Right To A Speedy Trial

Prosecutors are required by state law and the constitution to conduct a criminal trial against an accused within a reasonable time frame. This is the defendant’s right to a speedy trial.

A person’s right to a speedy trial comes from

The Constitution and from
Illinois Statute.

Constitutional constraints are more liberal, and can’t be waived. The statutory right to a speedy trial, on the other hand, is often waived by the accused.

The Statutory Right To A Speedy Trial

In Illinois, if a person enforces their right to a speedy trial (or “demands his speedy trial”) the state then has either 120 or 160 days to conduct a trial.

The time frame depends on whether or not the accused is in custody or free on bail.

The prosecution risks dismissal of the charges if they don’t comply with defendant’s right to a speedy trial.

120 Days If In Custody

Section 103-5(a) (in custody) provides in relevant part:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***. Delay shall be considered to be agreed to by the defendant unless he or she objects to the delay by making a written demand for trial or an oral demand for trial on the record.” – 725 ILCS 5/103-5(a).

160 Days If Out On Bail

Section 103-5(b) (out on bail) provides in relevant part:

“(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant…Any demand for trial made under this subsection (b) shall be in writing; and in the case of a defendant not in custody, the demand for trial shall include the date of any prior demand made under this provision while the defendant was in custody.” – 725 ILCS 5/103-5(b).

Stopping The Speedy Trial Clock

stopping the clock to your right to a speedy trial — Stopping “Your Right To A Speedy Trail” Clock

The litigation around a statutory speedy trial violation almost always revolves around an analysis of the delays. Delays attributed to the defense “toll” or stop the speedy trial clock.

Section 103-5(f) speaks about delay:

“(f) Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subsections (a), (b), or (e) of this Section and on the day of expiration of the delay the said period shall continue at the point at which it was suspended.” – 725 ILCS 5/103-5(f)

Making A Demand For A Speedy Trial

The speedy trial statute is interpreted such that any delay is considered to be agreed to by a defendant “unless he or she object[ed] to the delay by making a written demand for trial or an oral demand for trial on the record.” 725 ILCS 5/103-5(a).

The Illinois Supreme Court has held that it requires a defendant to make a demand for trial after the delay is proposed. People v. Cordell, 223 Ill. 2d 380, 391 (2006).

As amended, section 103-5(a) places the onus on a defendant to take affirmative action when he becomes aware that his trial is being delayed. To allow basic requests for trial, made before any delay was even proposed, to qualify as objections to ‘delays’ not yet proposed would provide defendants with another sword to use after the fact to overturn their convictions. This does not comport with the intent of section 103-5(a).
Cordell, 223 Ill. 2d at 391-92.

This means a defendant must make an objection to a delay each and every time a delay is proposed. A defendant cannot depend on one demand for trial made after an initial delay.

Qualified Objections

Thus, to qualify as an objection, there must be, first, a proposed delay and then a written or oral demand for trial by the defense.

While the amendment does not mandate any magic words constituting a demand for trial, it does require some affirmative statement in the record requesting a speedy trial.

The provisions of section 103-5 are to be liberally construed in favor of the defendant, and *** the State cannot improperly manipulate criminal proceedings or purposefully evade the operation of the section’s provisions.

Makes It Easer To Count Days

The whole point of the amended statute is to remove any need for courts to scour the record to determine whether defense counsel implicitly or arguably agreed to a continuance.

Per, 725 ILCS 5/103-5(a), only an affirmative demand for trial, in writing or on the record, will do.

Sample Motion For A Speedy Trial

There’s no fancy way to demand a speedy trial. A motion for a speedy trial has to be in writing for misdemeanor cases, but it’s always a good idea to file a written motion for a speedy trial in felony cases as well.

It’s called making a written “demand”. See the sample motion below:

Download A Sample Motion For Speedy Trial…

Here’s a sample motion for speedy trial (demand for speedy trial).

Download Sample Motion

Download This Sample Motion Now.

The Constitutional Right To A Speedy Trial

The speedy trial definition includes a statutory right, largely described above AND a constitutional right. The constitutional and statutory rights to a speedy trial are not necessarily coextensive.

When considering whether a defendant’s constitutional right to a speedy trial has been violated, there are four factors that may be considered and balanced:

The length of the delay
The reasons for the delay
The defendant’s assertion of the right to a speedy trial, and
The prejudice to the defendant.

The length of the delay is considered the triggering mechanism for considerations of the other factors, but the length of delay is necessarily dependent on the peculiar circumstances of the case, and not on any fixed period of time.

Deliberate delays are weighted heavily and negligence is weighted a little less heavily.

Finally, in assessing the prejudice factor, courts are to consider the interests of defendants that the speedy-trial right was designed to protect:

(1) Preventing undue and oppressive incarceration,
(2) 10 minimizing the anxiety and concern that accompanies public accusations, and
(3) Limiting the possibility that the defense will be impaired.

What Does Speedy Trial Mean?

lawyer in front of a clock - right to a speedy trial — What does a speedy trial mean?

So what does it mean to have a speedy trial?

It’s a trial right of the accused. But just like ever other right it can be waived. Although, in court we talk about a “speedy trial” that does not actually mean an accused is going to get a speedy trial.

One must take special care to follow the rules to correctly invoke the right and not purposely or inadvertently waive this right.

There may be times when it is advantageous to not invoke your right to a speedy trial so that you and your defense attorney have enough time to litigate other issues.

Right To A Speedy Trial | How A Speedy Trial Works In Illinois