The Need for Speed (Part Two of Three)

Unlike the prior post about a defendant’s statutory right to a speedy trial, this post will be in a question and answer format. In addition, the rules surrounding a defendant’s constitutional right to a speedy trial are not synonymous with speed, but it’s antonym.

When does a defendant’s constitutional right to a speedy trial begin?

The Georgia Appellate Courts has held that the constitutional right to a speedy trial for a defendant attaches either when law enforcement arrests the client or when the State brings formal charges against a defendant, whichever is earlier. This is in contrast to a defendant’s statutory right to a speedy trial under OCGA §17-7-70, which states that this statutory right attaches when the State brings formal charges against the defendant.

How does a defendant seek how to enforce his claim that the State has violated his constitutional right to a speedy trial?

If a defendant believes that the State has violated his constitutional right to a speedy trial, he has to file a motion seeking the dismissal of the charges against him.

When can a defendant file a motion claiming that the State has violated his constitutional right to a speedy trial?

A defendant can file a motion, at any time. However, the decisions of the Georgia Appellate Courts indicate that they will only scrutinize a defendant’s claim that the State has violated his constitutional right to a speedy trial when a year has passed. The Georgia Court of Appeals has held that “greater pretrial delays simultaneously increase the degree of prejudice presumed and decrease the expectation that the defendant can demonstrate tangible prejudice to his or her ability to present a defense.” Yet, the Georgia Supreme Court has held in their rulings that the mere passage of time alone does not compel a finding that the State has violated a defendant’s constitutional right to a speedy trial.

Does a defendant have to file a demand for a speedy trial before he can claim that the State has violated his right to a constitutional speedy trial?

No, the filing of a demand for a speedy trial is not necessary for a Defendant to invoke his constitutional right to a speedy trial. Yet, the absence of proof that a defendant has invoked his right to a speedy trial does weigh heavily against him.

What does a judge have to consider when making a decision on whether the State has violated a defendant’s constitutional right to a speedy trial?

There a number of factors to consider in determining whether there has been a violation of a defendant’s constitutional right to a speedy trial, and they are the following:

a.) the length of the delay,
b.) the reason for the delay,
c.) assertion by the defendant of his right to a speedy trial, and
d.) prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514 (1972).

No one factor dictates whether there has been a violation of a defendant’s constitutional right to a speedy trial. The trial court must engage in a balancing test in determining if there has been a violation of a defendant’s constitutional right to a speedy trial. In determining whether there has been prejudice to a defendant, the trial court must consider three things:

a.) preventing oppressive pre-trial detention
b.) minimizing anxiety and concern of the defendant, and
c.) limiting the possibility that the defense will be impaired.

What happens if a judge agrees that a defendant’s constitutional right to a speedy trial has been violated?

If a judge agrees with the defendant, then the double jeopardy provisions of the Georgia and United States Constitution will bar the State from prosecuting the defendant. For this reason, judges take these types of motions seriously, and are not quick to grant them.

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