Barker's Balancing Approach

Barker's Balancing Approach

Incorporation settles that the speedy-trial guarantee binds state courts, yet the text of the Sixth Amendment says only that the accused enjoys the right and never says how long a prosecution may take.¹ Before Barker v. Wingo, the Supreme Court had dealt with the right only on infrequent occasions and had never set out criteria for deciding when it is violated.² The Court answered with a case-by-case balancing test in which the length of delay, the reason for it, the defendant's assertion of the right, and the prejudice to the defendant are weighed together, and no single factor is necessary or sufficient.³ The choice makes sense only against the two simpler rules the Court turned down, and the facts of the case show why each would have misfired.

The facts supply the running example for the rest of the speedy-trial discussion. In July 1958 an elderly couple was beaten to death in Christian County, Kentucky, and two suspects, Silas Manning and Willie Barker, were arrested soon afterward and indicted together in September.⁴ The Commonwealth had the stronger case against Manning and believed it could not convict Barker unless Manning testified against him, but Manning was understandably unwilling to incriminate himself. The prosecution's answer was to try Manning first, so that a conviction would remove the self-incrimination problem, and on the day Manning's trial began it obtained the first of sixteen continuances, which are court-ordered postponements, of Barker's trial.⁵ Manning's own prosecution ran through a conviction reversed on appeal and a hung jury before he was finally convicted of both murders, so the postponements recurred term after term for roughly four years.⁶

Barker's own conduct matters as much as the Commonwealth's. He spent ten months in jail before obtaining release on bond, remained free in the community afterward, and raised no objection to the first eleven continuances.⁷ When the Commonwealth asked for a twelfth in February 1962, his counsel moved to dismiss the indictment, and the motion was denied. Later continuances based on the illness of a key prosecution witness were granted over his objection, and trial finally came just over five years after the indictment, with Manning as the chief prosecution witness. Barker was convicted and sentenced to life.⁸

The first rule the Court refused was a fixed time limit, such as trial within six months of arrest. The Court held that a rigid period goes further than the Constitution requires.⁹ Two features of the right explain that refusal. The right is vaguer than the other trial rights, because no one can say with precision how long is too long in a system where justice is supposed to be swift but deliberate.¹⁰ The tolerable delay also depends on the case, since an ordinary street crime allows much less time than a serious, complex conspiracy prosecution, so a number sensible for a conspiracy would let an ordinary street case sit far too long, and a number sensible for the street case would condemn nearly every conspiracy trial.¹¹ Choosing a number is a policy judgment of the kind legislatures and rulemakers make, and many do: most jurisdictions, including the federal system, have speedy-trial statutes that measure a violation by the lapse of a set period after subtracting excludable time.¹² Those deadlines are a separate source of law, and the constitutional right is left to be applied case by case.

The second rule the Court refused was the demand-waiver rule, under which a defendant who fails to demand a speedy trial waives the right for good.¹³ Ordinary waiver doctrine for fundamental rights requires a knowing and voluntary relinquishment, and it places on the prosecution the burden of showing one.¹⁴ Those cases involve rights that must be exercised at a specific time or under clearly identifiable circumstances, such as pleading not guilty, demanding a jury, invoking the privilege against self-incrimination, or asking for counsel. The speedy-trial right has no such moment. It is unusually uncertain when and how the right must be asserted, and no fixed point in the criminal process lets the State put the defendant to a choice between exercising and waiving it.¹⁵ Inferring a knowing surrender from silence would therefore apply a waiver rule to a right that gives the defendant no clear occasion to speak, which the Court found insensitive to a right it had called fundamental.

Rejecting waiver by silence does not make the defendant's conduct irrelevant, because the speedy-trial right differs from rights such as counsel or freedom from compelled self-incrimination in one respect: deprivation of it may work to the accused's advantage.¹⁶ As time passes, witnesses become unavailable or forget, and because the prosecution carries the burden of proof, that erosion can weaken the prosecution's case. Delay is a familiar defense tactic, so a court cannot assume that a defendant who stays quiet wants a prompt trial.¹⁷ A rule that ignored the defendant's behavior entirely would reward a defendant who quietly benefits from postponement and then claims the right once the prosecution's evidence has gone stale.

The Court's resolution counts the defendant's assertion or failure to assert the right as one factor in the inquiry, with the conduct of both the prosecution and the defendant weighed.¹⁸ That formulation leaves the trial court room to respond to circumstances. A defendant who knowingly stays silent stands differently from one whose lawyer acquiesced in a long delay without adequately informing the client, and differently again from one who had no appointed counsel, and the court may weigh the frequency and force of objections rather than giving much weight to a purely pro forma one.¹⁹ The primary burden stays on courts and prosecutors to see that cases are brought to trial, although delay attributable to the defendant can still be treated as a waiver under ordinary waiver doctrine.²⁰

Barker's own record shows the factor at work. He objected to none of the first eleven continuances, was free on bond for most of the wait, and pursued a strategy of awaiting the outcome of his accomplice's prosecution. His silence did not forfeit the early years, yet it played a large role in sustaining much of the five-year delay.²¹ An argument built on a fixed number of months, or on silence as a forfeiture, rests on one of the two rules the Court refused, and it fails as framed however long the delay was.²²

The word balancing describes a judgment about the whole situation, and no factor works as a required element: none is necessary or sufficient, and all are considered together with other relevant circumstances.²³ The Court identified four factors: the length of the delay, the reason for it, the defendant's assertion of the right, and prejudice to the defendant.²⁴ Because a balancing test necessarily compels courts to proceed on an ad hoc basis, the Court could do little more than name the considerations rather than assign them fixed values.²⁵ The next sections take up first the question that must be answered before any factor can be applied, namely when the clock starts and which periods it measures, and then each factor in turn.