About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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
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.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most