WAIVING SPEEDY

“Did he waive speedy?” is a frequent question that I am called upon to interpret.  I sometimes wonder what new interpreters make of this and so many other common shortcuts for longer phrases.  I also sometimes wonder why the courts insist on calling it “speedy”.  I only say that because of the frequency with which trials are delayed.  The phrase itself, of course, comes from our Bill of Rights, an amendment to the US Constitution that was ratified in 1789.  So what is “speedy”?

In the United States, a person accused of a crime has the right to be brought to trial within 60 days if they are in custody on that charge, or within 90 days if they are not in custody on that charge.  If they are not brought to trial by that date, with very few exceptions, they would have to be released.  So the government has to work very hard to get people to trial, especially on more serious charges.  But our basic government stance is that we are all innocent until proven guilty.  So the idea behind this right to speedy trial is that a (presumed) innocent person accused of a crime should not be held for years without a trial.   Political prisoners or “enemy combatants” are not included within this rule, sadly for them.  Neither are migrants awaiting deportation.

But within criminal law, at least, the idea is that we should not hold people for months or years on end without any trial to prove beyond a reasonable doubt that the person held has in fact committed the crime.  So a couple months is the idea of how long a person should be held without the government “knowing” that they are guilty.  The problem with that time frame is that a defendant may not be well served by rushing to trial if the case is complex and has many witnesses, or needs experts for the defense.  The defendant may be best served by extending his trial date.

In complex cases, attorneys will frequently ask for several continuances.  This could be because they have not yet received something like the police videotape, or the lab results.  It could be they have not been able to schedule defense interviews with the main witnesses.  Or they have not had time to get an expert to review the evidence and prepare their testimony.  Then for a larger trial, there has to be a time found when all the witnesses, including experts and law enforcement and of course both attorneys, are available during the same time period.  This can easily be months out.

So, as the defense usually explains it, you the accused have the right to go to trial within 60 days if in custody on this case, or within 90 if you are out of custody.  However, every time the defense asks the court for more time, we have to give the prosecution more time as well, so the speedy trial clock is reset to today, or in some courts, to the date of your next hearing, and starts to run again from that new date.

Thus, the theoretical right to a speedy trial is truly theoretical when it comes down to it.  You always have the right to a speedy trial.  But if you are accused of a major crime, and you need time to prepare your defense so you have a better chance to prevail at trial, you may end up signing three or four times – or more – to “waive speedy” and start the 60 or 90 day clock ticking again.  It is a strange concept to explain to someone in jail:  You have the right to go to trial within 60 days, but the start date of those 60 days might change several times.  Thus, you always have the right to go to trial within 60 days, but not from a date certain.

Get it?  If you are held by the US government because you have been accused of a crime, you have an absolute right to go to trial within 60 days – of a date that keeps on changing.  That is called “speedy trial”. When your lawyer needs to change the start date, we call it “waiving speedy”.  Or as we say in my target language, you have the right to go to trial without delay, but we are going to delay it.  Just one of many strange and mysterious concepts that people in jail have plenty of time to try and wrap their minds around.  And the rest of us can luxuriously ignore, unless and until arrested.