Right to a Speedy Trial
Under the US Constitution, an accused enjoys the right to a speedy trial. US v. Danylo, 73 M.J. 183 (C.A.A.F. 2013). A service members 6th Amendment right to a speedy trial triggers upon the preferral of charges or pretrial restraint. That right is also codified in Article 10, UCMJ. Military courts look at 4 issues (so-called Barker/Moreno factors) when deciding whether the 6th Amendment right to a speedy trial has been violated:
- The length of the delay;
- The reason for the delay;
- Whether the accused demanded a speedy trial; and,
- Whether there was any prejudice to the accused (usually the loss of evidence due to the delay).
Generally, the appellate courts do not view it as a speedy trial violation for the government to try co-accused before the accused – thereby creating delay. There have been cases – in the law – where individuals have spent upwards of 350 days in pretrial confinement.
Whether there has been a speedy trial violation is a question of law that the courts review de novo. US v. Arriaga, 70 M.J. 51 (C.A.A.F. 2010).
Article 10 requires that once an accused is placed in pretrial confinement, immediate steps have to be taken to inform them of the charges, bring them to trial, or dismiss the charges. Article 10 provides a more demanding standard than the 6th Amendment. This is partly because the military does not have a bail system like the civilian sector.
The right to a speedy trial can be waived for purposes of a guilty plea.
Rule for Courts-Martial 707 also creates a right to a speedy trial. It basically requires that the accused be brought to trial within 120 days after pretrial confinement. Unfortunately, all sorts of government excuses can constitute good cause. Dismissal under R.C.M. 707 usually is without prejudice and allows the government to release the accused from confinement and refile charges.
