Dickey v. Florida/Concurrence Harlan

Mr. Justice HARLAN, concurring.

I join the Court's opinion with the following reservation and comment.

I think that claims such as those of the petitioner in this case, arising out of a state proceeding, should be judged by the principles of procedural fairness required by the Due Process Clause of the Fourteenth Amendment, and not by 'incorporating' or 'absorbing' into the Fourteenth Amendment the 'speedy trial' provision of the Sixth Amendment. See my concurring opinion in Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (1967), and my separate opinion in Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 579, 21 L.Ed.2d 607 (1969). This reservation reflects the hope that some day the Court will return to adjudicating state criminal cases in accordance with the historic meaning of the Due Process Clause of the Fourteenth Amendment, see, e.g., my dissenting opinion in Duncan v. Louisiana, 391 U.S. 145, 171, 88 S.Ct. 1444, 1458, 20 L.Ed.2d 491 (1968).

However, whether it be the Due Process Clause or the Sixth Amendment that is deemed to apply, I fully agree that petitioner's federal constitutional rights were violated by Florida's actions in this instance.

Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring.

* In Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), this Court held that the Sixth Amendment standards governing speedy trial are made obligatory on the States by the Fourteenth Amendment Due Process Clause. Petitioner's prosecution, however, began in July 1960, nearly seven years before our decision in Klopfer. Accordingly, assuming, arguendo, that Klopfer is not retroactive, the question here is whether petitioner's trial was unconstitutionally delayed under the test of due process applicable to the States prior to Klopfer. See, e.g., Beasley v. Pitchess, 358 F.2d 706 (C.A.9th Cir. 1966); United States ex rel. Von Cseh v. Fay, 313 F.2d 620 (C.A.2d Cir. 1963); Germany v. Hudspeth, 209 F.2d 15, 18-19 (C.A.10th Cir. 1954). Petitioner has established his claim. Although the Florida police secured an arrest warrant in 1960 charging petitioner with armed robbery, he was not tried until 1968; he demanded a speedy trial as early as 1962; he has shown that he was substantially prejudiced by the delay; and the State, it appears, was deliberately slow in prosecuting him. Thus, I join the Court's opinion.

I do not read the Court's opinion as deciding that in post-Klopfer cases (1) the defendant can challenge only delay occurring after his arrest; (2) he is not entitled to a speedy trial unless he demands it at the time of the delay; (3) he must prove actual prejudice, or (4) the delay must be deliberately caused by the government. It is timely to note that the Court has as yet given scant attention to these and other questions essential to the definition of the speedy-trial guarantee. Before Klopfer, only three of our opinions dealt at any length with the right, and each was decided with little analysis of its scope and content. See Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950 (1905); Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). Klopfer itself attempted no extensive analysis; nor did our later decision, Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). And today we do not consider the effect of the application of the Speedy Trial Clause to the States. Thus, although we said in Klopfer that the right to a speedy trial is 'one of the most basic rights preserved by our Constitution,' 386 U.S., at 226, 87 S.Ct., at 995, a guarantee 'as fundamental as any of the rights secured by the Sixth Amendment,' id., at 223, 87 S.Ct., at 993, we have yet even to trace its contours. Accordingly, I think it appropriate to point out certain of the major problems that courts must consider in defining the speedy-trial guarantee.

In my view, there are two groups of issues to be met in interpreting the right: first, those concerned with when during the criminal process the speedy-trial guarantee attaches, and second, those concerned with the criteria by which to judge the constitutionality of the delays to which the right does attach. These questions, of course, must be answered in light of the purposes of the Speedy Trial Clause. The evils at which the Clause is directed are readily identified. It is intended to spare an accused those penalties and disabilities-incompatible with the presumption of innocence-that may spring from delay in the criminal process. The Court recognized in Ewell, supra, 383 U.S. at 120, 86 S.Ct. at 776, that the speedy-trial right 'is an important safeguard to prevent undue and oppressive incarceration prior to trial.' We also recognized in Ewell that a speedy trial is intended 'to minimize anxiety and concern accompanying public accusation.' Ibid. As we observed in Klopfer, supra, 386 U.S. at 222, 87 S.Ct. at 993, lengthy prosecution may subject an accused to 'public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes.'

These disabilities, singly or in league, can impair the accused's ability to mount a defense. The passage of time by itself, moreover, may dangerously reduce his capacity to counter the prosecution's charges. Witnesses and physical evidence may be lost; the defendant may be unable to obtain witnesses and physical evidence yet available. His own memory and the memories of his witnesses may fade. Some defenses, such as insanity, are likely to become more difficult to sustain; as one court has stated, '(p)assage of time makes proof of any fact more difficult. When the fact at issue is as subtle as a mental state, the difficulty is immeasurably enhanced.' Williams v. United States, 102 U.S.App.D.C. 51, 55, 250 F.2d 19, 23 (1957). See also Ewell, supra, 383 U.S. at 120, 86 S.Ct. at 776.

The Speedy Trial Clause protects societal interests, as well as those of the accused. The public is concerned with the effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Just as delay may impair the ability of the accused to defend himself, so it may reduce the capacity of the government to prove its case. See Ponzi v. Fessenden, 258 U.S. 254, 264, 42 S.Ct. 309, 312, 66 L.Ed. 607 (1922). Moreover, while awaiting trial, an accused who is at large may become a fugitive from justice or commit other criminal acts. And the greater the lapse of time between commission of an offense and the conviction of the offender, the less the deterrent value of his conviction.

Deliberate governmental delay in the hope of obtaining an advantage over the accused is not unknown. In such a circumstance, the fair administration of criminal justice is imperiled. The Speedy Trial Clause then serves the public interest by penalizing official abuse of the criminal process and discouraging official lawlessness. See, e.g., United States v. Provoo, 17 F.R.D. 183 (D.C.Md.), aff'd per curiam, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955). Thus the guarantee protects our common interest that government prosecute, not persecute, those whom it accuses of crime.

Against this background of the purposes of the speedy-trial safeguard, I turn to the question of when during the criminal process the right attaches. A criminal prosecution has many stages, and delay may occur during or between any of them. It may take place at the beginning of the process: between the time at which the government decides to prosecute a man and has sufficient evidence to proceed against him and the actual time of his arrest or indictment. Or it may occur, for instance, between arrest and indictment, during trial, or between trial and sentencing.

Authorities agree that delay between indictment and trial is subject to the speedy-trial safeguard, e.g., Lucas v. United States, 363 F.2d 500, 502 (C.A.9th Cir. 1966), and there is substantial authority that the right attaches upon arrest, e.g., Hardy v. United States, 119 U.S.App.D.C. 364, 365, 343 F.2d 233, 234 (1964). But see, e.g., Reece v. United States, 337 F.2d 852 (C.A.5th Cir. 1964). Similarly, it has been generally held that the Speedy Trial Clause applies to intervals between separate indictments or between separate trials on the same charge, e.g., Williams v. United States, supra. This Court has assumed, arguendo, but has not decided, that the interval between judgment and sentencing is governed by the clause, Pollard v. United States, supra, 352 U.S. at 361, 77 S.Ct. at 485; see also Welsh v. United States, 348 F.2d 885 (C.A.6th Cir. 1965). I have found no cases dealing with delay during the trial. With some exceptions, it has been held that the right to speedy trial does not apply to delays that occur before the defendant's arrest or indictment, e.g., Parker v. United States, 252 F.2d 680, 681 (C.A.6th Cir. 1958); Terlikowski v. United States, 379 F.2d 501, 503-504 (C.A.8th Cir. 1967).

Does the speedy-trial guarantee apply to all delays between a defendant's arrest and his sentencing? The view that it does is not without support in the wording of the Sixth Amendment. The Consitution says that an 'accused' is entitled to a speedy trial '(i)n all criminal prosecutions.' Can it be that one becomes an 'accused' only after he is indicted, or that the Sixth Amendment subdivides 'prosecution' into various stages, granting the right to speedy trial in some and withholding it in others? In related contexts involving other clauses of the Sixth Amendment, we have held that the 'prosecution' of an 'accused' can begin before his indictment; for example, in Escobedo v. Illinois, 378 U.S. 478, 490, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977 (1964), we spoke of the time when 'investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect.' And as regards realization of the purposes of the Speedy Trial Clause, the possibility of harm to interests protected by the clause is certainly great whenever delay occurs after arrest.

The applicability of the safeguard to delays occurring before arrest or indictment poses a more difficult question. A few courts have reasoned that the language of the Sixth Amendment precludes its application then, and prior to arrest or indictment not all of the interests protected by the right are threatened. The accused suffers no preconviction penalty, since his freedom is not impaired by actual imprisonment or conditioned release. He suffers none of the personal or social disabilities that flow from public accusation. And, so far as society's interest in the effective prosecution of criminal cases is concerned, delay on the government's part need not impair its ability to prove the defendant's guilt beyond a reasonable doubt.

Deliberate governmental delay designed to harm the accused, however, constitutes abuse of the criminal process. It lessens the deterrent value of any conviction obtained. And it very probably reduces the capacity of the accused to defend himself; unlike the prosecution, he may remain unaware that charges are pending and thus fail to take steps necessary to his defense. Accordingly, some of the interests protected by the Speedy Trial Clause can be threatened by delay prior to arrest or indictment. Thus, it may be that for the purposes of the clause to be fully realized, it must apply to any delay in the criminal process that occurs after the government decides to prosecute and has sufficient evidence for arrest or indictment.

Some lower courts have held that the applicable statute of limitations provides the exclusive control over governmental delay prior to arrest or indictment. See, E.g., United States v. Panczko, 367 F.2d 737, 739 (C.A.7th Cir. 1966), which found delay in bringing charges 'limited only by the statute of limitations.' We said in Ewell, supra, 383 U.S. at 122, 86 S.Ct. at 777, that 'the applicable statute of limitations * *  * is usually considered the primary guarantee against bringing overly stale criminal charges.' Such legislative judgments are clearly entitled to great weight in determining what constitutes unreasonable delay. But for some crimes there is no statute of limitations. None exists, for example, in prosecutions of federal capital offenses, 18 U.S.C. § 3281. And, even when there is an applicable statute, its limits are subject to change at the will of the legislature, and they are not necessarily co-extensive with the limits set by the Speedy Trial Clause. Judge Wright, concurring in the result in Nickens v. United States, 116 U.S.App.D.C. 338, 343 n. 4, 323 F.2d 808, 813 n. 4 (1963), observed: 'The legislature is free to implement the (speedy-trial) right and to provide protections greater than the constitutional right. But the minimum right of the accused to a speedy trial is preserved by the command of the Sixth Amendment, whatever the terms of the statute.' Cf. Nickens, supra, at 340 n. 2, 323 F.2d, at 810 n. 2.

What are the criteria to be used in judging the constitutionality of those delays to which the safeguard applies? This Court has stated that '(t)he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.' Beavers v. Haubert, supra, 198 U.S. at 87, 25 S.Ct. at 576. We have also observed that '(w)hile justice should be administered with dispatch, the essential ingredient is orderly expedition and not mere speed.' Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041 (1959). It appears that consideration must be given to at least three basic factors in judging the reasonableness of a particular delay: the source of the delay, the reasons for it, and whether the delay prejudiced interests protected by the Speedy Trial Clause.

A defendant may be disentitled to the speedy-trial safeguard in the case of a delay for which he has, or shares, responsibility. It has been held, for example, that an accused cannot sustain a speedy-trial claim when delay results from his being a fugitive from justice, making dilatory pleadings or motions, failing to object when a continuance is granted the government, or from delay occasioned by his incompetence to stand trial, e.g., United States v. Davis, 365 F.2d 251, 255 (C.A.6th Cir. 1966).

It has also been held that the defendant's failure, upon being confronted with delay, to demand a speedy trial justifies the denial of his claim. In other words, his silence-or inaction has been construed as an implied relinquishment of the right to speedy trial, e.g., United States v. Lustman, 258 F.2d 475, 478 (C.A.2d Cir. 1958). The view that an accused loses his right to a speedy trial by silence or inaction is open to question on at least three grounds. First, it rests on what may be an unrealistic understanding of the effect of delay. One court in explaining the 'demand' rule stated that it 'is based on the almost universal experience that delay in criminal cases is welcomed by defendants as it usually operation in their favor.' United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (C.A.2d Cir. 1963). It is true that delay may be welcomed by an accused, especially if he greatly fears the possible consequences of his trial. See United States v. Chase, 135 F.Supp. 230, 233 (D.C.N.D.Ill.1955). But an accused may just as easily object to delay for its prolongation of the time in which he must live in uncertainty, carrying the emotional and financial burdens of accusation, and possessing the conditioned freedom of a potential felon. Moreover, the passage of time may threaten the ability of both the defendant and the government to prepare and present a complete case; in this regard, delay does not inherently benefit the accused any more than it does the prosecution.

Second, the equation of silence or inaction, with waiver is a fiction that has been categorically rejected by this Court when other fundamental rights are at stake. Over 30 years ago in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), we defined 'waiver' as 'an intentional relinquishment or abandonment of a known right or privilege,' We have made clear that courts should 'indulge every reasonable presumption against waiver,' Aetna Ins. Co. v. Kennedy to use of Bogash, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177 (1937), and that they should 'not presume acquiescence in the loss of fundamental rights.' Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U.S. 292, 307, 57 S.Ct. 724, 731, 81 L.Ed. 1093 (1937). In Klopfer, supra, 386 U.S. at 223, 87 S.Ct. at 993, we held that the right to a speedy trial 'is as fundamental as any of the rights secured by the Sixth Amendment.' It is a safeguard of the interests of both the accused and the community as a whole. Thus, can it be that affirmative action by an accused is required to preserve-rather than to waive-the right?

Third, it is possible that the implication of waiver from silence or inaction misallocates the burden of ensuring a speedy trial. The accused has no duty to bring on his trial. He is presumed innocent until proved guilty; arguably, he should be presumed to wish to exercise his right to be tried quickly, unless he affirmatively accepts delay. The government, on the other hand, would seem to have a responsibility to get on with the prosecution, both out of fairness to the accused and to protect the community interests in a speedy trial. Judge Weinfeld of the District Court for the Southern District of New York has observed, 'I do not conceive it to be the duty of a defendant to press that he be prosecuted upon an indictment under penalty of waiving his right to a speedy trial if he fails to do so. It is the duty of the public prosecutor, not only to prosecute those charged with crime, but also to observe the constitutional mandate guaranteeing a speedy trial. If a prosecutor fails to do so, the defendant cannot be held to have waived his constitutional right to a speedy trial.' United States v. Dillon, 183 F.Supp. 541, 543 (1960).

If the defendant does not cause the delay of his prosecution, the responsibility for it will almost always rest with one or another governmental authority. The police and prosecutor are not the only governmental officials whose conduct is governed by the Speedy Trial Clause; it covers that of court personnel as well, e.g., Pollard v. United States, supra; Marshal v. United States, 119 U.S.App.D.C. 83, 337 F.2d 119 (1964). And the public officials responsible for delay may not even be associated with law enforcement agencies or the courts. Delay, for example, may spring from a refusal by other branches of government to provide these agencies and the judiciary with the resources necessary for speedy trials. See, e.g., King v. United States, 105 U.S.App.D.C. 193, 195, 265 F.2d 567, 569 (1959).

When is governmental delay reasonable? Clearly, a deliberate attempt by the government to use delay to harm the accused, or governmental delay that is 'purposeful or oppressive,' is unjustifiable. Pollard v. United States, supra, 352 U.S., at 361, 77 S.Ct., at 485. See also United States v. Provoo, supra. The same may be true of any governmental delay that is unnecessary, whether intentional or negligent in origin. A negligent failure by the government to ensure speedy trial is virtually as damaging to the interests protected by the right as an intentional failure; when negligence is the cause, the only interest necessarily unaffected is our common concern to prevent deliberate misuse of the criminal process by public officials. Thus the crucial question in determining the legitimacy of governmental delay may be whether it might reasonably have been avoided-whether it was unnecessary. To determine the necessity for governmental delay, it would seem important to consider, on the one hand, the intrinsic importance of the reason for the delay, and, on the other, the length of the delay and its potential for prejudice to interests protected by the speedy-trial safeguard. For a trivial objective, almost any delay could be reasonably avoided. Similarly, lengthy delay, even in the interest of realizing an important objective, would be suspect. Perhaps the most important reason for the delay of one criminal prosecution is to permit the prosecution of other criminal cases that have been in process longer than the case delayed. But surely even this objective cannot justify interminable interruption of a prosecution.

Finally, what is the role of prejudice in speedy-trial determinations? The discharge of a defendant for denial of a speedy trial is a drastic step, justifiable only when further proceedings against him would harm the interests protected by the Speedy Trial Clause. Thus it is unlikely that a prosecution must be ended simply because the government has delayed unnecessarily, without the agreement of the accused. The courts below, however, are divided in their conclusions regarding prejudice. One court has stated that 'we think that a showing of prejudice is not required when a criminal defendant is asserting a constitutional right under the Sixth Amendment,' United States v. Lustman, 258 F.2d 475, 477-478 (C.A.2d Cir. 1958). Some have held that prejudice may be assumed after lengthy delays, e.g., Hedgepeth v. United States, 124 U.S.App.D.C. 291, 294 and n. 3, 364 F.2d 684, 687 and n. 3 (1966). Others have insisted that its existence be shown by the defendant, e.g., United States v. Jackson, 369 F.2d 936, 939 (C.A.4th Cir. 1966), though some courts have shifted the burden of proof to the government after long delay, e.g., Williams v. United States, 102 U.S.App.D.C. 51, 250 F.2d 19, 21-22 (C.A.D.C. Cir. 1957).

Although prejudice seems to be an essential element of speedy-trial violations, it does not follow that prejudice-or its absence, if the burden of proof is on the government-can be satisfactorily shown in most cases. Certainly, as the present case indicates, it can be established in some instances. It is obvious, for example, if the accused has been imprisoned for a lengthy period awaiting trial, or if the government has delayed in clear bad faith. But concrete evidence of prejudice is often not at hand. Even if it is possible to show that witnesses and documents, once present, are now unavailable, proving their materiality is more difficult. And it borders on the impossible to measure the cost of delay in terms of the dimmed memories of the parties and available witnesses. As was stated in Ross v. United States, 121 U.S.App.D.C. 233, 238, 349 F.2d 210, 215 (1965): '(The defendant's) failure of memory and his inability to reconstruct what he did not remember virtually precluded his showing in what respects his defense might have been more successful if the delay had been shorter. * *  * In a very real sense, the extent to which he was prejudiced by the Government's delay is evidenced by the difficulty he encountered in establishing with particularity the elements of that prejudice.' Similarly, there is usually little chance of conclusively showing the harm sustained by an accused as a result of public accusation. One commentator has stated that '(t)here is no way of proving the prejudice to the accused which occurs outside the courtroom * *  * the public suspicion, the servering of family and social ties, and the personal anxiety.' Note, The Right to a Speedy Criminal Trial, 57 Col.L.Rev. 864. Nor, of course, is there any ready way of establishing the prejudice to community interests from delay.

Despite the difficulties of proving, or disproving, actual harm in most cases, it seems that inherent in prosecutorial delay is 'potential substantial prejudice,' United States v. Wade, 388 U.S. 218, 227, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967), to the interests protected by the Speedy Trial Clause. The speedy-trial safeguard is premised upon the reality that fundamental unfairness is likely in overlong prosecutions. We said in Ewell, supra, 383 U.S. at 120, 86 S.Ct. at 776, that the guarantee of a speedy trial 'is an important safeguard * *  * to limit the possibilities that long delay will impair the ability of an accused to defend himself,' and Judge Frankel of the District Court for the Southern District of New York has stated that 'prejudice may fairly be presumed simply because everyone knows that memories fade, evidence is lost, and the burden of anxiety upon any criminal defendant increases with the passing months and years.' United States v. Mann, 291 F.Supp. 268, 271 (1968).

Within the context of Sixth Amendment rights, the defendant generally does not have to show that he was prejudiced by the denial of counsel, confrontation, public trial, and impartial jury, knowledge of the charges against him, trial in the district where the crime was committed, or compulsory process. Because potential substantial prejudice inheres in the denial of any of these safeguards, prejudice is usually assumed when any of them is shown to have been denied. Because concrete evidence that their denial caused the defendant substantial prejudice is often unavailable, prejudice must be assumed, or constitutional rights will be denied without remedy. Prejudice is an issue, as a rule, only if the government wishes to argue harmless error. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). When the Sixth Amendment right to speedy trial is at stake, it may be equally realistic and necessary to assume prejudice once the accused shows that he was denied a rapid prosecution.

The difficulty in such an approach, of course, lies in determining how long a prosecution must be delayed before prejudice is assumed. It is likely that generalized standards would have to be developed to indicate when during the course of a delay there arises a probability of substantial prejudice. Until delay exceeds that point, the burden most probably would remain on the accused to show that he was actually harmed. Once, however, delay exceeds that point, prejudice would cease to be an issue, unless the government wished to argue harmless error. Though one temporal standard could very likely govern most prosecutions, account would need to be taken of those types of cases that diverge from the norm.

Thus, it may be that an accused makes out a prima facie case of denial of speedy trial by showing that his prosecution was delayed beyond the point at which a probability of prejudice arose and that he was not responsible for the delay, and by alleging that the government might reasonably have avoided it. Arguably the burden should then shift to the government to establish, if possible, that the delay was necessary by showing that the reason for it was of sufficient importance to justify the time lost. General standards could be developed by determining, first, the weight to be given various grounds for delay and, then, how great a delay is justifiable for each. Some grounds, such as an attempt to gain an advantage over the accused, would have no value; legitimate reasons might have different weights, an attempt to locate a minor prosecution witness having less justificatory force than an attempt to locate a witness on whose testimony the prosecution hinges.

These comments provide no definitive answers. I make them only to indicate that many-if not most-of the basic questions about the scope and context of the speedy-trial guarantee remain to be resolved. Arguments of some force can be made that the guarantee attaches as soon as the government decides to prosecute and has sufficient evidence for arrest or indictment; similar arguments exist that an accused does not lose his right to a speedy trial by silence or inaction, that governmental delay that might reasonably have been avoided is unjustifiable, and that prejudice ceases to be an issue in speedy-trial cases once the delay has been sufficiently long to raise a probability of substantial prejudice. Insofar as these arguments are meritorious, they suggest that the speedy-trial guarantee should receive a more hospitable interpretation than it has yet been accorded.