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A defendant may not expressly waive his rights under the Speedy Trial Act. See, e.g., United States v. Saltzman, 984 F.2d 1087, 1090-1092 (10th Cir. 1993). However, if the trial judge determines that the "ends of justice" served by a continuance outweigh the interest of the public and the defendant in a speedy trial, the delay occasioned by such continuance is excluded from the Act's time limits. 18 U.S.C. 3161(h)(8)(A). The judge must set forth, orally or in writing, his reasons for granting the continuance. 18 U.S.C. 3161(h)(8)(A). The government should never rely on a defendant's unilateral waiver of his rights under the Act. The government should make sure that the judge enters an "ends of justice" continuance and that he sets forth his reasons for doing so.

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The Speedy Trial Act is inapplicable to juvenile delinquency proceedings, which have their own speedy trial provision. See 18 U.S.C. 5036 (speedy trial provision of the Juvenile Delinquency Act). Furthermore, the Interstate Agreement on Detainers (IAD) provides its own time limits for persons incarcerated in other jurisdictions. See 18 U.S.C. Appendix 2, 2, Articles III-VI. In such a case, the government must comply with both the time limits of the IAD and the Speedy Trial Act.

Additional resource tools are 1) the Guidelines to the Administration of the Speedy Trial Act of 1974 as Amended (revised December 1979), which was prepared by the Committee on the Administration of Criminal law of the Judicial Conference of the United States (Judicial Conference Guidelines), and distributed to all United States Attorneys' Offices; and 2) the guidelines adopted by the Court of Appeals for the Second Circuit (Second Circuit Guidelines). A good overview of the Speedy Trial Act (including cases interpreting the Act), and of a defendant's constitutional speedy trial rights in general, is provided in Twenty-Fifth Annual Review of Criminal Procedure, 84 Georgetown Law Journal 1022-1039 (April 1996). Additionally, the Appellate Section of the Criminal Division is available for assistance in interpreting the Act.

A defendant's right to a speedy trial has constitutional and statutory underpinnings in addition to the Speedy Trial Act. Federal statutes of limitations provide a time frame within which charges must be filed. Moreover, Rule 48, Fed. R. Crim. P., grants trial courts discretion to dismiss cases that are not brought to trial promptly. See Rule 48(b), Fed. R. Crim. P. (authorizing trial court to dismiss indictment if there is "unnecessary delay" in presenting the charge to a grand jury, in filing an information, or in bringing a defendant to trial).

A defendant's rights under the Speedy Trial Clause of the Sixth Amendment are triggered by "either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge." United States v. Marion, 404 U.S. 307, 320 (1971). (As noted above, any delay before this time must be scrutinized under the Due Process Clause of the Fifth Amendment, not the Sixth Amendment's Speedy Trial Clause. United States v. MacDonald, 456 U.S. 1, 7 (1982)). In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court set out a four-factor test for determining whether delay between the initiation of criminal proceedings and the beginning of trial violates a defendant's Sixth Amendment right to a speedy trial. The test requires the court to consider the length of the delay, the cause of the delay, the defendant's assertion of his right to a speedy trial, and the presence or absence of prejudice resulting from the delay. Barker, 407 U.S. at 530-533.

In United States v. Loud Hawk, 474 U.S. 302 (1986), where the reason for the 90-month delay (interlocutory appeals) did not weigh against the government, the Supreme Court held that the possibility of prejudice occasioned by the delay was not sufficient to establish a Sixth Amendment speedy trial violation. Moreover, the courts of appeals routinely reject Sixth Amendment speedy trial challenges in the absence of a showing of prejudice. See, e.g., United States v. Tannehill, 49 F.3d 1049, 1054 (5th Cir.), cert. denied, 116 S. Ct. 167 (1995); United States v. Baker, 63 F.3d 1478, 1497 (9th Cir. 1995), cert. denied, 116 S. Ct. 824 (1996). However, in Doggett v. United States, 505 U.S. 647 (1992), the Supreme Court held that an "extraordinary" eight-and-one-half-year delay between the defendant's indictment and arrest, which resulted from the government's "egregious persistence in failing to prosecute [him]," violated his right to a speedy trial even in the absence of "affirmative proof of particularized prejudice." Doggett, 505 U.S. at 652, 655, 657.

Where there are successive state and federal prosecutions, the general rule is that the federal constitutional speedy trial right does not arise until a federal accusation against the defendant is made. Thus, a prior state arrest based on the same facts as the subsequent federal charge does not implicate the federal constitutional guarantee. United States v. Walker, 710 F.2d 1062, 1069 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984).

United States v. Guyton, 82 M.J. 146 (in accordance with the Sixth Amendment, in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial; although pretrial delay is often both inevitable and wholly justifiable, the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment).

(the prejudice factor used to determine if there is a Sixth Amendment speedy trial violation should be assessed in the light of the three interests of the accused which the speedy trial right was designed to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired; of these forms of prejudice, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system; with regard to the second interest, this interest anticipates that an appellant will demonstrate some degree of particularized anxiety and concern greater than the normal anxiety and concern associated with the delay of his trial).

(in this case, the military judge did not err when he ruled that appellant could not prevail on his Sixth Amendment claim because he demonstrated no prejudice and the other three speedy trial factors only weighed slightly in his favor; appellant did not claim that his defense was impaired or that he was incarcerated or restricted pending trial, but rather focused on the interest he had in minimizing his anxiety and concern, stating that he experienced stress flowing from the pending charges; however, he only waited about 9 months for his trial to begin and the record showed no particularized anxiety in the record).

(in determining whether an appellant has been denied his right to a speedy trial under the Sixth Amendment, an appellate court considers the following factors: (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant).

(a delay of 350 days to bring appellant to trial after he entered pretrial confinement did not prejudice appellant in violation of his Sixth Amendment right to a speedy trial; although appellant served two months of confinement beyond his adjudged sentence, and claimed that his confinement conditions caused him particularized anxiety and concern, he was credited with the pretrial confinement he served against his adjudged sentence, the confinement conditions were not unique to his case, some of his anxiety could be attributed to his own misconduct while in pretrial confinement, and there was no indication of any loss of evidence or impact to case preparation due to the delay).

(analysis of a Sixth Amendment speedy trial claim requires consideration of the entire period of delay from arrest (pretrial confinement) or preferral of charges until commencement of trial on the merits; that review spans a continuum of process from review by the convening authority under Article 60 to review by a CCA under Article 66 to review, in appropriate cases, by the CAAF under Article 67).

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