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Criminal Procedure: Adjudication
University of Iowa School of Law
Tomkovicz, James Joseph "Jim"

Criminal Procedure: Adjudication

Tomkovicz

Spring 2018

Chapter 3 – Right to a Speedy Trial

Attachment of the Right to a Speedy Trial

The right to a speedy trial “attaches” only when a person is arrested or formally charged by indictment or otherwise. Until a person becomes an “accused” in one of these ways the right has no application. (US v. Marion)

When the government, in good faith, formally drops (dismisses) charges the speedy trial guarantee has no application. (US v .MacDonald)

When a court dismisses a charge on motion of a defendant, over the objection of the prosecution, and the defendant is free of all restrictions on liberty and the charges are then reinstated on appeal by the prosecution, the time between dismissal and reinstatement does not count for speedy trial purposes. (US v. Loud Hawk)

The prosecution cannot dismiss an indictment in bad faith to stop the Constitutional clock (US v .MacDonald)

It is unclear whether the speedy trial right attaches when a grand jury hands down an indictment but it is “sealed”—i.e., remains secret / is not made public.

It is almost certain that the speedy trial right attaches only for crimes that are the bases of arrests/formal charges and those crimes that qualify as the “same offence” for double jeopardy purposes, but not for any other crimes that occur during the same episode.

A charge by one sovereign does not result in attachment of the speedy trial right for the same crime charged by a separate / different sovereign.

The right to a speedy trial “detaches” upon conviction. Consequently, a convicted person does not have a 6th Amendment right to be sentenced speedily. Statutes, rules, and the Due Process Clause provide protection against delays in sentencing. (Betterman v. Montana)

Due Process Preindictment Delay Doctrine

The Due Process Clauses of the 5th and 14th Amendments guarantee that “no person shall be deprived of life, liberty, or property without due process of law.” This guarantee can be violated by delay in charging a person with a crime.

A due process violation requires: (a) sufficient DELAY in charging the accused; (b) for a REASON that violates due process and (c) Actual PREJUDICE to the defense. (US v. Lovasco)

REASONS: Good faith investigative delay does not violate due process. Intentional delay to gain tactical advantage over the defendant (and perhaps to harass the defendant) does violate due process. It is unclear if there are other reasons that violate due process. (Lovasco)

Actual prejudice to the conduct of the defense is “generally …necessary”for a due process violation and the prejudice may have to be “substantial.” (Lovasco; Marion)

The Content of the Right to a Speedy Trial

The right to a speedy trial is the right to be brought to trial speedily after one has been accused.
To determine whether an accused has been denied a speedy trial, four relevant factors must be “balanced”: (a) the LENGTH of the delay; (b) the REASON(S) for the delay(s); (c) defendant’s ASSERTIONS of the right to a speedy trial; and (d) PREJUDICE to the defendant. (Barker v. Wingo)

Delay of a certain length — probably approaching one year (see Doggett v. US) — is necessary to “trigger” speedy trial analysis. Once that trigger is satisfied, no one factor is either necessary for or sufficient for a finding of deprivation of the right to a speedy trial. (Barker v. Wingo)

For speedy trial purposes, all three types of prejudice count — i.e.,liberty losses, anxiety and concern, and harm to the defense. (Barker v. Wingo)

Although the “major evils” against which the speedy trial right protects a defendant are liberty losses and anxiety and concern, (US v. Marion), the “most serious” type of prejudice for balancing purposes is harm to the defense. (Barker v. Wingo)

Once the right has attached by arrest or formal charge, a defendant can be denied a speedy trial even though he suffers neither of the two major evils—liberty loss or anxiety and concern. Moreover, in the balance of interests, “presumptive prejudice” to the defense that increases over time must be counted. (Doggett v. US)

The only remedy for a speedy trial violation is the “unsatisfactorily severe” remedy of “dismissal” of the charges–i.e., a bar to prosecution (Barker v. Wingo)

Delay attributable to the actions of appointed counsel is generally charged to the defendant in the speedy trial balance, but delay due to breakdown of the public defender system or a judge’s failure to quickly appoint counsel can count against the government. (Vermont v. Brillon)

Chapter 4 – Right to a Public Trial, Right of Access, and Prejudicial Publicity

The 6th Amendment Right to a Public Trial

The SIXTH AMENDMENT provides the ACCUSED with the right to a PUBLIC TRIAL.

The right promotes a FAIR TRIAL by ensuring that the judge and prosecutor carry out their duties responsibly, encouraging witnesses to come forward, and discouraging perjury. (Waller v. Georgia)

The 6A right extends to pretrial hearings on motions to suppress evidence. (Waller). It also extends to the voir dire of jurors. (Presley v. Georgia)

The right to a public/open trial/proceeding is not absolute. Proceedings may be closed, but the circumstances justifying closure are “rare.”

The governing standard for whether closure is constitutional is the following: “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” (Waller)

A judge must consider and employ reasonable alternatives to closure and must consider such alternatives even if they are not proposed or suggested by the parties. (Presley v. Georgia)

A defendant’s interest in a fair trial qualifies as an overriding interest and higher value, BUT if the defendant has made an informed choice of an open proceeding (i.e., objects to closure) then his or her interest in avoiding risks to the fairness of the trial “is largely absent.” (Waller)

f” properly. (Allen)

“Binding and gagging” is sometimes a constitutional means of controlling an accused’s misconduct. Although, the Court called this option “a last resort,” it also said that “in some situations,” binding and gagging a defendant “might possibly be the fairest and most reasonable” option. (Allen)

A third option, which “should be borne in mind by a judge” as a means of controlling an accused’s misconduct is citing or threatening to cite a defendant for criminal contempt or imprisoning a defendant for civil contempt. (Allen)

Unless it is evident that contempt will not work, a judge may be required to try that option before removing or binding and gagging an accused. (Allen)

If a defendant is voluntarily absent while a trial is in progress, it does not violate the Sixth Amendment right to be present to continue the trial in his absence. (Taylor v. US)

When a defendant is voluntarily absent before trial begins, it is uncertain whether the 6A allows a judge to begin and conduct the trial in his absence. (Crosby v. US)

The Sixth Amendment confrontation right is violated by placing a physical screen between the accused and a witness when the use of the screen is based on a legislative presumption that a witness will be harmed. (Coy v. Iowa)

If there an exception to the Confrontation Clause that permits use of a screen, it would require a showing of trauma to the particular witness.
Even if use of such a screen could be consistent with the 6A, such a procedure might be “inherently prejudicial” in violation of the right to due process. (Coy)

The 6A Confrontation Clause entitles an accused to have witnesses testify in his or her presence. However, upon “an adequate showing of necessity, the interest in protecting child witnesses from the trauma of testifying in a child abuse case” can “justify the use of a special [one way closed circuit TV]procedure that permits a child witness to testify” outside the trial, i.e., without “face-to-face confrontation with the defendant.” (Maryland v. Craig)

“The requisite finding of necessity must be case-specific.”
The trauma must not be caused “by the courtroom generally, but by the presence of the defendant.”
“[T]he emotional distress” must be more than de minimis, i.e., more than ‘mere nervousness or excitement or some reluctance to testify.’”

The minimum showing of trauma required is uncertain, and it might be necessary that the trauma “would impair the child’s ability to communicate.” (Craig)