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:
160 Days If Out On Bail
Section 103-5(b) (out on bail) provides in relevant part:
Stopping The Speedy Trial 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:
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.
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.
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:
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.
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?
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.
- People v. Jones, 2018 IL App (1st) 151307 (March). Episode 478 (Duration 11:04) (Speedy Trial Differences Between In Custody and Out Of Custody Defendants)
- Episode 173 – People v. Lilly, 2016 IL App (3d) 140286 (April) (in custody defendant continues to file motions after his demand)
- Episode 205 – People v. Smith, 2016 IL App (3d) 140235 (June) (in custody defendant was held for more than one offense, state blows the speedy)
- Episode 241 – People v. Kilcauski, 2016 IL App (5th) 140526 (August) (state blows constitutional speedy trial right when they transfer defendant to Missouri)
- Episode 354 – People v. Pettis, 2017 IL App (4th) 151006 (May) (no speedy trial violation because the state properly relied on the DNA extension)
- Episode 384 – People v. Dalton, 2017 IL App (3d) 150213 (June) (speedy trial rights and compulsory joinder combine to reach a finding of speedy violation)
- Episode 404 – People v. Connors, 2017 IL App (1st) 162440 (September) (the due diligence to obtain evidence exception)