What is Speedy Trial and Should I Waive It?

If you don't waive your right to a speedy trial, the judge will set your case for trial within the speedy trial time period (90 days for a misdemeanor and 175 days for a felony). This time frame is often insufficient for your attorney to thoroughly prepare a defense to the case. The State has all of the evidence, access to witnesses, and resources to try the case in a very short time frame. The defense is limited in how it obtains information. Your attorney may have to take depositions, file motions, investigate, obtain evidence from the State. If all of these things are not accomplished within the time frame, you would have to go to trial without that information and evidence. This would benefit the prosecution.

Also, many cases involve negotiations. If the State has to prepare for a trial in a short amount of time, they are less likely to negotiate in good faith.

If you are not brought to trial within the time period and you have not waived your right:

• you may file a "Notice of Expiration of Speedy Trial Time," and

• no later than 5 days from the date you file the Notice of Expiration, the court shall hold a hearing on the notice and, unless the court finds one of the following, shall order that you be brought to trial within 10 days, and
  

• if you are not brought to trial within 10 days through no fault of your own, you can file a motion and the charges shall be forever discharged from the crime.
  

Although most people think that the case will simply be dismissed if not tried within the speedy trial time, as we see above, the State is given an additional l5 days to bring you to trial after you file a Notice of Expiration of Speedy Trial.

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Yes. You can demand a trial within 60 days of your arrest by filing a "Demand for Speedy Trial." Once you file your demand, no later than 5 days later, the court must place the case on the calendar and will set the trial date to begin no less than 5 days or more than 45 days from that date. So, the earliest you could have a trial from the date you file a "Demand for Speedy Trial" is in 10 days. If you have not been brought to trial within 50 days of the filing of the demand, the case would be dismissed.

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Filing a demand for speedy trial is risky. When you file your demand, you are telling the court that you are prepared for trial.

A demand for speedy trial shall be considered a pleading that the accused is available for trial, has diligently investigated the case, and is prepared or will be prepared for trial within 5 days.

So, if you file your demand thinking that the State won't be prepared, but on the morning of jury selection, the State announces it is ready for trial, you will have a tough time obtaining a continuance because you haven't received discovery or aren't prepared.

Very rarely will the State not be able to begin a trial within the allowable time frame. Some typical examples of when the State may not be able to prove their case within the time frame are: (1) when a witness who is the only one who can establish an element of the offense is unavailable, and (2) when evidence needed to establish an element of the offense has not and cannot be analyzed in time (i.e. drugs). The problem is that you won't know whether the State will be prepared or not. Most of the time, the State will scramble to be prepared for the trial.

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Yes. Prior to the expiration of speedy trial, the periods can be extended by:

• stipulation announced to the court or signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced

• written or recorded order of the court on the court's own motion or motion by either part in exceptional circumstances
  

• written or recorded order of the court with good cause shown by the accused

• written or recorded order of the court for a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearing on pretrial motions, for appeals by the state, for DNA testing ordered on the defendant's behalf upon defendant motion specifying the physical evidence to be tested and for trial of other pending criminal charges against the accused

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Exceptional circumstances, as determined by the judge, which would allow the speedy trial period to be extended are:

• unexpected illness, unexpected incapacity, or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial

• a showing by the state that the case is so unusual and so complex, because of the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate investigation or preparation within the periods of time established by this rule

• a showing by the state that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time

• a showing by the accused or the state of necessity for delay grounded on developments that could not have be anticipated and that materially will affect the trial

• a showing that a delay is necessary to accommodate a codefendant, when there is a reason not to sever the cases to proceed promptly with trial of the defendant, and
  

• a showing by the state that the accused has caused major delay or disruption of preparation of proceedings, as by preventing the attendance of witnesses or otherwise.

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Exceptional circumstances do not include:

• general congestion of the court's docket

• lack of diligent preparation

• failure to obtain available witnesses

• other avoidable or foreseeable delays.
  

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If the judge finds any of the following, the judge would deny your motion for discharge:

• a time extension has been ordered and that extension has not expired

• the failure to hold trial is attributable to the accused, a codefendant in the same trial or their counsel

• the accused was unavailable for trial
  

• the demand for speedy trial is invalid

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