972)
Vote: 9-0
Decision: Affirmed
Majority: Blackmun, Brennan, Burger, Blackmun, Douglas, Marshall, Powell, Rehnquist, and Stewart
Concurrence: White, joined by Brennan
MR. JUSTICE POWELL delivered the opinion of the Court.
Although a speedy trial is guaranteed the accused by the Sixth Amendment to the Constitution, this Court has dealt with that right on infrequent occasions. The Court’s opinion in Klopfer v. North Carolina (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. As MR. JUSTICE BRENNAN pointed out in his concurring opinion in Dickey [v. Florida (1970)], in none of these cases have we attempted to set out the criteria by which the speedy trial right is to be judged. This case compels us to make such an attempt.
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 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. 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. … Finally, after five trials, Manning was convicted. …
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 as 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. … Barker made no objection, through his counsel, to the first 11 continuances.
When … 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. … To this continuance, Barker objected unsuccessfully.
… [T]he 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. The motion was denied; the trial commenced with Manning as 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. 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 … 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. 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 that the motion was filed in February, 1962. The Commonwealth so conceded at oral argument before this Court. 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. … We granted Barker’s petition for certiorari.
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. In addition, persons released on bond for lengthy periods awaiting trial have an opportunity to commit other crimes. 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 viciousand 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. Finally, delay between arrest and punishment may have a detrimental effect on rehabilitation.
. …
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. … And it is the prosecution which carries the burden of proof. Thus … 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. … Thus, as we recognized in Beavers v. Haubert, [(1907)], 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. …
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 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. …
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 find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months. …
The second suggested alternative would restrict consideration 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[.]”. … It is not clear, however, precisely what is meant by that term. … 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. … This essentially was the approach the Sixth Circuit took below.
Such an approach, by presuming waiver of a fundamental right 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 (1938). Courts should “indulge every reasonable presumption against waiver,” Aetna Ins. Co. v. Kennedy (1937). … In Carnley v. Cochran (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.”
. …
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. … There are cases in which delay appreciably harms the defendant’s ability to defend himself.
. …
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; the State has that duty as well as the duty of insuring that the trial is consistent with due process. …
. … Since, under the demand-waiver rule, no time 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 been made. … 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. 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 … allows the trial court to exercise a judicial discretion based on the circumstances, including due consideration of any applicable formal procedural rule. … It would also allow a court to weigh the frequency and force of the objections. …
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. … 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 … places the primary burden on the courts and the prosecutors to assure that cases are brought to trial. …
. … The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.
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. … [W]e identify four such factors: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
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 circumstances of the case. …
Closely related to length of delay is the reason the government assigns to justify the delay. … A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. 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. … 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. … 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. 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. …
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. …
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. … 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.
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. … 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. …
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. … But there is no claim that any of Barker’s witnesses died or otherwise became unavailable owing to the delay. …
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. … Despite the fact that counsel had notice of the motions for continuances, 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. … 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. …
. …
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 … 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. 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.
