Dismissal with or without Prejudice under the Speedy Trial Act: A Proposed Interpretation

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1 Jour nal of C al L aw a nd C rimin olog y rimin Volume 68 Article 1 Issue 1 a r c h M Spring 1977 ismi ssal w ith or w ithout P rejudice unde D r the Speed rial Ac t: A P rop osed I y T etation nterpr M arc I. S teinb erg Follow this and additional works at: https://s cholarlycommon s.law.northwestern.edu/jclc Crimino Part of the Crimino logy Common s , and the , logy and Criminal s Criminal Law Common s Justice Common nded Citation Recomme r the S peedy Trial Act rejudice unde ithout P rg, Dismissal with or w Marc I. Steinbe : A Proposed Interpretation, 68 J . Crim. L. & Crimino logy 1 (1977) s. It has been accepted for n access by Northwestern University School of Law Scholarly Common ree and ope This Criminal Law is brought to you for f inclusion in J orthwestern University School of Law Scholarly Common s. ized editor of N logy by an author riminal Law and Crimino ournal of C

2 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 68, No. I Copyright @ 1977 University Northwestern by of School Law Printed U.S.A. in LAW CRIMINAL DISMISSAL WITH OR WITHOUT PREJUDICE THE UNDER SPEEDY TRIAL ACT: A INTERPRETATION PROPOSED I. MARC STEINBERG* I. INTRODUCTION trial to brought be an that accused requires within definite the time periods: filing of indict- Since the Federal Speedy Trial became Act' ment must information or thirty occur within effective on July has there 1975, 1, much been held be days must after arrest,' arraignment commentary criticizing both by Act the law re- 7 2 3 thereafter, days ten within of a upon and, plea view writers courts. the and of While many held follow- the within be guilty, must trial not these criticisms have merit, their great value is days.' ing sixty Hence, from of arrest, the date merely academic, the important and inquiry To within days.' 100 must be tried accused the confronting courts the how certain provisions is the this schedule, to to adhere the courts enable Act the of be should construed. This article time limits will above not become effective until shall propose suggested a interpretation of sec- 1979.10 1, July Until that time, three sets of time 3162(a)(1)(2), tion which has been acknowl- succession periods, imposed in yearly (the first commentators by edged to be the most contro- 4 on began July 1976), 1, will implement the versial section Act. the This of pro- provision l Act. ' vides the with court discretionary to authority Second, Act provides the a for number of case a dismiss either with or without prejudice justifiable delay periods which are to ex- be when the Act's time are periods violated.' computing in cluded statutory the limits. time In order better to comprehend provision this within the framework Act, of the one must be 61d. § 3161(b). thirty The day period time also aware of the sections. relevant the Act First, commences when the is defendant with a "served connection in summons with such charges." Id. 7 * A.B., University Michigan; of J.D., University of § 3161(c). 1d. California, Los Graduate Angeles; 1Id. LL.M. Fellow 9 states Some have enacted well as statutes Candidate, which Yale University; Member, California Bar. 18 1 §§ 3161-74 (1970). U.S.C. that require an be accused brought to trial within 2See, & Reed, Hansen e.g., The Speedy Trial of Act periods. time definite CODE PEN. CAL. e.g., See, 1382 § 1974 (West in Constitutional ILL. REV. Perspective, 1970); 38, §§ 47 Miss. ch. STAT. L.J. 103-05(a) 365, 415-17 (1973); IOwA (1976) CODE ANN. [hereinafter 795.2 cited & Hansen as §§ 795.1, (Supp. 1976); Reed]; That Kozinski, The Can of Worms: Speedy 62 Act, Trial MAss. ANN. LAWS (Supp. 72 § 277, ch. PA. 1976); 862-64 A.B.AJ. 862, (1976) [hereinafter cited Ko- as 19, tit. ANN. STAT. (Supp. 781 § WASH. 1976); REV. zinski]; Russ Mandelkern, & Speedy The Act Trial of CODE 10.37.020, 10.46.010 §§ 1976). (Supp. for Trap A 1974: Practitioner, the Unwary J. CRIM. 2 10 See § 18 3161(0(g). U.S.C. DEF. 27-29 (1976) 1, [hereinafter cited Russ & 11 as During the Id. year, first time the be- period Mandelkern]; Steinberg, Speedy to Right The Trial: tween arrest and indictment days, was sixty between Constitutional indictment and Right and arraignment Applicability its and between Trial Speedy the to ten days, Act 1974, 66 of L. CRIM. J. C. 229, & (1975) 235-39 arraignment and trial 180 For the days. second year, this time is forty-five limit cited [hereinafter Steinberg]. as days between arrest and indictment, days between ten indictment ar- e.g., See, ' and United States v. Tirasso, 1298 F.2d 532 (9th raignment, and where 1976), Cir. court the days 120 stated: between discour- is "It and arraignment aging highly that our refined complex and of trial. system During the third there allotted year, is thirty- five criminal justice between days is suddenly faced arrest indictment, ten with implementing and days between indictment a statute that drawn inartfully so and arraignment, is at eighty and as this one." Id. For 1301. days arraignment commentary between These trial. and on the Tirasso case, see transi- 44 time tional U.S.L.W. limits no sanctions carry 1161 (April 20, 1976); for Kozinski, supra noncompli- note ance. Presumably, though, courts still their retain 2, 864. at authority to dismiss Hansen See ' delay unnecessary for & Reed, supra note & 2, under at 415; Russ Rule Mandelkern, supra at note 24. 2, 48(b) of the Federal Rules of Criminal Procedure. See Hansen 18 3162(a)(1)(2). § U.S.C. & Reed, supra note 2, at 416.

3 68 [Vol. STEINBERG MARC I. delays Examples attributable are to the unavail- the defendant's the on dismissed is motion, Act's and anew commence periods time thus ability of the defendant or of an essential wit- 12 ness, caused delays proceedings other by in- incen- any with prosecution the to provide fail 1 3 volving the accused, delays and resulting from to increase and attention to de- efficiency tive 2 2 layed addition, cases. In without dismissal the granting a continuance of ends "the when harm ofjustice may inflict greater prejudice upon the of granting the by served contin- such uance outweigh the the interests best of since public accused than reindictment a delay, trial 4 trial.' speedy a in defendant the could the hiring and necessitate of new counsel and Third, section 3162(a)(1)(2) sanc- establishes the duplication and of proce- legal investigative severe tions dures, all at for monetary and noncompliance with the statutory psychological time 2 3 accused. the to harm commentator One has This limits. provision, will which become not effective uniform that "by merely imposing concluded 1, July until 1979,15 that provides if the applicable limits time (excluding al- periods for the disposition of criminal cases limits time without justifiable lowed for providing an effective sanction, adhered are delays) not [Con- to, charges made gress] has the out against an empty shell the defendant the of must be dis- 4 2 Act. Trial missed either without or with prejudice. Where Speedy there is excessive delay and between arrest in- meritorious However criticisms these may be, dictment, the dropped to be charges are Congress auto- nevertheless has and spoken, the cru- 6 delay matically.' If the arraign- between occurs cial issue questions what is be should considered ment however, trial, and ex- is defendant the by in determining the courts whether dis- a 1 7 pressly required to dismissal. for move Failure should missal without be with or prejudice. move to so entry to trial or prior of a plea of This article shall this to confront attempt issue nolo or guilty constitutes contendere a waiver and by raising proposing solutions to the fol- of inquiries: lowing (1) Is the district to right dismissal." the In determining court's deter- whether either a to case dismiss without or with mination to with or dismiss without prejudice a the prejudice, that requires section the court fact dis- court the May question of (2) or law? shall miss with prejudice among consider, even following though the others, there fac- been has tors: "the no speedy seriousness the of trial constitutional the offense; facts Are (3) violation? the factors and circumstances the which court led requires which case the of Act the to to the dismissal; consider in whether impact the and determining to dismiss of a reprosecution on without or with sole the prejudice relevant fac- administration the of this chapter and on the 9 tors? administration of justice."' review commentators Law have severely criti- turning Before to these questions, it is appro- cized section 3162(a)(1)(2) to failing for require to examine the purposes priate underlying the 2 0 dismissal prejudice, with observing the if that Trial Speedy the stated As Act. legislative in charges are without dismissed history, prejudice, the Act was the designed assist "to re- in accused ducing the crime danger and to subject is immediate recidivism of in rearrest and 2 reindictment. ' Further, a if formal accusation speedy requiring trials and strengthening by supervision the over persons released pending 3161(h)(3)(A). U.S.C. § 18 12 trial, other for and ... Congress's 23 purposes 13 Id. § 3161(h)(1). 14 Id. § 3161(h)(8)(A). approach reflects that view the dispo- swift the '5 U.S.C. 18 3163(c). § sition charges of criminal important an plays 6 3162(a)(1). § Id. 2 6 role in deterrence and rehabilitation. Some § 7 3162(a)(2). Id. commentators question the validity of this ap- 18Id. Id. " In § 3162(a)(1)(2). Act addition, the grants 22 18 U.S.C. § 3161(d); Russ & Mandelkern, supra the court discretionary authority and fines impose to note 27. at 2, 12, 13 Hansen & Reed, supra note 2, at 416; suspensions upon engage who Russ attorneys in deliberate & misconduct. 3162(b). more a For See § detailed analy- Mandelkern, note supra 27-28. 2, at 24 Russ & Mandelkern, supra note the sis of the provisions of supra Steinberg, see Act, 2, at 28. note 232-35. 2, at U.S. 1974 ' CODE CONG. 93d & AD. NEws, Cong., See " Reed,supra & note Hansen 2, at 415-17; Russ Sess., at 2d 7401. 26 Cf. Burger, The State of the Judiciay-1970, & Mandelkern, 1-2, supra note 2, at 27-29. 56 Federal Note, See " Specific Adopts System Parameters A.B.AJ. 929, (1970) 932 [hereinafter cited as for the Constitutional a to Right Speedy Trial- Trial Speedy Burger]. More recently, Justice The Chief stated that of Act 10 1974, REV. 449, RICH. L. U. "[tihe 456 (1976). swift criminal of disposition is a major charges

4 DISMISSAL WITH PREJUDICE OR WITHOUT 3 that asserting proach, punishment sup- severe and not merely is if erroneous it clearly only presses undesirable more effectively behavior the reached court have might appellate because 2 7 3 4 than punishment. certainty of mere swift is finding a It result. clearly is deemed A different apparent that society's purpose in de- bringing when, although there erroneous exists evidence entire the promptly reviewing fendants on court to support it, to trial is effectively served "the firm con- high a is the definite soon rate apprehension and left by only with evidence after the '' 9 2 3 . committed been has mistake a that viction of the alleged commission while offense, the deference, No such accorded to however, is the is arrest reality that may until not months occur or even result, As crime. the after years a the law is involved. of question a when court district court the appellate situation, is not In this effective as serve speedy that assertion trials court's judg- the lower by extent bound to any questiona- a is tools deterrent and rehabilitative 6 3 conclusions. own its draw to free is but ment ble one. In . whether a determining dismissal less be are Act the by should promoted Other purposes without or with Speedy prejudice under the debatable. One is to safeguards provide greater 30 for the Excessive defendant. individual delay consider, Trial Act, the court must among oth- ers, serious- the (1) factors: four following the accused to before trial may not only cause an psychological incur directly may but harm, ness also of the offense, (2) the facts and circum- stances which led to the dismissal, (3) the impact his ability to adequately prepare affect and de- 3 society his case. ' In addition, fend retri- a has of administration the on reprosecution a of the interest in having bution punishment imposed Act, and (4) reprosecution the impact of a on 3 7 upon convicted as speedily as defendants justice. of trial the Does prac- administration the 2 3 assessment of court's of these each ticable. factors in- of question volve a fact or law? Beginning the construction proper A provi- of the sanctions analysis (4), clear it is and (3) factors with is essential to obtain these objectives, sion that since should variables these of both be labeled as prosecutorial authorities would otherwise have little to comply incentive statutory with the time of questions in law. court's lower The function limits. therefore is It imperative courts that Campbell ' See U.S. 373 493 States, v. 487, United vigilantly construe this provision in order to (1963); 478 v. Connor, F.2d 1320, States United 1323 States (7th Cir. 1973); United v. Jones, 475 F.2d 723, the Act's purposes that ensure fulfilled. are 728 (5th Cir. FEDERAL 1973); WRIGHT & MILLER, 9 AND PRACTICE PROCEDURE § 2573, 689 (1971 ed.). As at DISMISSAL II. WITHOUT WITH OR PREJUDICE- Professors Wright observed, have Miller and the QUESTION OF OR FACT LAW? standard erroneous clearly of Rule 52(a) of the Fed- eral Rules of approvingly been Civil Procedure has If the trial decision to dismiss court's with or of factual applied to findings a in judge trial criminal without prejudice is a determination the fact, of provides In part, Rule 52(a) matters. pertinent that decision can appellate the by aside set court be cases findings of fact in without not "shall tried ajury and be aside unless clearly erroneous, set due regard shall be given to to the opportunity of the trial court deterrent that sufficient the has not had attention in judge of the ... witnesses credibility of the 34 See United States v. Gypsum Co., 333 ofjustice." administration Address U.S. by Mr. Chief Jus- 364, tice Burger, Association Mid-Winter American Bar (1948). 394-95 1975. Meeting, Feb. 23, 3 Or, 395. at Id. as stated byJudge Learned Hand. See, 27 e.g., Singer, Psychological Studies of Punish- It is meaning the define to try to idle of the erroneous'; 'clearly phrase be can that all profit- L. ment, 58 CAL. 405, 417 (1970). REV. 28 1974 U.S. CODE CONG. AD. & NEWS, 93d Cong., is said ably that an appellate court, though it will Sess., 2d 7409. at hesitate less reverse to the judge a of finding 29 Singer, Psychological Studies Punishment, of 58 than that administrative of an tribunal or of a nevertheless will jury, it most reluctantly reverse REV. CAL. L. at 417-18. & 1974 CODE U.S. CONG. 30 AD. when NEWS, and Cong., only well 93d v. persuaded. States United Co., Aluminum 433 1945). Cir. (2d 416, F.2d 148 2d at 7402. Sess., MOORE'S 36 5A PRACTICE FEDERAL 2662- 52.03[2], at "' 514,532-33 Barker v. Wingo, 407 U.S. See (1972). 12 As noted by the dissenters in Furman Georgia, v. (2d. 63 See Distilling 5). ed. Fleischmann Corp. v. U.S. 408 238 (1972), "There is no authority suggesting Maier Co., Brewing F.2d. 1963): Cir. (9th 149 314 that purge Eighth the was intended Amendment to as in position a good are "'[W]e as the trial judge to the retributive law of its elements, has Court and the determine [the Id. question]."' 152, at ultimate quot- consistently that retribution is assumed Shoes, a ing, Miles legitimate Inc. v. R.H. F.2d 199 Macy & Co., punishment the of at dimension 394 Id. crimes." of 602, 602-03 (2d Cir. 1952). 37 18 U.S.C. § 3162(a)(1)(2). (Burger, C.J., dissenting).

5 68 [Vol. STEINBERG MARC I. dismiss is to resolve disputed facts this or with not he that assessment which require stances must trial the prejudice, without judge resolve orjudge the credibility of witnesses, but to draw conclusions facts about wit- of credibility the judge and disputed the potential impact a repro- of For nesses. secution would the claim may prosecution the instance, accused phrased have. As by one court, "When case caused essentially is by a finding ov- one was delay excessive that the dealing effect with the accused the of transactions certain may argue that or the while erload, prosecution's grossly conduct negligent. was events, rather than a finding which resolves disputed is of this question The resolution one facts, an appellate is not fact, of court bound reversible on clearly appeal erroneous: if only by the findings that rule shall not aside be set unless erroneous, clearly free but is draw to "A its finding which to fact of clearly the erro- 3 8 applies, the based neous rule finding is a on conclusions." own to regard fac- Thus, with tors (3) and (4) a question law, of rather than the experience with tribunal's 'fact-finding mainsprings of conduct.' human totally A 39 is presented. fact, Turning next (1), factor to the seriousness of different question is raised, however, one when what to as doubts inquires the offense, any inference to whether as should this con- reasonably sideration a is question of or law fact be may be fact findings the from drawn of by the dis- resolved by answering the following In inquiry: trict the court. Utilizing prior example, the trial determining seriousness the of the offense with court's finding the government was that grossly in the negligent which defendant not is complying charged, the does with the ap- Act's time pellate court before have it the same informa- effect But or the fact. of finding a is periods the tion, having reliability, same district as the impact noncompliance this of a is question of court had? In his analysis, the trial judge nei- Thus, law. the determination gov- the whether ther resolves conflicting assesses nor facts the ernment's negligent grossly behavior warrants credibility of witnesses. Rather, examines he dismissal with prejudice involves a legal ques- charges the against pending accused, the At tion. and this there point, is to as dispute no facts then arrives determination. at his Similarly, the the credibility or but witnesses, of an there is reviewing scrutinizes court the offenses issue effect what to as given should be to the charged then makes an and regard- assessment prosecution's conduct. negligent determi- The ing their seriousness. Clearly, reviewing the this nation of finding a is issue of law. The court is in good position a as as the trial court of existence to factual elements, fac- in specifically assess seriousness the offense, the of and tor the does not (2), transmute this question legal lower determination court's is therefore a mat- into factual one. Rather, a crucial the inquiries ter are whether court of law. appellate the situated is as in The to variable last considered be is good factor position a the as to court lower the resolve issues and raised (2): the facts and circumstances the whether trial find- court's to which the led dismissal. In determining facts and the circum- concern ings impact the effect or certain of events rather disputed than and facts witness 38 United States No. v. Hart, (9th 76-1196 Cir. credibility. these Since both of questions must 1976) (en Oct. 28, banc) (Hufstedler, concurring J., be answered in affirmative, the appellate the dissenting) and added), (emphasis Stevenot quoting, is court "free from the restraining influence of v. F.2d 210 Norberg, 619 Cir. (9th 615, That 1954). the 'clearly erroneous' may and rule," therefore statement was quoted also with approval by the Ninth 0 4 conclusions. Circuit Fleischmann own in Distilling v. Corp. Maier its draw Brewing 314 Co., F.2d 149, 152 n.2 (9th Cir. 1963). Judge Hufstedler recognized that her au- supporting thorities rather civil were decisions. criminal than v. States United '9 76-1196 No. Hart, (9th Cir. With this to respect issue, observed: she 1976) (en Oct. 28, quoting, banc), Free- Lundgren v. are These civil but no reason cases, exists to man, 104, 307 115 F.2d (9th Cir. 1962), quoting, Com- apply a restrictive more standard of appellate missioner v. Duberstein, 289 278, U.S. 363 (1960). review criminal to cases. On contrary, the a re- The issue the before Ninth Circuit in Hart was argument spectable made be can deeper, that whether the district judge's determination that the than rather shallower, scrutiny appellate should government reasonable utilized to efforts the secure be given to criminal because cases the societal informant's presence defendant's the at a trial was and personal stakes in criminal cases are often question or fact of law. in larger than civil cases. Kiwi '0 Coders Acro Corp. v. Tool Works, Die & n.1 76-1196 No. J., (Hufstedler, concurring and F.2d 250 568 562, (7th Cir. 1957). It should be noted dissenting). that the itself does Act not provide for an interlocu-

6 DISMISSAL OR WITHOUT PREJUDICE WITH 1977] DISMISSAL PREJUDICE- III. WITH WHETHER trial for finding a speedy alone adequate is THERE A CONSTITUTIONAL MUST BE inter- factors are Rather, all four abridgement. VIOLATION related examined be must and together.' With regard to the length de- permissible of "In all provides amendment sixth The that: constitu- "no exists there that the Court held lay, shall enjoy prosecutions, the accused criminal trial speedy the that holding tional for basis the right .4. a speedy and to public trial ... In 4 2 can right a specified number quantified be into North Court Supreme the v. Klopfer Carolina, 49 rea- possible Concerning months." days or of deemed enforceable as this right fundamental, the Court concluded that delay, the against the states sons for by application due the of 43 amendment, fourteenth the of clause hinder the an effort to de- process in delays deliberate 4 case fendant's heavily must be weighed against 4 held United and in Strunk States, Court the v. over- that negligence or the government; that the for deprivation of the remedy a sole 43 but less crowded dockets must be weighed, dismissal in Then Bar- prejudice. with is right 4 ajusti- that and delays; intentional than heavily v. four ker a promulgated Court the Wingo, " missing essential excuse, such wit- as a fiable step test to determine whether a constitutional ness, not to be counted against the govern- is taken of the right to a speedy trial had violation 5 0 defendant's to respect With failure ment. the The place. must courts which factors four as- the a trial, demand Court to held speedy that sess in this determination "Length of delay, are: cannot guarantee fundamental the although be the the reason for the delay, defendant's asser- 5 "failure to assert the presumptively ' waived of his right, and prejudice to tion the defend- 47 a right will make it difficult for defendant to factor ant.1 one no that The Court stressed 2 5 ' that trial. he was denied Re- a speedy prove appeal tory motion from the denial of a to dismiss Court the garding prejudice, the of factor con- under 3162 or from an order authorizing Section that if material witnesses become cluded una- without dismissal arguable since that is It prejudice. during vailable delay, unwarranted the can- or dismiss an the a or denial of a motion to indictment as an prejudice without dismissal may not be viewed not events which are at is- accurately recollect and trial stand must defendant the order, appealable occurs sue, the prejudice is clear. Prejudice also on raise appeal after he is convicted. issue this accused has been subjected to the pro- when 337 Corp., Loan Industrial Beneficial Cohen v. if incarceration, even longed pre-trial and is he denial U.S. 541 should be persuasive that the (1949), he trial, to prior incarcerated not nevertheless of a motion without dismissing order an or dismiss to appellate if because appealable, be should prejudice anxiety severe suffers by having restraints im- the asserted is delayed review until final disposition, his upon posed freedom and being to subjected an on Cohen Employing lost. irreparably be will right .33 suspicion public ruled have courts appellate question, analogous that constitutional of right principle was Another dismiss on order of an denying a motion to grounds double order. interlocutory appealable an is jeopardy See States v. Disilvio, United 520 247 (3d Cir. F.2d 48 Id. at 533. (1975); United States 1975), denied, cert. U.S. 423 1015 Id. 41 at 523 (emphasis added). Thus, whether the Cir. v. United Beckerman, 516 F.2d 905 (2d 1975); sixth accused's the to prejudicial is delay of length The 164 v. Lansdown, 460 F.2d (4th Cir. 1972). States re- same rationale should apply here. Alternatively, the must guarantee amendment be determined by by lief could prohibition or mandamus of writ be and 530-31. facts circumstances of each case. Id. at at U.S. Id. so 412 States, United v. Strunk see 531; sought. See Cir.) (2d 255 F.2d 476 Dooling, v. Hilbert 404 U.S. this where (1973), 878 U.S. 414 denied, cert. (en 307, banc), 434,436 (1973); United States v. Marion, remedy For additional discussion on this was utilized. (1971); 325 354, U.S. 352 States, United v. Pollard 361 (1957). & Mandelkern, supra, note see at 28- subject, Russ 2, 51 rule, demand-waiver fol- The 525. at U.S. 407 29. 41 U.S. CONST. amend. the accused some lowed jurisdictions, stated that in VI. 42 386 U.S. 213 periods (1967). which he prior all to for waived the right Id.; 43 Smith v. Hooey, 393 U.S. demand Court to Barker The failed 374, trial. speedy a 374-75 (1969). 44 412 U.S. 434 rejected presume to that the on doctrine this (1973). basis waiver a was inaction through right fundamental of sixth For 4- Id. at 437-40. articles which discuss the principle of waiver of fundamental contrary the to right amendment see length, greater at Amsterdam, criticiz- commentary a For guarantees. constitutional STAN. L. Criminal Speedy and Remedies, Rights 27 Tial. Speedy Trial-Ma- STANDARDS ABA REV. see rule, demand-waiver the ing 525, 539-41 (1975); Godbold, Surgery jor at Comment 17, at 2.2, § TRIAL SPEEDY To RELATING for a National 274- 265, REv. L. ALA. 24 Ill, (1972); 88 Steinberg at 230-32. 1970). Draft (Approved 18 532. at U.S. 52 407 46 407 U.S. 514 (1972). 4 7 532-33. "Id. at Id. at 530.

7 68 [Vol. STEINBERG MARC I. 5 5 4 to be extended could enunciated United in rationale v. The Marion, States same tion. where the prejudice under dismissal with the Supreme encompass Court that held the Speedy Trial Trial Act. only Clause Speedy takes defendant effect the when with prej- has dismissal in authorizing However, subjected been formal a to indictment, 55 information upon or Congress that Thus, it appears arrest. Act, the under udice the speedy a dismissal declared intended that such be may trial provides right no protection prose- against cutorial misconduct the pre-arrest during or constitutional absence of a the in court the by 6 for this Support violation. to be is contention stage., pre-indictment found in the Act's history. legislative When the will that con- questions of the significant One the passed Act dismissal Senate, it mandated the when courts front of provision sanctions the the with Act becomes for noncompliance prejudice whether the sta- effective is with dismissal tutory time limits but permitted reprosecution with can prejudice occur has only when there 5 7 court the if determined delay the that sixth was a been amendment violation. In cases recently exceptional "by caused decided, the circumstances has government argued the which dismissal that with prejudice under Federal fo- have not could Court the and Government 9 of reseen Rule avoided." or Criminal Procedure 48(b) The House version the is warranted of there if only a been has depriva- constitutional Act, approved the House by Commit- Judiciary tee, provided for an even harsher remedy: 54 404 U.S. 307 (1971). noncompliance would require dismissal with 55 at Id. in Concurring 320. result, the Mr. Justice prejudice, reprosecution and absolutely was Douglas, joined Justices Mr. by Brennan and Mar- shall, that argued Trial Speedy the Clause should barred." Understandably, the Justice Depart- extend as well to pre-indictment the delay: obligation ment opposed vehemently the both Senate and which the sixth amendment "places on Government versions. House letter In a Congressman to officials to proceed expeditiously with criminal prose- Rodino, the Chairman of Judiciary Committee, cutions would have if meaning little officials those determine could that when commence." to was duty Attorney General Saxbe complained: (Douglas, 331-32 at Id. J., concurring the in result). an For analysis, works two see the by author pro- Mandatory dismissal cases criminal of not tried posing that, in the absence of good cause delay, for within 60 days to serve only can injure public the the time period begin should when run to the prose- by releasing persons charged with crime [sic] probable cutor has cause prosecute. to Steinberg, adjudication. without an injures This the public supra note 2, at 239; Comment, to Right Speedy Trial: not because the person only danger may pose a Maintaining Proper a Balance Between the Interests of to public the but welfare, also because under- it Society and Rights of the Accused, the UCLA-ALASKA 4 L. mines the public's confidence the in criminal jus- REv. 259-60 242, (1974). tice see to system persons charged crimes with 11 Writing the for Marion Court, Mr. White Justice 1 6 trial. without released asserted remedy that the for prosecutorial miscon- duct at this time due is the process clause of the fifth amendment: [T]he statute of limitations does not fully define the with appellees' rights respect to the events 58 See v. United States Simmons, 827, 536 F.2d 832- occurring to prior indictment. the Thus, Gov- 36 (9th Cir. 1976); United v. States Correia, 531 F.2d ernment the concedes that Due Process Clause 1095, 1097-98 (1st United Cir. 1976); v. Garner, States Fifth the of Amendment would require dis- F.2d 529 968 962, (6th Cir. 1976); United States v. missal the indictment of were shown if it at Clendening, trial 842, F.2d 526 n.2 Cir. (5th 844 1976); the that pre-indictment case this in delay caused United Stoker, v. States 576, 522 F.2d Cir. (10th 580 substantial to prejudice appellees' fair to rights a 1975); States United v. Clay, 481 F.2d 133, (7th 135 trial and that delay the was an intentional device 1973); Cir. Almeda v. F. 400 Blaubaum, Supp. 177, to advantage tactical gain accused. the over (D. 184 Ariz. 1975); States United Dog, Crow v. 399 F. 404 U.S. at 324. Even under this formulation, how- Supp. 228, Iowa 239 (D. 1975). ever, the defendant has no protection negli- against 59 S. 93d 754, 2d Cong., Sess. 208, ch. § 101, § delay gent by government the the during pre-indict- 3162(b)(1974). ment period. I H.R. 93-1508, No. REP. 93d Sess., 2d Cong., at author 5, The has considered this question in an- 37 (1974). other work, concluding that: "When dismissal is with CODE 6, U.S. 1974 CONG. 93d NEws, & AD. Cong., prejudice . provides the . Act . the that court exam- 2d 7447. at Sess., A similar view was by the expressed ine the same factors of type which are constitutionally in minority Report: House the mandated in Barker Steinberg, lv. Wingo]." note supra purpose the If trial speedy the of is act protect to 2, 235. at reexamination, Upon author the believes whole as a society the enabling by courts to that the assertion is above reasons for incorrect, promptly criminal of dispose then defendants, stated which are in the following discussion. that fear we this bill frustrate will that end by

8 DISMISAL WITH OR WITHOUT PREJUDICE 6 7 This strong opposition the by Justice Depart- contention. More recent holdings, however, ment prevented the Act from obtaining final dismissal authorize reprosecution barring with- 6 8 passage. Finally, order in to secure neces- the requiring out amendment a sixth A violation. sary votes for approval, an amendment was leading this case on question Second the is Cir- 69 introduced which stated that dismissal could be cuit's decision in United States v. Furey. In up- either with without or prejudice the at court's holding the dismissal with prejudice provision 6 2 discretion. On last the day of the 93rd Con- contained Rule in of 4 the Eastern District of gress, the with amended language substituted New and York Second Plans Circuit for the 0 for the sanctions which earlier had been pro- Prompt Disposition of Criminal Cases, vided, the Senate and House passed the Act.u This histoy implies that finally in accepting a 842, (5th 843 Cir. 1976); United States Furey, v. 514 F.2d 1098, 1103 Cir. (2d 1975). compromise solution permitting dismissal with 67 See Cohen v. United States, 366 F.2d 363, 367 or without prejudice the at court's discretion, (9th Cir. 1966), denied, cert. 385 U.S. 1035 (1967); Congress manifested its intent dismissal that United States v. Apex Distributing 270 Co., F.2d 747, barring reprosecution be authorized even 750 (9th 1959); Cir. United States v. Mark II Electron- where constitutional rights had been not ics of Louisiana, Inc., 283 F. Supp. 280, 284 La. (E.D. 1968). A discussion of these cases appears in United abridged. This assertion already been has ad- v. States Simmons, F.2d at 536 833 832-33, &25, nn.24 vanced by the Ninth Circuit. Referring to the and States United Furey, v. 514 F.2d at 1103-04. Speedy Trial Act dictum, in that appellate court 68 See United States v. Simmons, 536 F.2d at 836; concluded that the sanctions provision "clearly United States v. Stoker, F.2d 522 at 580; United States v. Furey, 514 F.2d provides at 1104. that a dismissal with prejudice may 514 69 F.2d 1098 (2d Cir. 1975). occur even though there has no been constitu- 70 4 Rule provides: h ' violation."' tional In cases all the government must be ready for An analogy can be drawn between the sanc- trial within six months the from of date the tions provision of the Act and Rule 48(b) of the arrest, service summons, of detention, or the filing a of complaint or formal a of charge upon Federal Rules of Criminal Procedure. In perti- which the defendant is tried, be to whichever is part, nent that rule provides: "[I~f there is un- earliest. the If government is not ready for trial necessary delay in bringing a defendant to trial, within such time, and if the defendant is the court may dismiss the indictment, informa- charged only with non-capital offenses, de- the fendant may move writing, in tion, on or at least complaint." ten As the government has days' notice to the government, dismissal for of recognized, the rule provides court the with the indictment. Any such motion shall de- be inherent authority, derived common from law, cided with utmost promptness. If it should ap- dismiss to a prosecution independent of consti- pear sufficient that grounds existed for tolling 65 tutional considerations. The government has any portion of the six-months period under one more or of exceptions the in Rule 5 [Rule tolls 5 argued, however, that unless there has been a the six-month period in various circumstances], constitutional deprivation, dismissal must be the motion shall denied, be whether or the not 66 without prejudice. Early cases supported this government has previously requested a continu- ance. Otherwise the court shall enter an order allowing defendants be to free. set We can imag- dismissing the indictment with prejudice unless ine no greater defect the in than bill the release the court finds that the government's neglect is defendants of without full determination of excusable, which in event the dismissal not shall their guilt or innocence. ... be effective if the government is ready to pro- at Id. 7455. ceed to trial ten within days. 62 120 CONG. REC. 12,570 (daily ed. Dec. 20, 1974) Writing for an en banc panel of the Second Circuit, (remarks Congressman of Cohen). Judge Mansfield observed: Id. I 12,573, at 22,489. For additional material on The purpose of Rule is 4 to insure regard- that the legislative history, see Hansen Reed,supra & note less whether a defendant has been prejudiced in 2, at 415; Russ & Mandelkern, supra 2, note 25-26. at a given case his or constitutional rights have United 64 States v. Graham, 538 F.2d 261, 266 (9th been infringed, the trial the of charge against Cir. 1976), quoting, United States v. Simmons, 536 him will go forward promptly instead of being F.2d 827, (9th 836 1976). Cir. frustrated creeping, by paralytic procedural de- 6 See United States v. Correia, 531 F.2d 1098 1095, lays the of type that have spawned a backlog of (1st Cir. 1976); United States v. Stoker, 522 F.2d 576, thousands of cases, with the public confi- losing 580 Cir. (10th 1975); United States v. Furey, 514 F.2d dence the in courts gaining and the impression 1098, 1102-03 (2d 1975). Cir. that federal criminal laws cannot enforced. be 66 See United v. States Simmons, 536 827, F.2d 832 Hilbert v. Dooling, 476 355, F.2d 357-58 Cir.) (2d (en Cir. (9th 1976); United States v. Clendening, 526 F.2d banc), cert. denied, 414 U.S. 878 (1973). For a discus-

9 68 [Vol. STEINBERG MARC I. or limits time applicable must the with comply he adopted pursuant Rule to of 50(b) Federal the 7 or infor- that the indictment the possibility face Rules of Criminal Procedure, the ' court Furey prejudice." with be dismissed will mation reaffirmed its decision two rendered ear- years 72 Hilbert in lier v. Dooling "it that within is the THE IN CONSIDERED BE TO FACTORS IV. court's power inherent dismiss to prosecution a WHETHER COURT'S DETERMINATION DIS- TO with prejudice for prosecutorial delay not rising OR WITHOUT PREJUDICE WITH MISS constitutional to dimensions -,7 ... Perhaps determining In to whether dismiss with or the most thorough analysis on rendered this requires without prejudice, section 3162(a)(1)(2) subject the is recent opinion in Ninth Circuit's 74 that the among court consider, fol- the others, United States v. Simmons, held which dis- that lowing factors: "the seriousness of offense; the with missal prejudice, arising not sixth from a the facts circumstances and which the to led abridgment, amendment is permissible provid- dismissal; the and a of impact reprosecution on ing sanction this that exercised is with caution administration the of this chapter and on the prosecutors after have been forewarned of the 7 ' 5 administration of justice." In enumerating consequences. In reaching this conclusion, these factors, Congress to declined assess Ninth the Circuit found the Speedy Trial Act to greater significance to over one another. factor highly be relevant. The stated: court that appears thus It a promulgated Congress the Although limits time imposed Speedy the by balancing which in test relevant all factors are to Act of Trial not were 1974 to applicable this be considered together. proceeding, that we believe relevant Act is the to Implementation approach this of requires a show dismissal that prejudice with arising not case by case determination, and from constitutional the delicate a should violation be exer- cised with caution and after only a forewarning balancing involved process frequently results in 7 7 consequences... of the Speedy the Thus, Trial determination subjective a the court. Some by Act clearly provides that with a dismissal preju- principles general advanced, be may however, dice may though even occur there has been no which may guidance lend courts to making this constitutional violation. so providing, in But the decision. formulating In these principles, the that requires Act courts exercise utiliz- caution in purposes underlying Act the must given be pri- this ing procedure. Such caution by manifested is mary attention. As earlier stated this article, in the consideration of various factors enumerated Act the to was designed both protect the de- the Act, by plus other relevant factors which fendant's interests. By providing society's and independently courts may employ reaching in the a ultimate for maximum and arrest decision. of 100 days between More importantly, Act the clearly the forewarns States United Attorney that trial, Act the spares the accused much of the and anxiety prejudice he otherwise which sion comparing the provisions of the Circuit Second have would incurred. time This period pro- Plan with Trial the Speedy Comment, Act, see Speedy vides greater assurance society to ac- the that Recent Trials: Developments Concerning a Right, Vital 4 cused not will additional commit crimes while FORD. URB. 351 L.J. (1976). he awaiting is trial, better promotes retribu- the 71 In pertinent part, Rule 50(b) states: tive purpose the criminal of law, arguably To minimize undue de- delay and to further the prompt disposition of criminal each cases, dis- the ters accused and members other of society trict shall court conduct a continuing study of engaging from illegal conduct, in and also ar- administration the of criminal in justice dis- the 7 8 guably eases rehabilitation the process. Keep- court trict and before United States magistrates these ing in purposes mind, the following dis- of district the and shall prepare plan for a the prompt disposition of criminal cases which shall cussion will consider the relevancy court's the to include rules to relating limits within time which determination whether with dismiss to with- or procedures prior the trial, to trial itself, and out prejudice of each of the four factors men- sentencing must take place, of means reporting Id. 76 For 835-36. articles at which discuss the rela- the status of cases, and such other matters as are necessary to or between proper tionship minimize sixth and the delay amendment right facili- to a the prompt trial speedy disposition tate and such of Speedy the cases... see Trial Act, & Hansen FED. 50(b). R. CRIM. P. supra Reed, Steinberg; 2; note The Note, Speedy Trial 72 476 F.2d 355 (2d Cir.) (en banc), cert. denied, 414 Act 1974: of Defining Sixth the Right, Amendment 25 878 (1973). U.S. REV. L. U. CATH. (1975). 130 73 514 F.2d 7' The at 1104; adoption see 476 of the F.2d balancing at 358-61. test by the Court 74 536 F.2d 827 (9th Cir. 1976). in Barker the same entails problems. 78 See text & accompanying notes 25-33 supra. 75 Id. at 836.

10 1977] DISMISSAL WITH OR WITHOUT PREJUDICE tioned in section 3162(a)(1)(2). Afterwards, standards, but must solely fixed be by objective other factors relevant be will discussed. Finally, necessarily involve a subjective partly analysis. section will this inquire into those factors In which making determination, this courts however, should not enter court's into the determination. must remember that one is this factor at least of four which must be and scrutinized interre- A. Seriousness the of Offense lated. the Speedy If Trial Act was enacted the for Facts Circumstances and B. Which the to Led reason sole of providing greater safeguards for Dismissal the accused, the seriousness the of offense charged would be wholly irrelevant. But since a The principle underlying factor this is that major purpose of better is Act the exists there an protect to affirmative duty upon courts society's interests, this and prosecutors becomes factor to comply highly with the statutory material. The more serious the offense with time When limits. obligation this has not been met, dismissal which even required is the the though charged, is accused ex- the greater inter- est society has in permitting government the to cessive may delay due been have to court 8 0 reprosecute. The problem to is determine what congestion or prosecutorial work overload. In makes offense an the of serious variety. is It determining whether dismiss to with or without certainly prejudice, to plausible any however, classify the as crime court seri- must consider ous involves which whether dismissal the threat barring or use of violence reprosecution would (e.g., armed robbery). But non-violent crimes, provide incentive an for the courts and prose- particularly those which have massive social im- cutors adhere to these to limits time in the plications, may also be considered in serious future. When noncompliance by caused is cir- nature. example, For it is arguable that indict- cumstances beyond control the of either the corporate ing a court executive or prosecutor, criminally for such no pollut- would incentive be ing waters public involves which an offense as is provided by dismissing prejudice. with ex- For reprehensible as many violent offenses. The in ample, enacting the Act, Congress declined seriousness the of to create cannot any offense be new judgeships defined enable by to the the of range sentences imposed by the legisla- operate courts to more efficiently under their ture, inconsistency because on legislature's the already overburdened workload."' Authorizing part between length the of sentence and sever- dismissal reprosecution barring under such 9 7 demonstrated. aptly been has crime the of ity court congestion, when the judiciary is attempt- Thus, the determination the of seriousness of ing in good faith to comply with the time limits, the offense charged against accused the cannot normally would serve useful no purpose. An different entirely situation appears, how- ever, impermissible when the delay occurs be- 79 See, e.g., In re Lynch, 8 Cal. 3d 410,505 P.2d 921, cause of court's the prosecutor's or deliberate 105 Cal. Rptr. (1972), 217 the California where Su- or negligent misconduct. Permitting reprosecu- preme held Court indeterminate an that sentence from ranging one year to life for defendant's the under tion circumstances these render would second conviction of indecent exposure violated the the without Act effective an remedy. Prosecuto- California constitutional prohibition against cruel authorities, rial realizing that they engage could and unusual punishment. In ruling, so the court in misconduct yet and have another opportu- this compared to sentence provided others by the legislature for far more crimes: serious rational it [I]s believe to that second-offense in- 18 80 See U.S.C. 3161(h)(8)(C). § decent a is exposure dangerous more than crime the unlawful killing of a being human without 8 Congress' to failure supply additional federal malice the in but of heat passion? the Yet pun- judges been has criticized by Justice. Chief the In ishment for manslaughter is far ... less The reminding Congress the Act that was passed over the same is for true other such violent crimes against unamimous the dissent of States United Judicial Con- the as person with assault commit to intent mur- ference, he stated: "I agree the even that internal der, kidnapping, mayhem, assault with intent working to courts rules of not should be left exclusively commit mayhem or robbery, assault with caustic judges, to but least there at be should the closest kind chemicals with injure intent to disfigure, or and cooperation of between the legislative judicial and assault on a peace officer or fireman engaged in branches and respect the for views experienced of performance the his of duties. who judges make must law the work." Address by Mr. at 3d Cal. 8 431, P.2d 503 Cal. 105 935, at Rptr. at 231, Chief Justice Burger, American Law Institute Con- (emphasis in original) (citations omitted). ference, May 18, 1976.

11 68 [Vol. STEINBERG MARC I. the which enter into the other factors try restate have incen- would accused, nity to the little 1 2 limits. time Act's the with comply to to dismiss with whether court's determination tive prejudice. or without on a of Impact The C. Reprosecution the Act Administration of the and on the Administration Be Considered Should That Factors Other D. Justice of discuss will article of the subsection This court The third and fourth factors that the courts should which factors additional three sanctions provision the is must consider under in determining whether to dismiss consider without preju- or with dismissal the impact that are the with prejudice. These factors or without the of administration on the would have dice the preju- record, criminal prior defendant's Al- justice. administration of the Act and on subjecting by upon accused the dice inflicted are relevant, Congress though these factors effect and the to reprosecution, possible him it meant into what insight any provide to failed on has with or dismissal without prejudice that the of "administration phraseology, by the the sta- prosecutorial incentive to comply With 8 4 ' 3 Thus, of justice. "administration and Act " time periods. tutory two the these of factors involves a consideration society's is test. On the one side, there balancing 1. Defendant's Prior Criminal Record potentially making de- guilty all interest in while that defendant the recognizes The Act stand side, other fendants the On trial. the the to danger a present may trial awaiting is he being not in strong interest a has defendant he lives. Commenting on which community in an when and has interest, society reprosecuted, three-quarters fact that approximately all the of by judicial or prosecutorial caused the is delay pending trial, the defendants are released in such the deter to misconduct, misbehavior noted: Committee "This House Judiciary should be Query considerations future. what likely commit to are who persons that means court decision. balancing this in to relevant the su- without adequate could crimes additional assess the court the First, degree of should the reap assistance continue to and pervision would impose prejudice which reprosecution of the expense the at activity criminal of profits cir- facts the the Second, and accused. upon 85 In public.1 protection better render to order should the to dismissal be led which cumstances Congress of hazard, this against occurrence the court should the Third, scrutinized. examine defendants legislation which required enacted and the the pending of the offenses seriousness after and arrest be to 100 within days tried record. criminal past defendant's the of severity agencies." pre-trial service established appears merely that these two factors Thus, it Con- that This legislative history indicates concept this both deliber- encompasses 82 Further, policies devising concerned was with gress by stated recently As ate misconduct. negligent and general aid which the promoting prevention in Circuit in dictum, "With the implementa- Ninth the percent- crime. substantial a that evident is It of Speedy of the in periods time Act's Trial the tion offend- prior by committed are of age crimes aware be the future, near fairly should government 8 trial accused an bringing in to conduct negligent that these regarding primary concern Society's ers. " 538 United Graham, States v. tolerated." be not will is commu- to isolate them from the recidivists F.2d 1976). Cir. (9th 266 261, commit nity to ensure that they will not order in 83 This concept may signify that the court should to In determining Whether offenses. additional dismissal or permitting bar- consider impact that the with dismiss without prejudice under the or efficient upon have would reprosecution the ring may mean that the the term the of Act. Or operation Act, should courts the of provision sanctions with- or with dismissal should court whether consider criminal recognize that a defendant with a past achieve- the retard or further would prejudice out commit addi- to record conviction is likely more the of purposes advanced by the Act. Upon ment upon return to the community crimes his tional merge into these interpretations reflection, both of because occurs result This concept. one definitional be is than the arrestee who, if convicted, would only can Act purposes the fulfills it if efficient be the indicative not Although offender. first-time a for enacted. was it which U.S. 85 Cong., 93d NEWS, AD. & CONG. CODE 1974 justice in decid- objective administering 84 The of Sess., 7409. at 2d within case enjoys a high stature the given ing a pre-trial to relating agen- service sections the For 86 the difficult American legal system. is The question §§ U.S.C. 3152-55. see cies, 18 See situation. of what is just in any specific assessment 93d 1974 U.S. CODE CONG. & AD. NEWS, ",See DECISION, 84-85 R. WASSERSTROM, JUDICIAL THE 2d Sess., at 7409. Cong., (1961).

12 DISMISSAL WITHOUT OR WITH PREJUDICE of the defendant's on the guilt pending 2. Prejudice Suffered by the Accused his prior charges, criminal relevant record is provision, sanctions the Under should courts with respect to society's concern in releasing not inflicted prejudice consider upon of extent the without that individual requiring outright him the In accused. many permitting cases, the state 8 8 trial. stand to to reprosecute inflicts greater harm than does The inquiry portions next is what of a de- a of the granting continuance. Reindictment fendant's criminal considered record be should the employment could require new counsel of by court. the First, only convictions, mere not the and further depletion of the defendant's arrests or acquittals, be material. Sub- should 9 1 By financial resources. dismissing without jecting accused an treatment to when harsher prejudice, the court defendant the subjects to the case its to failed state prove to is contrary the whims of the prosecutor, who gains thereby fundamental of principles justice. all Second, reprosecute the privilege to time any at within commission convictions for the of- of serious applicable the statute of limitations. Further, 9 fenses should be relevant, considered and allowing enables reprosecution to state the particularly, any convictions types for similar of the defendant while build its case The his. loses Third, offenses. the more severe the prior government, having the resources to engage in crimes, less the recent the convictions need be. additional investigational devote work, can its place To of number assessment this in years a efforts toward strengthening its when and case, involves necessarily an arbitrary determination. it believes be that obtained, a will conviction can most Under as is the circumstances, case under defendant, The reindict. then una- perhaps the Federal Rules of Evidence, for convictions the state is pursuing his ware that and case non-homicide offenses should be relevant a for in unlikely event any to financial sufficient have 90 exceeding not period ten years. resources, no may be longer to prepare an able defense. adequate reprosecution Thus, subjects " See Spencer v. Texas, 385 U.S. 554 (1967), where the accused substantial to prejudice, result a Chief Justice stated: Warren should which the be a significant factor in statutes Recidivist never have been thought to court's with or to with- whether decision dismiss allow show to State the guilt of probability be- of cause Their convictions. prior justification is prejudice. out that a defendant's only lead prior should crimes enhanced to for any punishment of- subsequent 3. Incentive Prosecutorial Act's the with Comply to fenses. statutes Recidivist tradi- four embody Time Limits rationales tional for imposing A sanctions. penal man's prior crimes thought to aggravate his are discussed This consideration, earlier, is men- guilt subsequent for crimes, and greater thus tioned again here to unless emphasize that the than usual retribution is warranted. Similarly, prosecution is provided with to incentive an the policies persons from society insulating of comply the with statutory the Act limits, time whose indicates conduct past their propensity to an without be will effective thus and remedy criminal providing behavior, of deterrence from future crime, and of criminals rehabilitating are of the purpose the credibility of impeaching the wit- by all served theoretically punishment enhanced rule according states: That ness. to recidivist None statutes. of these Evidence four of a conviction under this recidivist stat- for justifications rule is not traditional admissible if period a ten than more of has years utes any the to way in related is burden of proof elapsed date the since conviction the of State or of that prove to put is the the which to has a crime release of the witness from the confinement im- been currently committed the alleged by recidiv- conviction, that posed for ist. prior of fact rhe whichever is the later intended is not convictions the unless date, court inter- in determines, the by recidivist statutes to make it for the easier any ests of justice, probative the that value of the State to prove of commission the a subsequent conviction supported by specific facts and cir- does The State not crime. cases these in argue cumstances substantially outweighs are, or constitutionally that its prejudi- its statutes be, could effect. cial However, evidence of conviction a intended to allow the prosecutor to introduce more 10 years old as calculated herein, than is convictions to prior accused's show the criminal admissible unless not to the the proponent gives disposition... party advance adverse sufficient written notice 571 Id. at concurring CJ., (Warren, and dissenting). intent of such use to to evidence provide the " For a of discussion offenses be con- should what with party adverse a contest fair to opportunity sidered a of see nature, text serious & accompanying evidence. such of use the note 79 supra. Hansen " at 2, note supra Reed, & & Russ 416; Rule 609(b) " Federal Rules of the of Evidence Mandelkern, for provides 27-28. at note 2, admissibility the supra offenses of certain for

13 MARC STEINBERG I. [Vol. 68 rule; namely, that dead be exception to this general one argument may a letter. The rendered a to right his statutory waives defendant the the court When dismisses phrased follows: as dismissal for once without prejudice, to move the state must again failing trial by speedy of plea before trial a or plea guilty a of entry or the ac- redo some of accused and the reindict 5 3 nolo contendere. companying motions. This repetitive proce- Congress exception one this inserted Why the govern- cost for is a small dure, however, into may comprehend. It in no to difficult is Act the It its noncompliance. for to incur ment declining way deters prosecutorial authorities from vio- by that true be to the right his assert lating the Act's time the On periods. other to desire to proceed his is expressing defendant case possibility his that the rather than face trial provides reprosecution hand, dismissal barring prejudice. without dismissed be may But most comply. to incentive strong a these officials with to assert the defendants probably will fail right in result well very might noncompliance Since because only they unaware are of the demand for- defendant and the of release outright the cer- it circumstances, such Under requirement. to bringing him from the state prevent ever tainly coun- by failure that argue to plausible is on have prosecutors charges, pending the trial inform his client to sel defense basic this of interest diligent a every exercising in strong right defendant's amendment the violates sixth effort to periods. time the to adhere Thus, 6 counsel. to This adequate assistance of inac- although suffer the in society's may interests by run short counsel de- guilty potentially tion by releasing constitutes plain error which the 9 fendants long-range the from sua trial, court may raise sponte. without ' perspective, dismissal barring at reprosecution a of Inducing Guilty 2. Likelihood Plea its times achieve to is Act the if necessary is 2 avowed purposes. Act have expressed the Some critics of the that the hoping defendants, that view govern- Should That E. Factors Considered Be Not will ment 100 the trial for ready be not within period, into enter the not should which day Three factors plea into entering refrain will from with court's determination whether to dismiss are or asser- defendant's the prejudice without the shall commission of with an offense dividual statutory trial, speedy a tion of his to right the thirty be filed within days the date on from likelihood dismiss- plea guilty a inducing of by such which served or arrested was individual without ing and prejudice, the of ability the a with such with connection in summons charges. the prosecution to try the accused shortly after 95 Id. § 3162(a)(2). statutory the of termination periods. time Beasley generally See 96 v. F.2d 491 States, United United v. 687, 696 (6th Cir. 1974); DeCoster, States 1. Defendant's Right Statutory His of Assertion 1197, F.2d Coles 487 v. Cir. (D.C. 1973); 1202 Peyton, 226 389 F.2d 224, Writing (4th Cir. the for 1968). a Under analysis, amendment sixth the de- Beasley court, Judge Celebrezze stated: fendant's assertion of his is right constitutional hold We required that the counsel assistance of an consideration in determining important the under 9 3 Sixth counsel Amendment is reasona- abridged. been has guarantee this whether and reasonably render to likely bly rendering Under a however, the his demand is It Act, assistance. effective for stan- this of violation a defense criminal a deprive to counsel for dard speedy irrelevant. is trial The time periods au- of own his by defense substantial a defendant once commence ar- been has he tomatically ineffectiveness or incompetence ... Defense 4 9 or rested a with served There summons. is at perform must counsel lawyer well least a as as criminal with in skill and training ordinary the only in- Because the government incurs slight 92 law and must conscientiously protect his client's interest, undeflected by conflicting considera- convenience having by to reprosecute the defendant, counsel Defense ... tions all investigate must also would seem logical that the it court would have grant discretion the to a nolle prosequi the with leave. apparently substantial defenses available to such was alternative Perhaps rejected because this defendant and must assert them in a proper and action directly the affects accused's constitutional manner. timely 491 North at F.2d 696. Caro- speedy trial guarantee. See Klopfer v. "plain " that provides FED. R. CRIM. P. 52(b) U.S. 213, lina, 386 214-23 (1967). (1972). or Barker v. Wingo, 407 U.S. 514,531-32 See a errors may rights substantial affecting defects be § 3161(b) relevant in 18 U.S.C. provides part: atten- the to brought were noticed although they not an charging indictment or information Any in- the court." of tion

14 1977] DISMISSAL OR WITHOUT PREJUDICE WITH s negotiations with the prosecutionY The conse- re- a of the invitation tending reprosecution, quence of this refusal to bargain, plea these is appealing. sentence light a and charge duced commentators contend, will the be creation of these condi- under of plea a such giving The an enormous backlog, which render will both inherently is tions involuntary. the Neither courts and prosecutors of incapable complying Act the Speedy Trial nor American judicial with statutory the time Thus, limits. countless of for created the was process inducing purpose defendants will released be without ever being plead to defendants a Rather, guilty. guilty plea brought to trial. should accepted be the by only court if it is ° The possibility of prediction this coming to freely intelligently and tendered." fruition is remote. the During implementation Ability 3. of the Prosecution to Try the Defendant of Second the Circuit Plan required which de- After Expiration the of the Act's Time Periods fendants to tried be within months, six the number of guilty pleas appears actually to have In determining whether dismiss to or with 9 increased. But more relevant to the present without prejudice, the court not should con- is inquiry the whether should court consider sider that the prosecution would be to ready any effect a that permitting dismissal reprose- bring the accused to shortly trial after the ter- cution will have on bargaining the plea process. mination of statutory the time periods. For ex- The answer that must be this factor immate- is ample, suppose the that states prosecution that rial. The goal of the is Act to bring defendants although it was to unable with comply time the promptly to trial, to coerce not them plead to limits, it would be ready to try the defendant Although guilty. the "coercion" term may ap- the within next ten days. This consideration is pear somewhat strong this in context, is it ap- relevant only to the granting or denying a of 0 propriate in setting. this continuance the under ' Act' and not the to Given the alternatives of pleading guilty to a determination of dismissing or with without lesser included offense receiving and a rela- prejudice. Analysis under the dismissal or with tively lenient sentence or taking his chances that without prejuice provision is prohibited be- the may court with dismiss prejudice, the de- cause in almost every case government the decision fendant's a is difficult one. when But could argue that if the court would dismiss the accused the knows the that will probably court proceeding without prejudice, it would able be dismiss without prejudice an in attempt to en- comply to with the statutory time limits the hance the plea negotiation process, then he is second time around. such Under circum- confronted with a different kind of choice. stances, there would be little incentive for the Rather face than anxiety the and prejudice at- government comply to it when first arrested or Brady See "00 United v. States, 397 U.S. 742 (1970), " See U.S. 1974 CODE & CONG. NEws, AD. 93d Cong., Sess., 2d at 7447. stated As Justice by Mr. where then Attorney White stated: Saxbe: General guilty That a is plea a grave and solemn act to be Our system of criminal justice presently depends accepted only with care and discernment has guilty the on Under plea. this bill, criminals who long been recognized. Central plea the to and would ordinarily plead guilty insist may on jury the foundation for entering judgment against trial to take advantage the of automatic dismissal defendant the the is defendant's in admission sixty after The days. would system be over- open he that court committed the acts charged and whelmed wholesale dismissals would follow. indictment. in the thus stands He witness as a Replying 99 to Attorney General Saxbe's criticisms against himself and he is shielded Fifth the by Act, the of Congressman Conyers, Chairman the of Amendment being from to compelled so- do Subcommittee on Crime, stated: hence minimum the requirement plea his that [T]he Attorney General is of the opinion that the voluntary be expression of his own choice. enactment this of would legislation result a in But plea the is than an more admission of past decrease in the number guilty of since pleas, conduct; the it is defendant's that consent judg- defendants would request trials jury with ment conviction of may be entered without a greater frequency... a As fact, matter of the trial-a waiver of right his before trial to a jury experience Second the of after Circuit impo- the judge. a or Waivers of constitutional rights not of speedy sition limitations trial coupled with a only must voluntary be must but be knowing, dismissal sanction quite was to contrary. the acts intelligent sufficient done with awareness of During the first fall after quarter be- the rules the circumstances relevant and likely conse- came effective, of rate the increased disposition quences... twenty all percent, due to increased pleas. guilty Id. at 748. 101 18 U.S.C. § 3161(h)(8)(B). 7450. Id. at

15 MARC STEINBERG I. [Vol. 68 indicted accused. an should Courts therefore an adequate incentive to comply statu- with the refrain from considering the government's tory as- the will time periods, Act become nullity. a government, The sertion believing will it that be try that courts to ready dis- will the defendant shortly after miss the expiration the prejudice of with Act's only time under most the ex- limits determining in whether dismiss to or with circumstances, treme will no under be compul- without prejudice. sion to diligently pursue its prosecutions. Rather, only by a vigorous judicial application of the of remedy dismissal with prejudice will CONCLUSION V. the prosecution deterred be from noncompli- purpose The this of article has ana- been to with ance time the The limits. consid- primary lyze the dismissal or with without prejudice eration the for courts must be although that provision of the Speedy and Act Trial recom- to society may suffer to some extent by the release mend a interpretation proposed construing in of defendants under circumstances prohibiting that provision. It must emphasized be that this reprosecution, this sometimes result is neces- sanctions provision provides crucial the inquiry sary Act the if is to achieve the goals which for it under Act. the Unless the government is was enacted. given

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