What Is COVID-19’s Impact on Speedy Trial Rights?

As COVID-19 continues to spread, federal district courts around the country have issued orders suspending jury trials.  Although many trials already underway are being completed, many courts have continued upcoming trials in criminal cases, sometimes indefinitely.  Courts have cited concerns about the threat to the public health and individuals resulting from the need to assemble dozens of potential jurors, attorneys, parties, and court personnel.  What do these continuances mean for criminal defendants’ rights to speedy trials?

COVID-19 and the Speedy Trial Act – The Sixth Amendment of the U.S. Constitution guarantees criminal defendants a right to a speedy trial.  That amendment does not prescribe a specific deadline for criminal trials.  But Congress has enacted a statute—the Speedy Trial Act—to effectuate the constitutional guarantee, imposing a number of specific requirements in criminal cases. 

The Act sets a presumptive timetable for criminal proceedings.  It generally requires the government to file an indictment or information within 30 days of an arrest or service of summons, and trial to begin no more than 70 days later.  But that timetable can be extended for various reasons—two of which appear particularly relevant in the current pandemic.

First, the Act permits a court to extend the presumptive timetable if defendants or essential witnesses are unavailable.  For purposes of the Act, a person is considered unavailable if his presence cannot be obtained by due diligence or he resists appearing for trial.  In the current pandemic, it is increasingly likely that parties will have difficulty procuring witnesses despite diligent efforts as more and more people are taken ill, refuse to leave their homes for fear of falling ill, or are prevented from travelling.  The impact on witness availability could be particularly severe in cases involving witnesses from other States or even other countries.  But the mere existence of COVID-19 may not warrant a continuance if parties rely on generalized concerns rather the pandemic’s impact on actual witnesses or if COVID-19 is used an excuse for lack of preparation. 

Second, the Act’s presumptive timetable may be modified if it “serves the ends of justice.”  Many district courts, including the Central District of California, Northern District of Illinois, and Southern District of New York, have already issued general orders continuing jury trials on that basis.  They have cited directions from federal and state authorities to avoid public gatherings or remain at home, and concerns for the health of everyone who would be involved in a trial.

Although there is some precedent for continuing criminal trials in the wake of natural disasters or other exigencies that interrupt normal court operations, COVID-19 threatens to prevent normal life from resuming for months to come.  The longer the pandemic stretches on, the greater the potential prejudice to criminal defendants awaiting trial, particularly those in pretrial detention.  That prejudice may require courts to reexamine any blanket prohibitions on criminal jury trials. 

Even in the absence of a blanket prohibition, however, there may be obstacles to a fair trial that nonetheless favor continuances in individual cases.  COVID-19, for example, could interfere with presenting vital evidence.  One magistrate judge has observed that translations of Spanish-language evidence are difficult to obtain at this time. 

Or COVID-19 could prevent courts from assembling a jury venire that is truly representative of the community.  Certain demographics could be under­repre­sented if public transportation is offline or if older, more vulnerable individuals remain home due to health concerns.   

COVID-19 and the Sixth Amendment – Although the Speedy Trial Act generally imposes stricter timing requirements than the Constitution itself on criminal trials, the Sixth Amendment sets an outer limit on the extent to which courts can invoke the Act to excuse delays in criminal cases.  It also protects criminal defendants in situations in which the Act’s requirements are inapplicable or waived. 

To determine what constitutes a speedy trial for constitutional purposes, courts must weigh the length of the delay against the cause of delay, the defendant’s demands for a speedy trial, and the resulting prejudice.  Although several of those considerations are case specific, that framework will require courts to determine how much delays caused by COVID-19 should count against the government as unwarranted delay in bringing a criminal defendant to trial.

Generally, delays attributable to more neutral reasons like overcrowded dockets and missing witnesses count against the government less than tactical delays.  That suggests some delays attributable to COVID-19 will not weigh heavily against the government.  As discussed above, COVID-19 has the potential to render witnesses unavailable, interfere with assembling prospective jurors, or hamper efforts to collect and present evidence.  Government restrictions are, of course, causing some of those effects.  But public-health orders are designed to slow a deadly pandemic, not to give the government an advantage in criminal trials. 

Ultimately, however, the government still has responsibility for ensuring defendants receive a speedy trial.  Criminal trials cannot be put off endlessly.  And prolonged continuances may be particularly inappropriate in cases in which COVID-19 is responsible for only a small amount of delay or appears to be a scapegoat for lack of diligence.  As courts are just beginning to wrestle with the consequences of COVID-19, this area of law will continue to evolve.   

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