Sixth Amendment’s Speedy Trial Right: Ancient, Worthy and Elusive

Speedy Trial ClockThe Constitution’s Bill of Rights contains many protections for those the government accuses of having committed a crime.  Among them is the Sixth Amendment right to a “speedy trial”.  The provision is stated:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy … trial”

The right may has old roots and worthy goals and a meaning that judges, legislators and lawyers still grapple with.  The principle that a delay in bringing an accused person to trial in a reasonably short period of time serves justice, both for the accused and for society, is universally accepted.  Meeting that principle in practice has presented difficult problems.

The Assize of Clarendon

In 1166, nearly 850 years ago King Henry II of England laid out rudimentary rules of both criminal and civil procedure.  These rules were designated the Assize of Clarendon.   The rules consisted of 22 provisions for the conduct of the king’s courts.  Number four contained the basic concept that an accused person should promptly be brought before a judge and his case heard quickly.

“4. And when a robber or murderer or thief or the receivers of them be arrested … if the justices are not to come quite soon into the county where the arrests have been made, let the sheriffs send word … to one of the nearer justices … and the justices shall send back word … where they wish to have the men brought before them; and the sheriffs shall bring them before the justices … there before the justices let them make their law.”

In the 12th Century, the king appointed judges who would travel around the kingdom to hear cases, and a judge was not always available to address criminal questions.  The Assize of Clarendon ordered that a judge be found and an accused’s case be heard.

The Magna Carta

Fifty years after the Assize of Clarendon, in 1215, the 40th provision of the Magna Carta stated the principle that criminal justice should not be delayed:

 “To no one will we sell, to no one will we refuse or delay, right or justice.”

The “we” in the provision refers to King John, who agreed to the Magna Carta under threat of revolt by the English nobility.  Over 400 years later, in 1642, Sir Edward Coke concluded that English judges were required to give a prisoner “full and speedy justice” to avoid the evil of lengthy pretrial detention.

The Virginia Declaration of Rights

In June of 1776, Virginia was declaring its own independence from England.  As part of the process of establishing the Commonwealth of Virginia, George Mason drafted and the Virginia convention adopted a Declaration of Rights. [1]  This declaration included a “speedy trial” provision:

“That in all capital or criminal prosecutions a man has a right to demand … a speedy trial…”

This history would ultimately find its way to the American Bill of Rights in 1791.

Nearly Nine Centuries Old Yet Difficult to Define

The idea that “justice delayed is justice denied”[2] is ancient.  Yet the real meaning of “speedy trial” has been elusive.  In 1972, over 810 years after the Assize of Clarendon, the United States Supreme Court grappled with the problem in Barker v. Wingo, and developed a four part test to determine if an accused’s constitutional right to a speedy trial had been violated.

  • the length of delay
  • the reason for the delay
  • the time and manner in which the defendant has asserted his right
  • the degree of prejudice to the defendant which the delay has caused

Despite the fact that the defendant in Barker v. Wingo was not tried until five years after his arrest, the Court determined there had been no constitutional violation.

In 2013, the Court in Boyer v. Louisiana agreed with the state of Louisiana that a seven year delay, primarily due to the fact that Louisiana did not provide funds for an accused’s defense, was not a violation of the Sixth Amendment right to a “speedy trial”.

State and Federal Laws Defining Speedy Trial

In 1974, Congress passed the Speedy Trial Act that applies to persons accused of federal crimes.  Every state has either state constitutional or statutory provisions that apply to persons accused of state crimes.[3]  These provisions provide complex computations as to when the “time” for a trial has passed and a case must be dismissed.  The computations generally start with a defined time period, for example 180 days from arrest to trial. Does this take into account the work of a medical expert? Generally, a defendant must “demand” a speedy trial for these time periods to run, and even then, certain delays, such as a continuance requested by the defendant do not count in the time calculation.  Since the only remedy approved by the Supreme Court for a violation of the constitutional right to a speedy trial is dismissal of the charges and the calculations are often complex and open to interpretation, few cases are dismissed on speedy trial grounds.

Worthy Goals of The Speedy Trial Clause

The goals of the speedy trial clause are worthy and serve both the interest of the defendant and the public.

  • Prevention of a lengthy incarceration before a trial, amounting to a loss of liberty without trial and conviction
  • Minimize the ongoing impact of an accusation upon the innocent
  • Effects of a long delay upon an accused’s defense due to loss of evidence or witnesses (this consideration also is in the public’s interest)
  • Public expense in the ongoing incarceration or monitoring the accused
  • The danger of a guilty person on bail either committing a new crime or fleeing
  • The original consideration that “justice delayed is justice denied”

The idea of bringing an accused to trial in a “timely” manner is nearly nine centuries old. There are universally accepted goals behind the idea.  A straightforward means of meeting those goals remains elusive.


[1] The Virginia Declaration of Rights had an impact both upon the ultimate United States Bill of Rights and The Declaration of Independence.

[2] William Gladstone, British politician (1809 – 1898)

[3] The Sixth Amendment “speedy trial” clause originally applied to just the federal government.  Through the “incorporation” of most of the Bill of Rights by the Fourteenth Amendment, it now applies to the states as well.


For Further Reading



  1. […] Important protections were put in place for persons accused of crimes including the rights to a speedy trial, to remain silent, to not be prosecuted twice for the same crime, to have an attorney and […]

  2. […] The Sixth Amendment to the United States Constitution commands:  “In all criminal prosecutions, the accused shall enjoy the right to a speedy trial[.]”  U.S. Const. amend. VI.  Wisconsin’s highest court says a public health emergency justifies a […]