Speedy Trial Act of 1974
- Title I of the Speedy Trial Act of 1974, 88 Stat. 2080, as
amended August 2, 1979, 93 Stat. 328, is set forth in 18 U.S.C.
3161-3174. The Act establishes time limits for completing the various
a federal criminal prosecution. The information or indictment must be filed
within 30 days from the date of arrest or service of the summons. 18 U.S.C.
§ 3161(b). Trial must commence within 70 days from the date the
or indictment was filed, or from the date the defendant appears before an
of the court in which the charge is pending, whichever is later. 18 U.S.C.
- Moreover, in order to ensure that defendants are not rushed to
without an adequate opportunity to prepare, Congress amended the Act in 1979
provide a minimum time period during which trial may not commence. Speedy
Act Amendments of 1979, Pub. L. No. 96-43, Section 3, 93 Stat. 327. Thus,
Act provides that trial may not begin less than 30 days from the date the
defendant first appears in court, unless the defendant agrees in writing to
earlier date. 18 U.S.C. § 3161(c)(2). In United States v.
Rojas-Contreras, 474 U.S. 231 (1985), the Supreme Court held that this
trial preparation period is not restarted upon the filing of a substantially
similar superseding indictment.
- If the indictment is dismissed at the defendant's request, the
provisions apply anew upon reinstatement of the charge. 18 U.S.C. §
3161(d)(1). If the indictment is dismissed at the request of the
70-day clock is tolled during the period when no indictment is outstanding,
begins to run again upon the filing of the second indictment. 18 U.S.C.
3161(h)(6). If trial ends in a mistrial, or the court grants a motion for a
trial, the second trial must begin within 70 days "from the date the action
occasioning the retrial becomes final." 18 U.S.C. § 3161(e).
- Certain pretrial delays are automatically excluded from the Act's
limits, such as delays caused by pretrial motions. 18 U.S.C. §
3161(h)(1)(F). In Henderson v. United States, 476 U.S. 321, 330
the Supreme Court held that § 3161(h)(1)(F) excludes "all time between
filing of a motion and the conclusion of the hearing on that motion, whether
not a delay in holding that hearing is 'reasonably necessary.'" The Act
excludes a reasonable period (up to 30 days) during which a motion is
"under advisement" by the court. 18 U.S.C. § 3161 (h)(1)(J). Other
excluded from the Act's time limits include delays caused by the
of the defendant or an essential witness (18 U.S.C. § 3161(h)(3));
attributable to a co-defendant (18 U.S.C. § 3161(h)(7)); and delays
attributable to the defendant's involvement in other proceedings, including
resulting from an interlocutory appeal. 18 U.S.C. § 3161(h)(1)(E).
however, that the 30-day defense preparation period provided for in §
3161(c)(2) is calculated without reference to the Section 3161(h)
- A defendant may not expressly waive his rights under the Speedy
Act. See, e.g., United States v. Saltzman, 984 F.2d 1087,
1090-1092 (10th Cir. 1993). However, if the trial judge determines that the
"ends of justice" served by a continuance outweigh the interest of the
the defendant in a speedy trial, the delay occasioned by such continuance is
excluded from the Act's time limits. 18 U.S.C. § 3161(h)(8)(A). The
must set forth, orally or in writing, his reasons for granting the
18 U.S.C. § 3161(h)(8)(A). The government should never rely on a
unilateral waiver of his rights under the Act. The government should make
that the judge enters an "ends of justice" continuance and that he sets
reasons for doing so.
- The Act provides a sanction of dismissal for violation of its time
limits that may be with or without prejudice to reprosecution. In assessing
whether dismissal should be with prejudice, the court must consider the
seriousness of the offense, the circumstances leading to dismissal, and the
impact that reprosecution would have on the administration of the Act and on
administration of justice. 18 U.S.C. § 3161(a)(1)-(a)(2). In
States v. Taylor, 487 U.S. 326 (1988), the Supreme Court held that a
court must examine each statutory factor in deciding to dismiss charges with
prejudice. The Court in Taylor found that a minor violation of the
limitations of the act that did not prejudice the defendant's trial
did not justify the dismissal with prejudice of an indictment charging
- While a defendant cannot unilaterally waive his rights under the
Trial Act, he can forfeit his right to obtain a dismissal of the case for a
claimed violation of the Act by failing to move for dismissal prior to
The statute provides that "[f]ailure of the defendant to move for dismissal
to trial * * * shall constitute a waiver of the right to dismissal under
section." 18 U.S.C. § 3162(a)(2).
- The Speedy Trial Act is inapplicable to juvenile delinquency
which have their own speedy trial provision. See 18 U.S.C. §
(speedy trial provision of the Juvenile Delinquency Act). Furthermore, the
Interstate Agreement on Detainers (IAD) provides its own time limits for
incarcerated in other jurisdictions. See 18 U.S.C. Appendix 2,
Articles III-VI. In such a case, the government must comply with both the
limits of the IAD and the Speedy Trial Act.
- Case law governing the Speedy Trial Act is found in West's Federal
Digest 3d, Criminal Law, at Key Numbers 577.1-586. The legislative history
found in S. Rep. No. 1021, 93d Cong., 2d Sess. (1974); H.R. Rep. No. 1508,
Cong., 2d Sess., reprinted in 1974 U.S. Code. Cong. and Ad. News 7401; S.
No. 212, 96th Cong., 1st Sess. (1979); H.R. Rep. No. 390, 96th Cong., 1st
reprinted in 1979 U.S. Code Cong. and Ad. News 805. These reports are
in a one-volume legislative history of the Act, prepared by the Federal
Center, which was previously distributed to all United States Attorneys'
- Additional resource tools are 1) the Guidelines to the
of the Speedy Trial Act of 1974 as Amended (revised December 1979), which
prepared by the Committee on the Administration of Criminal law of the
Conference of the United States (Judicial Conference Guidelines), and
to all United States Attorneys' Offices; and 2) the guidelines adopted by
Court of Appeals for the Second Circuit (Second Circuit Guidelines). A good
overview of the Speedy Trial Act (including cases interpreting the Act), and
a defendant's constitutional speedy trial rights in general, is provided in
Twenty-Fifth Annual Review of Criminal Procedure, 84 Georgetown Law
Journal 1022-1039 (April 1996). Additionally, the Appellate Section of the
Criminal Division is available for assistance in interpreting the Act.
- A defendant's right to a speedy trial has constitutional and statutory
underpinnings in addition to the Speedy Trial Act. Federal statutes of
limitations provide a time frame within which charges must be filed.
Rule 48, Fed. R. Crim. P., grants trial courts discretion to dismiss cases
are not brought to trial promptly. See Rule 48(b), Fed. R. Crim. P.
(authorizing trial court to dismiss indictment if there is "unnecessary
in presenting the charge to a grand jury, in filing an information, or in
bringing a defendant to trial).
- Even if a charge is brought within the period provided by the
of limitations, a defendant may be able to show that preaccusation delay has
violated his Fifth Amendment due process rights. To obtain a dismissal of
charges by reason of pre-indictment delay, a defendant has the burden of
establishing that the government engaged in intentional delay to gain a
advantage, and that he suffered actual prejudice. United States v.
Lovasco, 431 U.S. 783 (1977); United States v. Marion, 404 U.S.
- A defendant's rights under the Speedy Trial Clause of the Sixth
Amendment are triggered by "either a formal indictment or information or
actual restraints imposed by arrest and holding to answer a criminal
United States v. Marion, 404 U.S. 307, 320 (1971). (As noted above,
delay before this time must be scrutinized under the Due Process Clause of
Fifth Amendment, not the Sixth Amendment's Speedy Trial Clause. United
v. MacDonald, 456 U.S. 1, 7 (1982)). In Barker v. Wingo, 407
(1972), the Supreme Court set out a four-factor test for determining whether
delay between the initiation of criminal proceedings and the beginning of
violates a defendant's Sixth Amendment right to a speedy trial. The test
requires the court to consider the length of the delay, the cause of the
the defendant's assertion of his right to a speedy trial, and the presence
absence of prejudice resulting from the delay. Barker, 407 U.S. at
- In United States v. Loud Hawk, 474 U.S. 302 (1986), where
reason for the 90-month delay (interlocutory appeals) did not weigh against
government, the Supreme Court held that the possibility of prejudice
by the delay was not sufficient to establish a Sixth Amendment speedy trial
violation. Moreover, the courts of appeals routinely reject Sixth Amendment
speedy trial challenges in the absence of a showing of prejudice. See,
e.g., United States v. Tannehill, 49 F.3d 1049, 1054 (5th Cir.),
cert. denied, 116 S. Ct. 167 (1995); United States v. Baker,
F.3d 1478, 1497 (9th Cir. 1995), cert. denied, 116 S. Ct. 824 (1996).
However, in Doggett v. United States, 505 U.S. 647 (1992), the
Court held that an "extraordinary" eight-and-one-half-year delay between the
defendant's indictment and arrest, which resulted from the government's
"egregious persistence in failing to prosecute [him]," violated his right to
speedy trial even in the absence of "affirmative proof of particularized
prejudice." Doggett, 505 U.S. at 652, 655, 657.
- Where there are successive state and federal prosecutions, the
rule is that the federal constitutional speedy trial right does not arise
a federal accusation against the defendant is made. Thus, a prior state
based on the same facts as the subsequent federal charge does not implicate
federal constitutional guarantee. United States v. Walker, 710 F.2d
1069 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984).
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