Should defense counsel affirmatively waive a client’s speedy trial rights if the court requests such a waiver?
Short Answer: No.
Mid-Length Answer: Speedy trial rights exist specifically to require the government to bring a case to trial within a reasonable period of time. A defendant should not be required to waive speedy trial right when the government causes delays that form the basis of a speedy trial claim. If the defendant has caused the delay, courts are likely to treat that already as an implied waiver. There will normally be no reason to affirmatively waive speedy trial rights.
Longer Answer:
In the case of Barker v. Wingo, 407 U.S. 514 (1972), the U.S. Supreme Court outlined four factors that are generally considered in determining whether a defendant’s right to speedy trial has been violated:
- Length of the delay;
- Reason(s) for the delay;
- Did the defendant affirmatively assert the right to a speedy trial;
- Whether the delay resulted in prejudice (harm) to the defendant’s interests.
The second factor, reasons for delay, is key to assessing whether or not to waive a speedy trial right. If the defendant is not at fault for the delay, the defendant normally should not need to waive the speedy trial right.
A few examples of delays that could be attributable to the government:
- Failing to provide defense discovery in a timely manner;
- Providing only partial discovery;
- Failing to provide Brady or Giglio materials to the defense;
- Police officers being unavailable for proposed trial dates;
- Prosecutor availability for proposed hearing dates;
- Backlogs or slow testing at the state crime lab.
There are times when a defendant may need to request a delay in order to properly prepare for trial. Here are a few examples::
- Defense investigators discover a new witness who needs to be interviewed;
- The defense requests an opportunity to conduct independent testing of alleged drugs or DNA materials;
- An expert witness for the defense is not immediately available.
In determining whether a defense-requested delay should be attributed to the defense or to the government, consideration should be given to the circumstances that created the need to request the delay.
- Were defense investigators delayed in discovering a new witness because the government failed to turn over all of the police investigative reports?
- Did the government cause delays by wrongly refusing to turn over material samples for defense testing?
- Is the defense calling an expert witness only to rebut an expert being called by the government? Did the government give timely notice of their expert?
If the defense finds it necessary to request a delay in order to correct or address problems caused by the government, then such delays may still sometimes be considered to be the fault of the government.
If the defense is solely responsible for the delay, then appellate courts should not be expected to attribute fault for such delays to the government – whether or not the defendant has made an affirmative waiver of the speedy trial right.
If the government is to blame for unreasonable delays in the case, the defendant should not waive the right to speedy trial but should instead affirmatively assert that right on the record.