A comparative study on the priciple of celerity in Romania and the United States of America

• Author: Steven Becker; Enikö Damaschin
• Pages: 90-101

Steven Becker. Assistant Appellate Defender, Adjunct Professor of Law, College of Law, DePaul University, Chicago, Illinois, USA, Chief Editor of International Review of Penal Law (e-mail: StevenMrB@aol.com).

Enikö Damaschin. Legal adviser, Ministry of Administration and Interior, Romania (e-mail: eniko.damaschin@gmail.com).

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Introduction

Celerity of criminal proceedings in widely understood involves both the speedy resolution of criminal cases and the simplified criminal proceedings, when appropriate. Celerity also requires the pursuit of activities by the prosecution which has the most effective ways of managing evidence. There is no doubt that the celerity of prosecution (feature, in fact, common throughout the criminal proceedings), although not specifically consacreted as a basic rule, is absolutely necessary, as beeing foreshadowed in a number of reglulations of the Code of Criminal Procedure.

Indissolubly linked to the principle of celerity (or the right to a speedy trial) is the concept of reasonable time for conducting criminal proceedings. In this respect, the slow progress of criminal cases violates the right of litigants to a reasonable time, a component of fair trial. The issue in question does not characterize particulary the national judiciary, is a real problem of great majority of national procedural systems, striking aspect that emerges from the deployment of a number of national and international research programs devoted to the study of the causes concerning the reasonable length of criminal proceedings¹.

In this study, our goal is to realise a brief review of the regulations concerning the principle of celerity in criminal trials, both in the United States of America and in Romania.

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I Standards established in the legal system of USA

1. 1 Preliminary

This section presents an overview of the right to a speedy trial for criminal defendants in the United States. A review of the approach taken in the U.S. common law system is significant from a comparative perspective because it highlights the marked differences in the manner in which such rights are protected in the Romanian legal system. The author will address the guarantee to a speedy trial from both the constitutional and statutory perspective, exploring the nature of the constitutional right under the federal constitution and then addressing the statutory protections using the law as set forth in the State of Illinois, which is illustrative of the general approach taken in most states. The author is an appellate practitioner in Illinois and has successfully litigated before the Illinois Supreme Court the first case in Illinois history defining the term “custody” for purposes of Illinois’ Speedy Trial Act.²

1. 2 Constitutional Right to a Speedy Trial in the United States

The Sixth Amendment to the United States Constitution provides, in pertinent part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .”³ The Illinois Constitution guarantees the right to a speedy trial in almost identical terms: “In criminal prosecutions, the accused shall have the right to . . . have a speedy public trial . . . .”⁴

In Barker v. Wingo,⁵ the United States Supreme Court gave a comprehensive overview of the constitutional right to a speedy trial. The Court noted that “the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment;”⁶ however, the Court also remarked that the speedy trial guarantee is “generically different” from any other rights protected by the U.S. Constitution both because there is a societal interest in an expeditious trial that is different from the concerns of the accused and because the deprivation of the right to a speedy trial may, in certain circumstances, actually work to the advantage of the defendant.⁷

As to the former interests, the Court stated that, from the societal perspective, where courts fail to provide for prompt resolution of criminal cases, court dockets become backlogged and prisons become overcrowded, thereby enabling defendants to secure better offers in the event that they plead guilty.⁸ Furthermore, where defendants are released on bond for extended periods of time, it is more likely that they will commit additional crimes.⁹ On the other hand, where a defendant is unable to make bail, he is subject to lengthy incarceration in local jails, which are often maintained in a deplorable state, thereby subjecting the accused to the risks of prisonPage 92 violence, rape, and other health and psychological dangers.¹⁰ Moreover, lengthy pretrial detention decreases the possibility of rehabilitation and increases the costs to the public.¹¹

With respect to the potential benefit that may accrue to the accused where a trial is not commenced in a timely manner, the Court pointed out that if prosecution witnesses are later unavailable, due to death or other factors, or their memories fade, the State’s case may be irreparably damaged.¹² In fact, for this very reason, the defense may attempt to delay the commencement of the trial.¹³ Thus, a delay may not be prejudicial per se.¹⁴

In short, because the constitutional right to a speedy trial “is a more vague concept than other procedural rights,” the Court rejected both the approach that a defendant must be brought to trial within a specified period of time and the “demand” rule, viz., that if a defendant fails to assert his right to a speedy trial by a formal demand, he forfeits his right to a speedy trial:¹⁵ “We, therefore, reject both of the inflexible approaches – the fixed-time period because it goes further than the Constitution requires; the demand-waiver rule because it is insensitive to a right which we have deemed fundamental.”¹⁶

Instead, the Court accepted a balancing test, for which it proposed four factors: (1) the length of delay; (2) the reasons for the delay; (3) the defendant’s invocation of his right; and (4) the resulting prejudice.¹⁷ As to the length of the delay, the Court identified this as, in essence, a “triggering factor.” Thus, “until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors . . . .”¹⁸ Subsequent jurisprudence has determined that

any delay in excess of one year is considered presumptively prejudicial.¹⁹

With respect to the second factor, i.e., the government’s reason for delay, the Court pronounced that “[a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily” but, nevertheless, should be weighted against the government because the State bears the responsibility of bringing the defendant to trial.²⁰ The third factor will be dependent upon whether the defendant makes a demand for his speedy trial rights.²¹

The fourth factor to consider in the constitutional analysis is the prejudice to the defendant. In Barker, the Court identified three specific interests that the speedy trial guarantee was designed to protect: (1) “to prevent oppressive pretrial incarceration”; (2) “to minimize anxiety and concern of the accused;” and (3) “to limit the possibility that the defense will be impaired.”²² The final factor, according to the Court, is the most serious “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.”²³ Such prejudice can come in the form of defense witnesses who die or disappear, the loss of memory of witnesses who are available, and in the inability of a defendant who is in jail awaiting trial to assist in the preparation of hisPage 93 defense.²⁴ Moreover, even where a defendant is not incarcerated pretrial, “he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.”²⁵

In sum, the Court ruled that each case must be assessed on an ad hoc basis and that none of the four factors should be regarded as “either a necessary or sufficient condition for the finding of a deprivation of the right to a speedy trial.”²⁶ The remedy for a violation of the constitutional right to a speedy trial is discharge, meaning a dismissal of all the charges.²⁷

The following two cases decided by the Illinois courts illustrate the differing outcomes that can result from the application of the four-factor analysis enunciated in Barker for alleged constitutional speedy trial violations. For example, in People v. Silver,²⁸ the court ruled that the defendant established a transgression of his speedy trial right under the United States and Illinois constitutions. In Silver, the delay in bringing Silver to trial was almost three years; thus, the delay was presumptively prejudicial.²⁹ One of the major disputes in the case arose over whether the defendant was responsible for the delay in the commencement of his trial because he moved to the State of California prior to the issuance of the indictment charging him with the possession of child pornography. The appellate court, however, held that the delay could not be imputed to the defendant, who had lived openly in California, where the police had knowledge of his address in California.³⁰ Accordingly, the court ruled that this factor...