Under the 6th Amendment of the United States Constitution, citizens accused of a crime have the right to a speedy trial. This also holds true for the U.S. military; Article 10 of the Uniform Code of Military Justice (UCMJ) codifies this right.
When a co-defendant is tried before the defendant, appellate courts generally do not find that this constitutes a violation. But the existence of a speedy trial violation is a question of law for the courts, which often finds that there was good cause for the delay. (Some individuals have spent almost a year in pretrial confinement without it being considered a violation.)
Factors for a Violation of the 6th Amendment
In deciding whether or not the 6th Amendment right to a speedy trial has been violated, military courts take four factors into consideration:
- The length of the delay;
- The reason for the delay;
- Whether the accused demanded a speedy trial; and
- Whether it caused any prejudice to the accused (e.g. the loss of evidence due to the delay).
When the case is dismissed, it is usually done so without prejudice. The government can then release the defendant from any confinement and can re-file charges.
Under Article 10 of the UCMJ, when an accused person is put into pretrial confinement, they must be informed of the charges, be brought to trial, or have the case dismissed, steps must be taken immediately.
A More Demanding Standard
But while the military enjoys the right to a speedy trial, there are some differences between Article 10 of the UCMJ and the 6th Amendment – mainly their respective standards. Since the military does not have a bail system as the civilian sector does, its standard is more demanding.
In addition to Article 10, the rule for Courts-Martial 707 also creates the right to a speedy trial, requiring that the accused be brought to trial within 120 after pretrial confinement.
The right to a speedy trial can be waived for purposes of a guilty plea. The 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.
Motions to Dismiss Based Upon Violation of Speedy Trial
But regardless of where the military right to a speedy trial stems from, the motion to dismiss based upon a violation of that right must be brought before the court-martial has adjourned and must be waived by a guilty plea. The government retains the burden of persuasion once an issue has been raised.
If charges are dismissed or a mistrial is granted, the speedy trial clock is reset to begin on the:
- Date of dismissal in cases where the accused remains in pretrial restraint;
- Date of mistrial; or
- Earlier of re-preferral or imposition of restraint for all other cases.
The sole remedy for a speedy trial violation is dismissal of the affected charges, with or without prejudice. According to R.C.M. 707(d), the charges must be dismissed with prejudice if the defendant’s constitutional right to a speedy trial was violated.
Where no constitutional violation is found, R.C.M. 707(d) explains that when deciding whether or not to dismiss the case with prejudice, the following factors should be considered:
- The seriousness of the offense;
- The facts and circumstances of the case that led to dismissal;
- The impact of re-prosecution on the administration of justice; and
- Any prejudice to the accused.
The Court-Martial Law Division of Aviso Law LLC Helps Military Members in Colorado Who Have Their Rights Violated
These rights in both the U.S. Constitution as well as in UCMJ Article 10 are implemented for specific reasons: to protect the accused from an unfair trial and to ease the burden on the court later on when evidence becomes unreliable. When your right to a speedy trial has been violated, you deserve an answer – and a solution! That’s why it is so important to consult with a knowledgeable and experienced military attorney.
If you are a military service member and are going through a criminal trial, the Court-Martial Law Division of Aviso Law LLC can help. We proudly serve our military members, who sacrifice so much for our country. To learn more or to schedule a free consultation, contact us today!