Waiver or assertion of right to speedy trial

Waiver or assertion of right to speedy trial

In considering strategy, counsel should consider the effect of delay. The Sixth Amendment provides that an accused shall enjoy the right to a speedy trial.FN30 In addition to the Fourteenth Amendment's incorporation of this right, most state constitutions and statutes also contain it. Therefore, the defendant can assert the right to a speedy trial and move for a dismissal if this right is not observed. Where the client is in custody, a speedy trial is extremely desirable. However, counsel may want to suggest that the client waive the right to speedy trial if that alternative is likely to produce a better result for the client than a speedy trial. Where the publicity against the client is extensive, a delay may be in his or her best interest.

Even if a motion to change venueFN31 is granted, a computer crime case of significance may involve publicity throughout the state it allegedly occurred in, if not throughout the country. In such situations, a delay would be advisable before beginning to try the case even in the other jurisdiction.

Counsel should also consider whether the prosecution is ready to go to trial. Often large offices are understaffed and may file cases before they have completed their investigation. A delay in such cases may work to the benefit of the prosecution rather than the defense. In such a scenario, the client's right to speedy trial should be asserted. The prosecution can usually establish good cause for a continuance if he or she is unprepared to proceed, but usually will be required to release the defendant if he or she is in custody.FN32