Colin McCallin Sept. 1, 2020

The Pandemic Strikes

The worldwide spread of COVID -19 in recent weeks has now made its mark on the criminal justice system here in Colorado and around the country: most if not all local courts are closed as of this writing, and many hearings have been postponed. This in turn has brought up a legal issue that will likely exert a much greater effect in criminal cases during this pandemic than it does normally: the right to a speedy trial. How will courts uphold their duty to try defendants for crimes in a reasonable amount of time while observing emergency policies meant to prevent the spread of the new coronavirus? How can you assemble a jury to hear evidence when people aren’t supposed to get anywhere near each other? And what will happen to cases for which a speedy trial is impossible?

What Is Speedy Trial?

The speedy trial clause of the U.S. Constitution is part of the Sixth Amendment; it promises those accused of crimes that they will not await trial indefinitely at the pleasure of a negligent or vengeful district attorney, and it also promises the public that potential criminals will not roam free for years before their guilt or innocence is determined. Within this requirement, the exact length of time considered fair is decided state by state. Colorado sets a six-month limit on criminal cases charged under state law. This means that, in the interest of speedy trial, a criminal defendant must be brought to trial within 6 months of entering a plea of not guilty. Defendants sometimes waive this right if they or their attorneys feel it would be advantageous to have more time, or if a judge finds that an act by a defendant that causes a delay amounts to an implicit waiver. This is not so, however, in the majority of the cases in Colorado that will run up against statutory limits as a result of the coronavirus pandemic.

How Will Criminal Cases Be Affected?

Therefore, we find ourselves in unknown territory. What happens to all these cases poised to violate the Sixth Amendment due to the spread of COVID-19? Will they be dismissed wholesale?  I know what you’re thinking: Sounds like the perfect time to go on a crime spree! Where’s my ski mask?

But not so fast. There are ways in emergencies like the coronavirus pandemic for judges to preserve the legality of cases that would otherwise never present a Sixth Amendment problem.  For example, the U.S. criminal code provides an exception for cases prolonged by the court when “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” Some states have speedy trial exceptions specifically for times of court congestion, which allows judges to mandate the waiver of a defendant’s right to speedy trial. While Colorado’s code does not have “ends of justice” or congestion exceptions, it does allow for delays by the prosecution due to the “unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that this evidence will be available at the later date.”  In the coming months we are likely to see judges exercising exclusions like these to keep cases from slipping beyond their authority.  But these exclusionary statutes leave ample room to dispute, on appeal, whether forcing a defendant to waive speedy trial rights is lawful. We, as a country, hold our constitutional rights inviolable.  What happens when an unstoppable virus meets an immovable constitutional right?  Only time will tell.