Is there a right to a speedy trial in SC?
Or, not really, depending on how you look at it. The federal constitution has a right to a speedy trial, and that constitutional right applies in SC courts. The SC constitution also contains a right to a speedy trial that applies in SC Courts, but there is no statutory right to a speedy trial in SC.
Below, we will look at the basics of the right to a speedy trial in SC, including:
- The federal case that defines our constitutional right to a speedy trial,
- When a case should be dismissed for a violation of the constitutional right to a speedy trial,
- Why SC should pass a speedy trial act, and
- Models for a SC speedy trial act.
SC’s Right to a Speedy Trial is Defined by Barker v. Wingo
Do you have a right to a speedy trial in SC courts?
Yes, because you have a constitutional right to a speedy trial. That constitutional speedy trial right does not provide a number of days, months, or years that is considered “speedy,” however. The Sixth Amendment to the US Constitution simply says that you “shall enjoy the right to a speedy and public trial…”
Similarly, the SC State Constitution gives no clues as to what a speedy trial is – it just says you have the right to one: “Any person charged with an offense shall enjoy the right to a speedy and public trial…”
Although the federal courts and many states have enacted laws defining the right to a speedy trial, setting time limits within which a case must be tried, and providing penalties for the failure to try a case within the time limits, SC does not have a speedy trial act.
Instead, SC courts have said that the right to a speedy trial is governed by a US Supreme Court case, Barker v. Wingo, that provides factors a court should consider before granting a motion to dismiss for denial of a defendant’s speedy trial right.
When Should a Case be Dismissed for Violation of the Speedy Trial Right?
There is no set time limit for a defendant’s constitutional right to a speedy trial.
Instead, SC courts use the factors outlined in Barker v. Wingo, including 1) the length of the delay, 2) the reason for the delay, 3) the defendant’s assertion of their right, and 4) the prejudice to the defendant.
Length of the Delay
How long is too long to bring a case to trial depends “upon the peculiar circumstances of the case.”
For example, a complex murder charge that requires expert witnesses and forensic evaluations should be expected to take longer than a run-of-the-mill street crime like an assault, a robbery, or even a murder charge when the facts are simple and there are no forensic or competency issues.
If there is a simple case, for example, with one eyewitness, one or more police officers who will testify, no forensic testimony, and no expert witnesses, why should this take more than a few months to prepare for trial?
So how long is too long?
In Barker v. Wingo, just over five years for a murder prosecution was too long, and the conviction was reversed.
But then, in State v. Foster, five and one-half years for a murder prosecution was not too long for the SC Supreme Court, and this conviction was affirmed on appeal.
Reason for the Delay
The second factor courts consider is the reason for the delay – was it the State’s fault, the defendant’s fault, or no one’s fault?
If the delay was caused by the defense’s requests for continuances, it is less likely a case will be dismissed for denial of a speedy trial.
On the other hand, if the delay was caused by the prosecution, it was deliberate, and it was intended to “hamper the defense,” it “should be weighted heavily against the government.”
But what if, as in most cases, the delay is caused by negligence or overcrowded courts? Negligent prosecutors or overcrowded courts still counts against the government:
A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.
There are valid reasons for delay – a missing witness, forensic testing, or the need for forensic evaluations, for example. Even in these cases, the delay must be reasonable, however.
Defendant’s Assertion of Their Right
The defendant’s assertion of their right to a speedy trial is another factor the courts consider – this is why many defense lawyers include a demand for a speedy trial in their initial discovery requests that they file with the court.
Although a defendant can waive their right to a speedy trial, a waiver must be expressed clearly on the record – failure to request a speedy trial is not enough. The US Supreme Court has said that “presuming waiver from a silent record is impermissible.”
Also, it is the State’s responsibility to bring a defendant’s case to trial; it is not the defendant’s responsibility: “A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process.”
Although a failure to request a speedy trial cannot be considered a waiver of the right, a case is more likely to get dismissed (whether at trial or on appeal) when the defendant 1) requested a speedy trial in their initial filings, 2) has never requested a continuance for the defense, and 3) has filed multiple motions to dismiss based on the denial of a speedy trial.
Prejudice to the Defendant
The last factor the courts consider when deciding to dismiss a case for denial of the speedy trial right is whether there has been any prejudice to the defendant’s case.
A defendant should not be required to “defend a stale prosecution” – evidence becomes more difficult to find, witnesses disappear, and memories fade over time. A court is more likely to dismiss a case for denial of a defendant’s right to a speedy trial when the delay has resulted in an inability to locate witnesses, the loss of evidence, or other prejudice to the defendant’s case.
Why is There no Statutory Right to a Speedy Trial in SC?
The problem in SC is that there is no Speedy Trial Act – there is no set time limit, and there are no concrete guidelines for 1) how long is too long, 2) what justifies delay, and 3) the consequences when someone’s right to a speedy trial is delayed.
The issue of speedy trials only comes up in SC courts when a defendant asks for their case to be dismissed – after their right to a speedy trial has been violated. Then, in many cases, the court will “err on the side of caution,” and leave it to the appellate courts to decide whether the defendant’s speedy trial right was violated (while the defendant waits in prison for a decision).
Why doesn’t SC have a speedy trial act? Would it cause chaos, put an unreasonable burden on prosecutors, and result in thousands of cases being dismissed?
No, and we only need to look to the federal courts and other states for guidance…
Federal Right to a Speedy Trial
The federal courts have a statutory right to a speedy trial, and it works. The Act contains time limits – a baseline of 70 days with reasonable exceptions and reasons to extend the deadline under certain circumstances, and consequences for the failure to bring a case to trial within a reasonable time (dismissal).
SC’s Speedy Trial Act
In 1995, SC attempted to pass a Speedy Trial Act that was (mostly) based on the federal Speedy Trial Act, that contained 1) concrete deadlines, 2) reasons to extend the deadlines, and 3) consequences for failure to bring a case to trial within the deadline.
The Bill did not pass, and SC still does not have a Speedy Trial Act.
Criminal Defense Lawyers in Conway, SC
Attorney Johnny Gardner has over twenty years of trial experience defending misdemeanors and felonies in SC courtrooms, including motions to dismiss for denial of a speedy trial in the magistrate and municipal courts.