For the Defense - Vol. 6, Issue 1 - 9

being notified of his indictment. At the outset, the
court recognized the language in Barker, that the
fundamental right to a speedy trial is unique in its
uncertainty as to when and under what circumstances
it must be asserted or may be deemed waived. The
Court recognized that such a rigid approach would
be counter-intuitive when such a fundamental right
is at stake. However, the Court also recognized that
the defendant has some affirmative duty to assert his
rights and to do so in a timely fashion.27
At a minimum, the defense should be mindful to
avoid waiver of this right by a failure to demand.
Although a defendant's failure to appear is beyond
defense counsel's control, clearly and unequivocally
asserting a defendant's right to a speedy trial is
our responsibility. This can be accomplished by not
consenting to Commonwealth postponements, placing
the objection to postponements on the record either
verbally or in writing, seeking the first possible date
when postponements cannot be avoided or are
granted over our objections, and filing a motion to
dismiss on speedy trial grounds as early as possible.
Finally, although the Pennsylvania Supreme Court has
suspended Rule 600, filing motions under the same will
indicate that the defendant is demanding his right to a
speedy trial for constitutional purposes as well.

Prejudice
Generally, a defendant must always substantiate
that actual prejudice suffered as a consequence
of the delay.28 Where prejudice cannot be
presumed, the courts will consider three interests
of the defendant: (1) preventing oppressive pretrial
incarceration; (2) minimizing the accused's anxiety
and concern; and (3) limiting the impairment of the
defense.29 When balancing the factors of the Barker
test, the degree of the actual prejudice to the
defendant must be weighed against the delay to
determine if there is a speedy trial right violation.30

a. Oppressive Incarceration
	
The first interest protected by the Sixth Amendment
is to prevent oppressive incarceration. Pretrial
incarceration comes with many disadvantages as
explained in Barker,
The time spent in jail awaiting trial has a
detrimental impact on the individual. It often
means loss of a job; it disrupts family life;
and it enforces idleness. ... Moreover, if a
defendant is locked up, he is hindered in his
ability to gather evidence, contact witnesses,
or otherwise prepare his defense. Imposing
those consequences on anyone who has not

yet been convicted is serious. ... Finally, even
if an accused is not incarcerated prior to trial,
he is still disadvantaged by restraints on his
liberty and by living under a cloud of anxiety,
suspicion, and often hostility.31

b. Minimizing Anxiety and Concern
The Sixth Amendment additionally protects against
the threat of delay causing a defendant anxiety and
concern. However, " vague allegations of anxiety are
insufficient " to show prejudice.32 In United States v.
Dreyer,33 the court held that a defendant must show
that his anxiety extended beyond that which " is
inevitable in a criminal case. " 34

c. Impairment of the Defense
This is the most serious of the factors because
" the inability of a defendant adequately to properly
prepare his case for trial skews the fairness of the
entire system. " 35 In order to prove a case of specific
prejudice to the defense, a defendant " must prove
(1) impairment of witnesses' memories; (2) loss of
evidence; (3) loss of witnesses; or (4) other specifically
articulable facts representing substantial interference
with his ability to conduct a defense. " 36 The protections
of the speedy trial right will intervene only " when the
loss of witnesses or evidence fundamentally impairs the
process by which guilt or innocence is determined. " 37
Although the defendant may be able to show a
favorable witness has lost his/her memory of past events
due to the delay, courts may find that their vague or
lost memory does not harm the process of determining
guilt or innocence.38 For example, a court may reason
that a witness is unable to remember because they were
not able to observe the incident when it happened;
the witness's inconsistent testimony is their attempt
to explain prior testimony; and that the vague or lost
memory of a witness bolstered the defense. Courts will
examine the loss of evidence in a case-by-case basis to
determine if it substantially interferes with the process
of determining guilt or innocence.39 A defendant will
only be successful if they explain how the lost evidence
prejudiced their defense.40 A conclusory statement will
be insufficient.41
Courts will look at whether the pre-trial delay
caused the witness's unavailability.42 In Miskovitch,
a defendant, who was not tried for more than five
years, did not suffer prejudice due to the death of
his alibi witness.43 The Superior Court agreed with
Commonwealth's argument that " it cannot be said
that the witness was 'lost' as a result of the delay in
bringing the case to trial " since the alibi witness died
eight months after the filing of the criminal complaint

Vol. 6, Issue 1 l For The Defense

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For the Defense - Vol. 6, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 1
