The recent COVID-19 outbreak has brought new attention to the criminal defendant’s right to a speedy trial. The following explains what the right to a speedy trial means, the typical remedies for a violation, and how COVID-19 has changed the usual analysis.
What is a “Speedy Trial?”
The right to a speedy and public trial is enshrined in the Sixth Amendment to the United States Constitution and Article II, Section 16 of the Colorado Constitution.
The right to a speedy trial is also found in § 18-1-405, C.R.S. and Colorado Rule of Criminal Procedure 48(b). This statute and rule more clearly define what a “speedy” trial means in Colorado.
Under the statute and rule, a criminal defendant is entitled to be brought to trial within six months of entering a “not guilty” plea in a county or district court. Municipal courts typically use a 90-day speedy trial period. The court and prosecution must avoid useless and unnecessary delays in bringing a case to trial.[1] Issues like a busy or overcrowded docket do not necessarily excuse the failure to try a case by the deadline.
What Happens When Speedy Is Violated?
The remedy for a speedy trial violation is dismissal with prejudice, meaning the charges cannot be refiled based on the same allegations. There are two types of violations: constitutional and statutory. While violations are rare, it is important to know your rights and the potential remedy.
Constitutional Violations
To determine whether there has been a constitutional violation, the court typically weighs the length of the delay, the reason for the delay, the hardship to the defendant due to the delay, and whether the defendant has demanded his or her right to a speedy trial.
Unlike a statutory violation, discussed below, a constitutional violation has no objective measure, and instead the court must weigh the interests listed above and decide whether the delay was reasonable.
Statutory Violations
A violation under the statute and rule depends solely on whether the six-month period has run out; however, there are many ways for that period to be reset, extended, or “paused.”
To be entitled to a dismissal once the six-month period runs out, the defendant must move for dismissal before pleading guilty or beginning a trial. Failure to do so is a waiver of the right to speedy trial.[2] Accepting a trial date outside the six-month window constitutes a waiver and will extend the deadline at least to that trial date.[3]
What is a Waiver of Speedy?
Six months is not always enough time to bring a case to trial, especially when the defense requires extensive investigation, preparation, and litigation. Continuing (or rescheduling) the trial, even beyond the six-month boundary, can be beneficial.
When the defense requests a continuance, that constitutes a waiver of the right to a speedy trial, re-setting the six-month clock as of the date of the waiver. This can be beneficial if the defense needs more time to (1) investigate or prepare for trial; or (2) negotiate a plea offer with the prosecution.
Failure to appear for a jury trial also constitutes a waiver of speedy trial, resetting the full six-month period. That new six-month period will not begin until you appear in front of the court.[4] This only applies to the trial date itself- failing to appear for a pre-trial court date does not automatically constitute a waiver of speedy (although it may result in a tolling – explained below – depending on the circumstances).
A continuance requested by the prosecution does not reset the speedy trial window; the prosecution must still bring the case to trial within the original six-month period. If the defendant expressly agrees, however, the speedy trial period will be extended by the number of days between the granting of the continuance and the new trial date.[5] This is often referred to as “tolling speedy,” explained in more detail below.
When the defense objects to a prosecutor’s requested continuance, the court can still extend the speedy-trial window up to an additional six months, if:
- There is material evidence that is unavailable, the state has used due diligence to obtain it, and there is a reasonable belief that it will become available; or
- In a felony case, the state requires additional time to prepare based on exceptional circumstances.
Finally, in the case of a mistrial, the court can extend speedy trial up to three months for each mistrial.
Example
A case is set for trial on April 20, and the original six-month speedy trial window expires on April 25. On April 10, the prosecution moves for a continuance and the defendant agrees. The trial is reset until April 30.
This would appear to violate the defendant’s right to a speedy trial, because the trial was set after April 25. But the defendant agreed to the continuance, so the deadline is extended. Because there are 20 days between when the continuance was granted (April 10) and the new trial date (April 30), 20 days are added on to the speedy trial deadline. The new speedy trial deadline is May 15, so the new trial date of April 30 is within the new deadline.
What Does it Mean to “Toll” the Speedy Trial Period?
There are many ways for the speedy trial period to either reset completely, or to simply toll (pause). These can include failing to appear for trial or leaving the State. The parties can also agree to toll the speedy trial period between one court date and another; this often happens during the negotiations process. The most common circumstance is the one laid out above, when the defense agrees to a prosecutor’s requested continuance past the original deadline and agrees to toll speedy for the necessary number of days.
Another way to think about tolling is simply adding a specific amount of days to the deadline, rather than pausing the six-month “clock.”
There are several other things that toll the speedy trial period, including any time the defendant is incompetent to stand trial or unable to appear due to illness or physical disability. In general, any delay caused at the insistence of the defendant is also tolled.
There have been recent, unsuccessful efforts to add ways to toll, including a 2018 senate proposal to allow a tolling of speedy when the court orders a continuance it deems necessary to protect the defendant’s constitutional rights.[6]
COVID-19 and the Public Health Crisis Exception
Amidst the COVID-19 pandemic, the Colorado Supreme Court has amended the Rules of Criminal Procedure and issued recent case law regarding how the pandemic impacts the right to a speedy trial. Given the obvious difficulties in bringing a jury pool into the courthouse while maintaining appropriate distancing, courts are looking to either hold virtual trials, or extend deadlines so that trials can be resumed when the pandemic lifts.
A recent rule change allows a court to declare a mistrial on the grounds that a fair jury pool cannot be safely assembled due to a public health crisis.[7] Declaring such a mistrial would allow a court to extend the speedy trial deadline by three months, as discussed above. A similar provision was then added to the same rule for municipal courts.[8]
On June 29, 2020, the Colorado Supreme Court found that, even when the defense objects, the court can grant the prosecution a continuance with a tolling of the speedy trial period for up to six months if the prosecution establishes that:
- (a) as a result of a public health crisis, evidence material to its case is unavailable;
- (b) it has exercised due diligence to obtain that evidence; and
- (c) there are reasonable grounds to believe that the unavailable evidence will be available on the new trial date.
The prosecution must establish each of the above conditions, and the trial court must make specific factual findings on the record to support each one.[9]
Conclusion
Whether to waive the right to speedy trial or to assert a violation is a complicated question that depends on the individual circumstances in a particular case; in many cases, a waiver can be beneficial. Factors to consider include: the amount of time left in the speedy trial period, whether the defense intends to go to trial or to take a plea offer, whether the defendant is in custody or on bond, and the chances of the court finding a waiver or tolling of speedy. Any person facing criminal charges should discuss these factors, and any other relevant circumstances, with his/her/their attorney prior to waiving the right to speedy trial.
Author: Charles J. Testa
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[1] People v. Murphy, 515 P.2d 107 (Colo. 1973)
[2] C.R.S. § 18-1-405(5)
[3] C.R.S. § 18-1-405(5.1)
[4] C.R.S. § 18-1-405(3.5)
[5] C.R.S. § 18-1-405(4)
[6] https://leg.colorado.gov/bills/sb18-258
[7] Colo. R. Crim. P. 24(c)(4).
[8] Colo. R. Muni. P. 224(b)(2).
[9] In re Lucy & Meresa, 2020 CO 68 (June 29, 2020).