The right of a person accused of a crime to a "speedy trial" is widely considered a fundamental human right. It is enumerated in a number of government constitutions.

However during the COVID-19 pandemic many courts suspended operations for months, and now more than 6 months later many are still struggling to resume even limited criminal trials. This means that defendants will wait at least six months longer than usual for trials.

How does the law balance the delays wrought by exigent circumstances like this pandemic with the fundamental right of defendants to speedy trials?

2 Answers 2


The hard part is figuring out what the nstional standard of speed is. As held in US v. Marion, 404 U.S. 307, The Sixth Amendment's guarantee of a speedy trial is applicable only after a person has been "accused" of a crime. In Washington, Rule CrR 3.3 states the number of days and the order of priority to be given to trials. Therefore, under section (b), criminal trials take precedence over civil cases; criminal trials are to commence within 60 days or 90 days, depending on whether defendant is incarcerated. There are a number of factors that allow the deadline clock to reset, such as failure to appear, mistrial, change of venue etc. This also includes "exclusions" (events not counted for the 60/90 day rule) such as competency hearings, continuances and of particular interest for covid:

(8) Unavoidable or unforeseen circumstances affecting the time for trial beyond the control of the court or of the parties.

If that doesn't work out, then there is a "cure":

(g) The court may continue the case beyond the limits specified in section (b) on motion of the court or a party made within five days after the time for trial has expired. Such a continuance may be granted only once in the case upon a finding on the record or in writing that the defendant will not be substantially prejudiced in the presentation of his or her defense. The period of delay shall be for no more than 14 days for a defendant detained in jail, or 28 days for a defendant not detained in jail, from the date that the continuance is granted. The court may direct the parties to remain in attendance or be on- call for trial assignment during the cure period.

That give a little bit of leeway. If they still cannot manage within that time frame, the last section of the rule is

(h) A charge not brought to trial within the time limit determined under this rule shall be dismissed with prejudice. The State shall provide notice of dismissal to the victim and at the court's discretion shall allow the victim to address the court regarding the impact of the crime. No case shall be dismissed for time-to-trial reasons except as expressly required by this rule, a statute, or the state or federal constitution.

The covid lockdown orders appear to have worked around the time to trial rules. This order of March 20 orders that

  1. All criminal jury trials are suspended until after April 24, 2020. Trials already in session where a jury has been sworn and social distancing and other public health measures are strictly observed may proceed or be continued if the defendant agrees to a continuance. For all criminal trials suspended under this provision, April 25, 2020 will be the new commencement date under CrR 3.3.

So it seems likely given the existing latitude in commencing trials that section (h) has not been invoked, and covid hasn't been a criminal get out of jail free card. But that's just Washington, and it may be an under-advertised problem.

  • (8) might also trigger in case of war, if for example the draft would be triggered and the accused, the DA and judge or half the jury pool suddenly ends up getting pulled for war-training
    – Trish
    Aug 21, 2020 at 20:27
  • 2
    has CrC 3.3(e)8 ever been challenged? Delaying because of "unavoidable or unforeseen circumstances" clearly treats the right as if it were the courts's prerogative rather than a defendant's prerogative.
    – grovkin
    Aug 22, 2020 at 9:49

In the United States, there are two main sets of laws governing the right to a speedy trial.

The right to a speedy trial is protected by the Sixth Amendment, but that right is somewhat amorphous. It does not entitle you to a trial within any specified period of time, only to a trial within a reasonable amount of time, considering four factors, "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo, 407 U.S. 514, 530 (1972).

The right to a speedy trial is also statutorily protected. As far as I know, every state has a law that sets bright-line standards for how long the government has to bring a case to trial. For instance, the federal Speedy Trial Act generally entitles a defendant to a trial within 30 days of arrest. 18 U.S. Code § 3161(b).

But the statutes also generally allow quite a bit of flexibility. The defendant himself will often want to delay the trial while he pursues a fact investigation, discovery, pretrial motions, etc. But the government may also be entitled to delay the trial, especially if it is unable to prepare for trial because it is busy responding to the defendant's discovery requests or pretrial motions.

With both the constitutional and the statutory right to a speedy trial, then, courts are generally permitted a bit of latitude to delay a trial as necessary, especially in cases where the delay is not attributable to the government.

With COVID-19, the widespread practice has been, as you noted, to delay trials. Like any other, that right is not absolute, and it must give way where the force of nature. Although inconvenient for many defendants, there was little suggestion -- at least in the early days of the shutdown -- that this practice violates the right to a speedy trial in general, though there may be cases where specific facts lead to a different outcome. But as time wears on, it seems likely that prosecutors and judges will need to find a way to make trials happen.

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