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Speedy trial in the time of COVID-19

As governments attempt to combat the spread of COVID-19, trials in the US have been postponed or canceled. But can they do that? Don’t you have a right to a speedy trial? Well, yes. But that phrase might not mean what you think it means.

What is a speedy trial and where does that right come from?

The sixth amendment to the US Constitution says:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Sixth Amendment, US Constitution

So that’s it, we’re done. It says speedy. Simple. Right? Not exactly. In fact, most of the time when you hear speedy trial in court, we aren’t even talking about the 6th amendment.

There are different kinds of speedy trial rights. The rights you have under each of them may be different.

In a state criminal trial, You have rights under:

  • The American constitution
  • Your state constitution
  • Your state law – usually in rules of criminal procedure

In a federal criminal case, the state constitution won’t protect you, but the federal rules of civil procedure will.

The Federal Speedy Trial Right

The federal constitutional right to a speedy trial applies in state court. But what does that mean?

Ultimately, it means what the Supreme Court of the United states says it means. (SCOTUS) In Barker versus Wingo, SCOTUS looked at how you can tell if a 6th amendment speedy trial right has been violated. 407 US 514. 1972. Like many opinions, the rule of Barker is that there is no rule. There are four factors that courts have to look at on a case by case basis to see if your right to due process has been violated by the lack of a speedy trial. Those factors are:

  1. Length of delay
  2. Reason for delay
  3. Time and manner in which the defendant has asserted his right
  4. Degree of prejudice to the defendant which the delay has caused.

1. Length of delay

Longer delays are worse for your rights. But we’re not talking about weeks or months.

COVID delays are now at 3 months, and even if jury trials start tomorrow, it will take one or two years to clear the backlog of trials. We’re still not talking Barker-length delays. The length of the delay in barker was over five years. I’ve had a case that took over 7 years to get to trial, and it wasn’t the oldest in the court.

COVID is unusual, but courts are closed for months at a time all the time. If the courthouse floods, if there is a major hurricane…sometimes courts and lawyers are so busy that it takes months or even more than a year to schedule trial. That’s why the second Barker factor is important.

2. Reason for delay

Here’s a secret – criminal defense attorneys ask for continuances all the time. A lot of times, a continuance is a good thing in a criminal case. If the delay, or part of the delay, is because of the defendant, that hurts the speedy trial claim but it may be good for the case as a whole.

So what about COVID? Is it a good reason for the delay?

I’m just a lawyer, but Covid is a pretty good reason to delay getting a bunch of people in the same room together. Some may have underlying medical conditions or be caring for someone else who does.

Jails, like nursing homes and other high-density residences, are high vectors for outbreaks. There are very few degrees of separation between the jail and you. Inmate, deputy, public. Even without the inmate docket, Witnesses and jurors and court staff’s lives may be endangered by an asymptomatic person in court.

So trials can’t be canceled for years, but some COVID delay is okay under the Constitution.

3. Time and manner in which the defendant has asserted his right.

Basically: did the defendant complain? Any action by the defendant to complain about the delay helps. It could be a demand for a speedy trial in court, an objection to the resetting of trial, or a motion complaining that evidence may be lost. Object early and often. And it’s a stronger case if you voice some prejudice that will occur because of the delay instead of just saying “objection” on the record and moving on.

4. Degree of prejudice to the defendant because of the delay

If you are harmed because of the delay in taking you to trial, you have a stronger case. Witnesses disappear and die when years go by before trial. The length of time itself can be prejudicial because of the stigma of being prosecuted. If you’re in jail awaiting trial, the prejudice is higher than if you are out on bond. My guess is that some defendants will get speedy trial relief under Barker while others with the same delay will not. This is because some cases are more prejudiced with time than others. It’s even more likely that state speedy trial rights are implicated first and a defendant won’t get to the Barker factors.

Colorado Constitutional Speedy Trial Rights

Most, if not all, states have speedy trial rights enshrined in their state constitutions. States can have constitutions that give more rights, but most states track the federal constitution. Colorado is one of those states – it uses the Barker v Wingo factors.

So we’re going to do what most state courts do – we’ll cite their constitution and skip the analysis.

Section 16. Criminal prosecutions – rights of defendant. In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

Section 16, article 11 of Colorado Constitution.

(Send me a tweet @bykathryn if you know of a state that’s actually using their state constitution to give relief.)

Colorado Statutory Speedy Trial Right

So what are we usually talking about when you hear people ask about speedy trial in court? Legislation and procedural law.

Legislatures can give more rights to criminal defendants than the Constitution does. For speedy trial, legislatures give specific time periods that have to be followed in each case.

For example, Colorado’s statutory right to a speedy trial is in Colorado Revised Statutes, section 18-1-405, and Colorado rules of criminal procedure Rule 48.

The time starts when the defendant first comes to court and pleads not guilty. At that point, the court and the prosecutor have a duty to bring the defendant to trial within six months.

Of course, it’s more complicated than that. and there are few really important differences between your constitutional right and your rule 48 rights.

A practice tip – when I’m setting a trial date and am asked if my client will waive speedy, I always try and specify she’s waiving her rule 48 speedy trial right. Mostly because I’m wordy, but also to make it clear that we’re talking about the 6-month rule only.

Complication #1: if you have a lawyer, the Rule 48 speedy trial right has to be expressly invoked. How? Your lawyer has to expressly object to a trial setting outside the speedy trial limit. 18-1-405(5.1). That rule doesn’t apply if you are pro se – or acting without counsel.

Complication #2: The right can be waived. If you don’t move for a dismissal because of a speedy trial violation, you waive the right to the statutory speedy trial.

How can the six months be extended?

State law can extend that six months, and the defendant’s actions can too.
The statute can be waived and a new speedy trial clock starts over if you ask for a continuance or if you do not show up for trial.

A defense request for a continuance that actually affects the set trial date extends the trial clock for six months from the date of the request.
If you do not show up for trial, the clock extends by six months from the date that you do finally appear in court.

The clock can also be tolled – that is suspended and then restarted at a later time.

If you agree to a prosecution continuance, the clock extends for the length of time between the granting of the continuance and the new date of the trial.

Those are things the defendant has control over. What about things that the defendant may not have control over – can anything else extend the speedy trial clock? Yes.

Competency evaluations, appeals prior to trial, changes of venue, mistrials, and the prosecutor’s efforts to secure evidence needed for trial.

What about COVID and statutory speedy trial rights?

As of June 12th – COVID-19 is not an exception to the speedy trial clock and does not toll speedy. There is no public health exception to the speedy trial clock.

The Orders of the Chief Justice of the Colorado Supreme Court has issued so far suspended most trials because of Covid, but it expressly excluded trials that had speedy trial deadlines from that order. The speedy trial clock is still running.

But we all know that COVID is changing things, and it can be a reason that speedy trial clock pauses.

The speedy trial clock can be paused when the prosecution shows that material evidence is unavailable. But they have to show that the evidence is really necessary and they actually tried to get it to trial.

COVID can also prevent the speedy trial clock from starting if it prevents someone from being arraigned – or pleading not guilty. If the clock never starts, it doesn’t stop. There are other rules that address the time between the incident and arraignment, but that’s another article.

Comparing constitutional and state law speedy trial protections.

The speedy trial rules are there to protect speedy trial constitutional rights, but in practice the rules are very different than the rights.

We talk about years-long delay for constitutional violations while rule violations may be measured in days or months.

The start time is different, as the constitutional violations is measured when the crime occurs or when the crime is charged. In Colorado, the speedy trial clock doesn’t start until someone pleads not guilty.

The factors in finding a violation are different. Factors for finding a constitutional violation include whether the defendant is hurt by the delay. That’s not a consideration in a speedy trial rule violation, in Colorado.


Every case is different, and there are many nuances of speedy trial rights that I haven’t talked about here.

If you’re worried that courts can’t close to prevent COVID-19 because that would require releasing dangerous criminals…just don’t. For one – in a serious case where that would actually be a concern, there have probably already been so many continuances that the speedy clock isn’t going to end any time soon.

If you have a criminal case and you’re wondering about speedy, you need to talk to a dedicated criminal defense lawyer familiar with both state law and constitutional rights. This is a case where what you don’t know can hurt you. It’s important to take action to preserve your rights. Contact Kathryn at 303-567-7981 if you want to protect your speedy trial rights.

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