A New Speedy Trial Standard for Barker v Wingo: Reviving a Constitutional Remedy in an Age of Statutes

Abstract

The Sixth Amendment right to a speedy trial1 has ancient origins in the Assize of Clarendon (1166)2 and in the Magna Carta (1215).3 Many of the American colonies also recognized the right to a speedy trial.4 With such a venerable history, one would expect the speedy trial right to be as fundamental and extensive a guarantee as any of the other constitutionally recognized rights of the accused, such as the right to be secure against unreasonable searches and seizures5 or the right not to be compelled to incriminate oneself.6 Unfortunately, history has not played out in such a predictable fashion. In theory, the right to a speedy trial is fundamental.7 However, because the right is so amorphous, slippery,8 and generally difficult to vindicate,9 courts have not applied a consistent legal standard in speedy trial cases. Indeed, federal appellate courts' speedy trial rulings throughout this century have portrayed the right as somehow less fundamental and more contingent than other procedural safeguards in the Bill of