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48 Fordham L. Rev. 611 (1979-1980)
Speedy Trial Rights in Application

handle is hein.journals/flr48 and id is 625 raw text is: SPEEDY TRIAL RIGHTS IN APPLICATION GREGORY P.N. JOSEPH* INTRODUCTION E xtended pretrial delay in criminal litigation,' although frequently claimed by defendants to be a deprivation of a fundamental right, is seldom held to violate speedy trial protection and, even when so held, only rarely determines the outcome of a case. This fact may seem curious in view of the nature, and seeming pervasiveness, of the speedy trial guarantee:2 a multiplicity of constitutional, legislative, and judicial sources can support a defendant's claim to a speedy trial,3 and virtually all of these mandate the dismissal with prejudice of pending * B.A. 1972, J.D. 1975, University of Minnesota. Mr. Joseph is associated with the firm of Fried, Frank, Harris, Shriver & Jacobson, New York City. 1. The phrase pretrial delay is used, in its constitutional sense, to refer to the time period commencing at the instant that the putative defendant in some way becomes an 'accused.' United States v. Marion, 404 U.S. 307, 313 (1971) (construing U.S. Const. amend. VI), through either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge, id. at 320, and concluding upon his trial on those charges of which he stands accused. Following Marion, most state courts considering the issue have construed the speedy trial rights conferred by their respective state constitutions as attaching at precisely the same instant. Yarbor v. State, 546 P.2d 564 (Alaska 1976); State v. Lee, 110 Ariz. 357, 519 P.2d 56 (1974); People v. Sobiek, 30 Cal. App. 3d 458, 106 Cal. Rptr. 519, cert. denied, 414 U.S. 855 (1973); People ex rel. Coca v. District Court, 187 Colo. 280, 530 P.2d 958 (1975); State v. Bryson, 53 Hawaii 652, 500 P.2d 1171 (1972); Burress v. State, - Ind. App. -, 363 N.E.2d 1036 (Ct. App. 1977); State v. Fraise, 350 So. 2d 154 (La. 1977); State v. Bessey, 328 A.2d 807 (Me. 1974); Commonwealth v. Gove, 366 Mass. 351, 320 N.E.2d 900 (1974); People v. ,Williams, 66 Mich. App. 521, 239 N.W.2d 653 (1976); State v. Odzark, 532 S.W.2d 45 (Mo. App. 1976); People v. White, 32 N.Y.2d 393, 298 N.E.2d 659, 345 N.Y.S.2d 513 (1973); State v. Cross, 48 Ohio App. 2d 357, 357 N.E.2d 1103 (1975); State v. Edens, 565 P.2d 51 (Okla. Crim. App. 1977); State v. Serrell, 265 Or. 216, 507 P.2d 1405 (1973). What constitutes such accusation is procedurally determined. Although the Supreme Court has stated that pretrial delay commences upon an indictment or information, or upon arrest, United States v. Marion, 404 U.S. at 320; see Northern v. United States, 455 F.2d 427 (9th Cir. 1972), at least one court has considered that the period begins upon the mere filing of a criminal complaint, People v. Hannon, 19 Cal. 3d 588, 564 P.2d 1203, 138 Cal. Rptr. 885 (1977). The terminus of pretrial delay, trial, may refer not merely to the commencement of a trial, but to conclusion and entry of judgment of acquittal or a valid conviction. See notes 204-05 infra. Where a second trial is necessary for any reason, conclusion of the first does not, by definition, terminate pretrial delay. See notes 137-39 infra and accompanying text. 2. In view of the multiplicity of constitutional, statutory, and rule provisions conferring speedy trial protection on accused persons, this Article adopts the phrase speedy trial guarantee as a comprehensive, generic reference to all such protection. The phrase speedy trial right, in contrast, is used to refer to specific constitutional, statutory, or rule provisions. Further, constitutional speedy trial rights-those specified in state or federal constitutions-will be distinguished from extraconstitutional speedy trial rights--those specified in statutes and rules-for similar purposes of analytical provisions. 3. See pt. I(A) infra.

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