OpenJurist

407 US 514 Barker v. W Wingo

407 U.S. 514

92 S.Ct. 2182

33 L.Ed.2d 101

Willie Mae BARKER, Petitioner,
v.
John W. WINGO, Warden.

No. 71—5255.

Argued April 11, 1972.

Decided June 22, 1972.

Syllabus

Petitioner was not brought to trial for murder until more
than five years after he had been arrested, during which time the
prosecution obtained numerous continuances, initially for the
purpose of first trying petitioner's alleged accomplice so that
his testimony, if conviction resulted, would be available at
petitioner's trial. Before the accomplice was finally convicted,
he was tried six times. Petitioner made no objection to the
continuances until three and one-half years after he was arrested.
After the accomplice was finally convicted, petitioner, after
further delays because of a key prosecution witness' illness, was
tried and convicted. In this habeas corpus proceeding the Court of
Appeals, concluding that petitioner had waived his right to a
speedy trial for the period prior to his demand for trial, and in
any event had not been prejudiced by the delay, affirmed the
District Court's judgment against petitioner. Held: A defendant's
constitutional right to a speedy trial cannot be established by
any inflexible rule but can be determined only on an ad hoc
balancing basis, in which the conduct of the prosecution and that
of the defendant are weighed. The court should assess such factors
as the length of and reason for the delay, the defendant's
assertion of his right, and prejudice to the defendant. In this
case the lack of any serious prejudice to petitioner and the fact,
as disclosed by the record, that he did not want a speedy trial
outweigh opposing considerations and compel the conclusion that
petitioner was not deprived of his due process right to a speedy
trial. Pp. 519—536.

442 F.2d 1141, affirmed.

James E. Milliman, Cincinnati, Ohio, for petitioner, pro hac
vice, by special leave of Court.

Page 515

Robert W. Willmott, Jr., Asst. Atty. Gen., Frankfort, Ky.,
for respondent, pro hac vice, by special leave of Court.

djQ Mr. Justice POWELL delivered the opinion of the Court.

Although a speedy trial is guaranteed the accused by the
Sixth Amendment to the Constitution,1 this Court has dealt with
that right on infrequent occasions. 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); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30
L.Ed.2d 468 (1971). See also United States v. Provoo, 17 F.R.D.
183 (D.Md.), aff'd, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761
(1955). The Court's opinion in Kloper v. North Carolina, 386 U.S.
213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), established that the right
to a speedy trial is 'fundamental' and is imposed by the Due
Process Clause of the Fourteenth Amendment on the States.2 See
Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969);
Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26
(1970). As Mr. Justice Brennan

1

Page 516

pointed out in his concurring opinion in Dickey, in none of these
cases have we attempted to set out the criteria by which the
speedy trial right is to be judged. 398 U.s., at 40—41, 90 S.Ct.
at 1570. This case compels us to make such an attempt.

I

On July 20, 1958, in Christian County, Kentucky, an elderly
couple was beaten to death by intruders wielding an iron tire
tool. Two suspects, Silas Manning and Willie Barker, the
petitioner, were arrested shortly thereafter. The grand jury
indicted them on September 15. Counsel was appointed on September
17, and Barker's trial was set for October 21. The Commonwealth
had a stronger case against Manning, and it believed that Barker
could not be convicted unless Manning testified against him.
Manning was naturally unwilling to incriminate himself.
Accordingly, on October 23, the day Silas Manning was brought to
trial, the Commonwealth sought and obtained the first of what was
to be a series of 16 continuances of Barker's trial.3 Barker made
no objection. By first convicting Manning, the Commonwealth would
remove possible problems of self-incrimination and would be able
to assure his testimony against Barker.

The Commonwealth encountered more than a few difficulties in
its prosecution of Manning. The first trial ended in a hung jury.
A second trial resulted in a conviction, but the Kentucky Court of
Appeals reversed because of the admission of evidence obtained by
an illegal search. Manning v. Commonwealth, 328 S.W.2d 421 (1959).
At his third trial, Manning was again convicted, and the Court of
Appeals again reversed

2

Page 517

because the trial court had not granted a change of venue. Manning
v. Commonwealth, 346 S.W.2d 755 (1961). A fourth trial resulted in
a hung jury. Finally, after five trials, Manning was convicted, in
March 1962, of murdering one victim, and after a sixth trial, in
December 1962, he was convicted of murdering the other.4

The Christian County Circuit Court holds three terms each
year—in February, June, and September. Barker's initial trial was
to take place in the September term of 1958. The first continuance
postponed it until the February 1959 term. The second continuance
was granted for one month only. Every term thereafter for as long
as the Manning prosecutions were in process, the Commonwealth
routinely moved to continue Barker's case to the next term. When
the case was continued from the June 1959 term until the following
September, Barker, having spent 10 months in jail, obtained his
release by posting a $5,000 bond. He thereafter remained free in
the community until his trial. Barker made no objection, through
his counsel, to the first 11 continuances.

When on February 12, 1962, the Commonwealth moved for the
twelfth time to continue the case until the following term,
Barker's counsel filed a motion to dismiss the indictment. The
motion to dismiss was denied two weeks later, and the
Commonwealth's motion for a continuance was granted. The
Commonwealth was granted further continuances in June 1962 and
September 1962, to which Barker did not object.

In February 1963, the first term of court following Manning's
final conviction, the Commonwealth moved to set Barker's trial for
March 19. But on the day scheduled for trial, it again moved for a
continuance until the June term. It gave as its reason the illness

3

Page 518

of the ex-sheriff who was the chief investigating officer in the
case. To this continuance, Barker objected unsuccessfully.

The witness was still unable to testify in June, and the
trial, which had been set for June 19, was continued again until
the September term over Barker's objection. This time the court
announced that the case would be dismissed for lack of prosecution
if it were not tried during the next term. The final trial date
was set for October 9, 1963. On that date, Barker again moved to
dismiss the indictment, and this time specified that his right to
a speedy trial had been violated.5 The motion was denied; the
trial commenced with Manning as the chief prosecution witness;
Barker was convicted and given a life sentence.

Barker appealed his conviction to the Kentucky Court of
Appeals, relying in part on his speedy trial claim. The court
affirmed. Barker v. Commonwealth, 385 S.W.2d 671 (1964). In
February 1970 Barker petitioned for habeas corpus in the United
States District Court for the Western District of Kentucky.
Although the District Court rejected the petition without holding
a hearing, the court granted petitioner leave to appeal in forma
pauperis and a certificate of probable cause to appeal. On appeal,
the Court of Appeals for the Sixth Circuit affirmed the District
Court. 442 F.2d 1141 (1971). It ruled that Barker had waived his
speedy trial claim for the entire period before February 1963, the
date on which the court believed he had first objected to the
delay by filing a motion to dismiss. In this belief the court was
mistaken, for the record re-

4

Page 519

veals that the motion was filed in February 1962. The Commonwealth
so conceded at oral argument before this Court.6 The court held
further that the remaining period after the date on which Barker
first raised his claim and before his trial—which it thought was
only eight months but which was actually 20 months—was not unduly
long. In addition, the court held that Barker had shown no
resulting prejudice, and that the illness of the exsheriff was a
valid justification for the delay. We granted Barker's petition
for certiorari. 404 U.S. 1037, 92 S.Ct. 719, 30 L.Ed.2d 729
(1972).

II

The right to a speedy trial is generically different from any
of the other rights enshrined in the Constitution for the
protection of the accused. In addition to the general concern that
all accused persons be treated according to decent and fair
procedures, there is a societal interest in providing a speedy
trial which exists separate from, and at times in opposition to,
the interests of the accused. The inability of courts to provide a
prompt trial has contributed to a large backlog of cases in urban
courts which, among other things, enables defendants to negotiate
more effectively for pleas of guilty to lesser offenses and
otherwise manipulate the system.7 In addition, persons released on
bond for lengthy periods awaiting trial have an opportunity to
commit other crimes.8 It must be of little comfort to the
residents of Christian County, Kentucky, to know that Barker was
at large on bail for over four years while accused of a vicious

5

Page 520

and brutal murder of which he was ultimately convicted. Moreover,
the longer an accused is free awaiting trial, the more tempting
becomes his opportunity to jump bail and escape.9 Finally, delay
between arrest and punishment may have a detrimental effect on
rehabilitation.10

If an accused cannot make bail, he is generally confined, as
was Barker for 10 months, in a local jail. This contributes to the
overcrowding and generally deplorable state of those
institutions.11 Lengthy exposure to these conditions 'has a
destructive effect on human character and makes the rehabilitation
of the individual offender much more difficult.'12 At times the
result may even be violent rioting.13 Finally, lengthy pretrial
detention is costly. The cost of maintaining a prisoner in jail
varies from $3 to $9 per day, and this amounts to millions across

6

Page 521

the Nation.14 In addition, society loses wages which might have
been earned, and it must often support families of incarcerated
breadwinners.

A second difference between the right to speedy trial and the
accused's other constitutional rights is that deprivation of the
right may work to the accused's advantage. Delay is not an
uncommon defense tactic. As the time between the commission of the
crime and trial lengthens, witnesses may become unavailable or
their memories may fade. It the witnesses support the prosecution,
its case will be weakened, sometimes seriously so. And it is the
prosecution which carries the burden of proof. Thus, unlike the
right to counsel or the right to be free from compelled
self-in-crimination, deprivation of the right to speedy trial does
not per se prejudice the accused's ability to defend himself.

Finally, and perhaps most importantly, the right to speedy
trial is a more vague concept than other procedural rights. It is,
for example, impossible to determine with precision when the right
has been denied. We cannot definitely say how long is too long in
a system where justice is supposed to be swift but deliberate.15
As a consequence, there is no fixed point in the criminal process
when the State can put the defendant to the choice of either
exercising or waiving the right to a speedy trial. If, for
example, the State moves for

7

Page 522

a 60-day continuance, granting that continuance is not a violation
of the right to speedy trial unless the circumstances of the case
are such that further delay would endanger the values the right
protects. It is impossible to do more than generalize about when
those circumstances exist. There is nothing comparable to the
point in the process when a defendant exercises or waives his
right to counsel or his right to a jury trial. Thus, as we
recognized in Beavers v. Haubert, supra, any inquiry into a speedy
trial claim necessitates a functional analysis of the right in the
particular context of the case:

'The 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.' 198 U.s., at 87, 25 S.Ct. at 576,
49 L.Ed. 950.

The amorphous quality of the right also leads to the
unsatisfactorily severe remedy of dismissal of the indictment when
the right has been deprived. This is indeed a serious consequence
because it means that a defendant who may be guilty of a serious
crime will go free, without having been tried. Such a remedy is
more serious than an exclusionary rule or a reversal for a new
trial,16 but it is the only possible remedy.

III

Perhaps because the speedy trial right is so slippery, two
rigid approaches are urged upon us as ways of eliminating some of
the uncertainty which courts ex-

8

Page 523

perience in protecting the right. The first suggestion is that we
hold that the Constitution requires a criminal defendant to be
offered a trial within a specified time period. The result of such
a ruling would have the virtue of clarifying when the right is
infringed and of simplifying courts' application of it.
Recognizing this, some legislatures have enacted laws, and some
courts have adopted procedural rules which more narrowly define
the right.17 The United States Court of Appeals for the Second
Circuit has promulgated rules for the district courts in that
Circuit establishing that the government must be ready for trial
within six months of the date of arrest, except in unusual
circumstances, or the charge will be dismissed.18 This type of
rule is also recommended by the American Bar Association.19

But such a result would require this Court to engage in
legislative or rulemaking activity, rather than in the
adjudicative process to which we should confine our efforts. We do
not establish procedural rules for the States, except when
mandated by the Constitution. We find no constitutional basis for
holding that the speedy trial right can be quantified into a
specified number of days or months. The States, of course, are
free to prescribe a reasonable period consistent with
constitutional standards, but our approach must be less precise.

The second suggested alternative would restrict con-

9

Page 524

sideration of the right to those cases in which the accused has
demanded a speedy trial. Most States have recognized what is
loosely referred to as the 'demand rule,'20 although eight States
reject it.21 It is not clear, however, precisely what is meant by
that term. Although every federal court of appeals that has
considered the question has endorsed some kind of demand rule,
some have regarded the rule within the concept of waiver,22
whereas others have viewed it as a factor to be weighed

10

Page 525

in assessing whether there has been a deprivation of the speedy
trial right.23 We shall refer to the former approach as the
demand-waiver doctrine. The demandwaiver doctrine provides that a
defendant waives any consideration of his right to speedy trial
for any period prior to which he has not demanded a trial. Under
this rigid approach, a prior demand is a necessary condition to
the consideration of the speedy trial right. This essentially was
the approach the Sixth Circuit took below.

Such an approach, by presuming waiver of a fundamental
right24 from inaction, is inconsistent with this Court's
pronouncements on waiver of constitutional rights. The Court has
defined waiver as 'an intentional relinquishment or abandonment of
a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464,
58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Courts should 'indulge
every reasonable presumption against waiver,' Aetna Ins. Co. v.
Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177
(1937), and they should 'not presume acqui-

11

Page 526

escence 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 Carnley v. Cochran, 369 U.S. 506, 82 S.Ct.
884, 8 L.Ed.2d 70 (1962), we held:

'Presuming waiver from a silent record is impermissible. The
record must show, or there must be an allegation and evidence
which show, that an accused was offered counsel but
intelligently and understandably rejected the offer. Anything
less is not waiver.' Id., at 516, 82 S.Ct., at 890.

The Court has ruled similarly with respect to waiver of other
rights designed to protect the accused. See, e.g., Miranda v.
Arizona, 384 U.S. 436, 475—476, 86 S.Ct. 1602, 1628—1627, 16
L.Ed.2d 694 (1966); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.
1709, 23 L.Ed.2d 274 (1969).

In excepting the right to speedy trial from the rule of
waiver we have applied to other fundamental rights, courts that
have applied the demand-waiver rule have relied on the assumption
that delay usually works for the benefit of the accused and on the
absence of any readily ascertainable time in the criminal process
for a defendant to be given the choice of exercising or waiving
his right. But it is not necessarily true that delay benefits the
defendant. There are cases in which delay appreciably harms the
defendant's ability to defend himself.25

12

Page 527

Moreover, a defendant confined to jail prior to trial is obviously
disadvantaged by delay as is a defendant released on bail but
unable to lead a normal life because of community suspicion and
his own anxiety.

The nature of the speedy trial right does make it impossible
to pinpoint a precise time in the process when the right must be
asserted or waived, but that fact does not argue for placing the
burden of protecting the right solely on defendants. A defendant
has no duty to bring himself to trial;26 the State has that duty
as well as the duty of insuring that the trial is consistent with
due process.27 Moreover, for the reasons earlier expressed,
society has a particular interest in bringing swift prosecutions,
and society's representatives are the ones who should protect that
interest.

It is also noteworthy that such a rigid view of the
demand-waiver rule places defense counsel in an awkward position.
Unless he demands a trial early and often, he is in danger of
frustrating his client's right. If counsel is willing to tolerate
some delay because he finds it reasonable and helpful in preparing
his own case, he may be unable to obtain a speedy trial for his
client at the end of that time. Since under the demandwaiver rule
no time

13

Page 528

runs until the demand is made, the government will have whatever
time is otherwise reasonabel to bring the defendant to trial after
a demand has been made. Thus, if the first demand is made three
months after arrest in a jurisdiction which prescribes a six-month
rule, the prosecution will have a total of nine months—which may
be wholly unreasonable under the circumstances. The result in
practice is likely to be either an automatic, pro forma demand
made immediately after appointment of counsel or delays which, but
for the demand-waiver rule, would not be tolerated. Such a result
is not consistent with the interests of defendants, society, or
the Constitution.

We reject, therefore, the rule that a defendant who fails to
demand a speedy trial forever waives his right.28 This does not
mean, however, that the defendant has no responsibility to assert
his right. We think the better rule is that the defendant's
assertion of or failure to assert his right to a speedy trial is
one of the factors to be considered in an inquiry into the
deprivation of the right. Such a formulation avoids the rigidities
of the demand-waiver rule and the resulting possible unfairness in
its application. It allows the trial court

14

Page 529

to exercise a judicial discretion based on the circumstances,
including due consideration of any applicable formal procedural
rule. It would permit, for example, a court to attach a different
weight to a situation in which the defendant knowingly fails to
object from a situation in which his attorney acquiesces in long
delay without adequately informing his client, or from a situation
in which no counsel is appointed. It would also allow a court to
weigh the frequency and force of the objections as opposed to
attaching significant weight to a purely pro forma objection.

In ruling that a defendant has some responsibility to assert
a speedy trial claim, we do not depart from out holdings in other
cases concerning the waiver of fundamental rights, in which we
have placed the entire responsibility on the prosecution to show
that the claimed waiver was knowingly and voluntarily made. Such
cases have involved rights which must be exercised or waived at a
specific time or under clearly identifiable circumstances, such as
the rights to plead not guilty, to demand a jury trial, to
exercise the privilege against self-incrimination, and to have the
assistance of counsel. We have shown above that the right to a
speedy trial is unique in its uncertainty as to when and under
what circumstances it must be asserted or may be deemed waived.
But the rule we announce today, which comports with constitutional
principles, places the primary burden on the courts and the
prosecutors to assure that cases are brought to trial. We hardly
need add that if delay is attributable to the defendant, then his
waiver may be given effect under standard waiver doctrine, the
demand rule aside.

We, therefore, reject both of the inflexible approaches—the
fixed-time period because it goes further than the Constitution
requires; the demandwaiver rule because it is insensitive to a
right which he have deemed

15

Page 530

fundamental. The approach we accept is a balancing test, in which
the conduct of both the prosecution and the defendant are
weighed.29

IV

A balancing test necessarily compels courts to approach
speedy trial cases on an ad hoc basis. We can do little more than
identify some of the factors which courts should assess in
determining whether a particular defendant has been deprived of
his right. Though some might express them in different ways, we
identify four such factors: Length of delay, the reason for the
delay, the defendant's assertion of his right, and prejudice to
the defendant.30

The length of the delay is to some extent a triggering
mechanism. Until there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other
factors that go into the balance. Nevertheless, because of the
imprecision of the right to speedy trial, the length of delay that
will provoke such an inquiry is necessarily dependent upon the
pecu-

16

Page 531

liar circumstances of the case.31 To take but one example, the
delay that can be tolerated for an ordinary street crime is
considerably less than for a serious, complex conspiracy charge.

Closely related to length of delay is the reason the
government assigns to justify the delay. Here, too, different
weights should be assigned to different reasons. A deliberate
attempt to delay the trial in order to hamper the defense should
be weighted heavily against the government.32 A more neutral
reason such as negligence or overcrowded courts should be weighted
less heavily but nevertheless should be considered since the
ultimate responsibility for such circumstances must rest with the
government rather than with the defendant. Finally, a valid
reason, such as a missing witness, should serve to justify
appropriate delay.

We have already discussed the third factor, the defendant's
responsibility to assert his right. Whether and how a defendant
asserts his right is closely related to the other factors we have
mentioned. The strength of his efforts will be affected by the
length of the delay, to some extent by the reason for the delay,
and most particularly by the personal prejudice, which is not
always readily identifiable, that he experiences. The more serious
the deprivation, the more likely a defendant is to complain. The
defendant's assertion of his speedy trial right, then, is entitled
to strong evidentiary weight in determining

17

Page 532

whether the defendant is being deprived of the right. We
emphasize that failure to assert the right will make it difficult
for a defendant to prove that he was denied a speedy trial.

A fourth factor is prejudice to the defendant. Prejudice, of
course, should be assessed in the light of the interests of
defendants which the speedy trial right was designed to protect.
This Court has identified three such interests: (i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that
the defense will be impaired.33 Of these, the most serious is the
last, because the inability of a defendant adequately to prepare
his case skews the fairness of the entire system. If witnesses die
or disappear during a delay, the prejudice is obvious. There is
also prejudice if defense witnesses are unable to recall
accurately events of the distant past. Loss of memory, however, is
not always reflected in the record because what has been forgotten
can rarely be shown.

We have discussed previously the societal disadvantages of
lengthy pretrial incarceration, but obviously the disadvantages
for the accused who cannot obtain his release are even more
serious. The time spent in jail awaiting trial has a detrimental
impact on the individual. It often means loss of a job; it
disrupts family life; and it enforces idleness. Most jails offer
little or no recreational or rehabilitative programs.34 The time
spent in

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Page 533

jail is simply dead time. Moreover, if a defendant is locked up,
he is hindered in his ability to gather evidence, contact
witnesses, or otherwise prepare his defense.35 Imposing those
consequences on anyone who has not yet been convicted is serious.
It is especially unfortunate to impose them on those persons who
are ultimately found to be innocent. Finally, even if an accused
is not incarcerated prior to trial, he is still disadvantaged by
restraints on his liberty and by living under a cloud of anxiety,
suspicion, and often hostility. See cases cited in n. 33, supra.

We regard none of the four factors identified above as either
a necessary or sufficient condition to the finding of a
deprivation of the right of speedy trial. Rather, they are related
factors and must be considered together with such other
circumstances as may be relevant. In sum, these factors have no
talismanic qualities; courts must still engage in a difficult and
sensitive balancing process.36 But, because we are dealing with a
fundamental right of the accused, this process must be carried out
with full recognition that the accused's interest in a speedy
trial is specifically affirmed in the Constitution.

V

The difficulty of the task of balancing these factors is
illustrated by this case, which we consider to be close. It is
clear that the length of delay between arrest and trial—well over
five years—was extraordinary. Only

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Page 534

seven months of that period can be attributed to a strong excuse,
the illness of the exsheriff who was in charge of the
investigation. Perhaps some delay would have been permissible
under ordinary circumstances, so that Manning could be utilized as
a witness in Barker's trial, but more than four years was too long
a period, particularly since a good part of that period was
attributable to the Commonwealth's failure or inability to try
Manning under circumstances that comported with due process.

Two counterbalancing factors, however, outweigh these
deficiencies. The first is that prejudice was minimal. Of course,
Barker was prejudiced to some extent by living for over four years
under a cloud of suspicion and anxiety. Moreover, although he was
released on bond for most of the period, he did spend 10 months in
jail before trial. But there is no claim that any of Barker's
witnesses died or otherwise became unavailable owing to the delay.
The trial transcript indicates only two very minor lapses of
memory—one on the part of a prosecution witness—which were in no
way significant to the outcome.

More important than the absence of serious prejudice, is the
fact that Barker did not want a speedy trial. Counsel was
appointed for Barker immediately after his indictment and
represented him throughout the period. No question is raised as to
the competency of such counsel.37 Despite the fact that counsel
had notice of the motions for continuances,38 the record shows no
action whatever taken between October 21, 1958, and February 12,
1962, that could be construed as the assertion of the speedy trial
right. On the latter date, in response to another motion for
continuance, Barker moved

20

Page 535

to dismiss the indictment. The record does not show on what ground
this motion was based, although it is clear that no alternative
motion was made for an immediate trial. Instead the record
strongly suggests that while he hoped to take advantage of the
delay in which he had acquiesced, and thereby obtain a dismissal
of the charges, he definitely did not want to be tried. Counsel
conceded as much at oral argument:

'Your honor, I would concede that Willie Mae Barker probably
I don't know this for a fact—probably did not want to be
tried. I don't think any man wants to be tried. And I don't
consider this a liability on his behalf. I don't blame him.'
Tr. of Oral Arg. 39.

The probable reason for Barker's attitude was that he was
gambling on Manning's acquittal. The evidence was not very strong
against Manning, as the reversals and hung juries suggest, and
Barker undoubtedly thought that if Manning were acquitted, he
would never be tried. Counsel also conceded this:

'Now, it's true that the reason for this delay was the
Commonwealth of Kentucky's desire to secure the testimony of
the accomplice, Silas Manning. And it's true that if Silas
Manning were never convicted, Willie Mae Barker would never
have been convicted. We concede this. Id., at 15.39

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Page 536

That Barker was gambling on Manning's acquittal is also
suggested by his failure, following the pro forma motion to
dismiss filed in February 1962, to object to the Commonwealth's
next two motions for continuances. Indeed, it was not until March
1963, after Manning's convictions were final, that Barker, having
lost his gamble, began to object to further continuances. At that
time, the Commonwealth's excuse was the illness of the ex-sheriff,
which Barker has conceded justified the further delay.40

We do not hold that there may never be a situation in which
an indictment may be dismissed on speedy trial grounds where the
defendant has failed to object to continuances. There may be a
situation in which the defendant was represented by incompetent
counsel, was severely prejudiced, or even cases in which the
continuances were granted ex parte. But barring extraordinary
circumstances, we would be reluctant indeed to rule that a
defendant was denied this constitutional right on a record that
strongly indicates, as does this one, that the defendant did not
want a speedy trial. We hold, therefore, that Barker was not
deprived of his due process right to a speedy trial.

The judgment of the Court of Appeals is affirmed.

Affirmed.

djQ Mr. Justice WHITE, with whom Mr. Justice BRENNAN joins,
concurring.

Although the Court rejects petitioner's speedy trial claim
and affirms denial of his petition for habeas corpus,

22

Page 537

it is apparent that had Barker not so clearly acquiesced in the
major delays involved in this case, the result would have been
otherwise. From the Commonwealth's point of view, it is fortunate
that the case was set for early trial and that postponements took
place only upon formal requests to which Barker had opportunity to
object.

Because the Court broadly assays the factors going into
constitutional judgments under the speedy trial provision, it is
appropriate to emphasize that one of the major purposes of the
provision is to guard against inordinate delay between public
charge and trial, which, wholly aside from possible prejudice to a
defense on the merits, may 'seriously interfere with the
defendant's liberty, whether he is free on bail or not, and that
may disrupt his employment, drain his financial resources, curtail
his associations, subject him to public obloquy, and create
anxiety in him, his family and his friends.' United States v.
Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468
(1971). These factors are more serious for some than for others,
but they are inevitably present in every case to some extent, for
every defendant will either be incarcerated pending trial or on
bail subject to substantial restrictions on his liberty. It is
also true that many defendants will believe that time is on their
side and will prefer to suffer whatever disadvantages delay may
entail. But, for those who desire an early trial, these personal
factors should prevail if the only countervailing considerations
offered by the State are those connected with crowded dockets and
prosecutorial case loads. A defendant desiring a speedy trial,
therefore, should have it within some reasonable time; and only
special circumstances presenting a more pressing public need with
respect to the case itself should suffice to justify delay. Only
if such special considerations are in the case and if they
outweigh the inevitable personal prejudice resulting from delay
would

23

Page 538

it be necessary to consider whether there has been or would be
prejudice to the defense at trial. '(T)he major evils protected
against by the speedy trial guarantee exist quite apart from
actual or possible prejudice to an accused's defense.' United
States v. Marion, supra, at 320, 92 S.Ct., at 963.

Of course, cases will differ among themselves as to the
allowable time between charge and trial so as to permit
prosecution and defense adequately to prepare their case. But
unreasonable delay in run-of-the-mill criminal cases cannot be
justified by simply asserting that the public resources provided
by the State's criminal-justice system are limited and that each
case must await its turn. As the Court points out, this approach
also subverts the State's own goals in seeking to enforce its
criminal laws.

1

The Sixth Amendment provides:

'In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and
to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining Witnesses in his favor, and to have the
Assistance of Counsel for his defense.'2.'We hold here that the right to a speedy trial is as
fundamental as any of the rights secured by the Sixth Amendment.'
386 U.S., at 223, 87 S.Ct., at 993.

3

There is no explanation in the record why, although
Barker's initial trial was set for October 21, no continuance was
sought until October 23, two days after trial should have begun.

4

Apparently Manning chose not to appeal these final two
convictions.

5

The written motion Barker filed alleged that he had
objected to every continuance since February 1959. The record does
not reflect any objections until the motion to dismiss, filed in
February 1962, and the objections to the continuances sought by
the Commonwealth in March 1963 and June 1963.

6

Tr. of Oral Arg. 33.7 Report of the President's Commission on Crime in the
District of Columbia 256 (1966).8 In Washington, D.C., in 1968, 70.1% of the persons
arrested for robbery and released prior to trial were re-arrested
while on bail. Mitchell, Bail Reform and the Constitutionality of
Pretrial Detention, 55 Va.L.Rev. 1223, 1236 (1969), citing Report
of the Judicial Council Committee to Study the Operation of the
Bail Reform Act in the District of Columbia 20—21 (1969).

9

The number of these offenses has been increasing. See
Annual Report of the Director of the Administrative Office of the
United States Courts, 1971, p. 321.10 '(I)t is desirable that punishment should follow offence
as closely as possible; for its impression upon the minds of men
is weakened by distance, and, besides, distance adds to the
uncertainty of punishment, by affording new chances of escape.' J.
Bentham, The Theory of Legislation 326 (Ogden ed. 1931).11 To Establish Justice, To Insure Domestic Tranquility,
Final Report of the National Commission on the Causes and
Prevention of Violence 152 (1969).12 Testimony of James V. Bennett, Director, Bureau of
Prisons, Hearings on Federal Bail Procedures before the
Subcommittee on Constitutional Rights and the Subcommittee on
Improvements in Judicial Machinery of the Senate Committee on the
Judiciary, 88th Cong., 2d Sess., 46 (1964).13 E.g., the 'Tombs' riots in New York City in 1970. N.Y.
Times, Oct. 3, 1970, p. 1, col. 8.

14

The Challenge of Crime in a Free Society, A Report by the
President's Commission on Law Enforcement and Administration of
Justice 131 (1967).15 '(I)n large measure because of the many procedural
safeguards provided an accused, the ordinary procedures for
criminal prosecution are designed to move at a deliberate pace. A
requirement of unreasonable speed would have a deleterious effect
both upon the rights of the accused and upon the ability of
society to protect itself.' United States v. Ewell, 383 U.S. 116,
120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966).

16

Mr. Justice White noted in his opinion for the Court in
Ewell, supra, 383 U.S., at 121, 86 S.Ct., at 777, that overzealous
application of this remedy would infringe 'the societal interest
in trying people accused of crime, rather than granting them
immunization because of legal error. ..'

17

For examples, see American Bar Association Project on
Standards for Criminal Justice, Speedy Trial 14—16 (Approved Draft
1968); Note, The Right to a Speedy Criminal Trial, 57 Col.L.Rev.
846, 863 (1957).18 Second Circuit Rules Regarding Prompt Disposition of
Criminal Cases (1971).19 ABA Project, supra, n. 17, at 14. For an example of a
proposed statutory rule, see Note, The Lagging Right to a Speedy
Trial, 51 Va.L.Rev. 1587, 1619, (1965).

20

E.g., Pines v. District Court of Woodbury County, 233
Iowa 1284, 10 N.W.2d 574 (1943). See generally Note, The Right to
a Speedy (Criminal Trial, 57 Col.L.Rev. 846, 853 (1957); Note, The
Lagging Right to a Speedy Trial, 51 Va.L.Rev. 1587, 1601—1602
(1965).21 See State v. Maldonado, 92 Ariz. 70, 373 P.2d 583 (en
banc), cert. denied, 371 U.S. 928, 83 S.Ct. 299, 9 L.Ed.2d 236
(1962); Hicks v. People, 148 Colo. 26, 364 P.2d 877 (1961) (en
banc); People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891 (1955);
Zehrlaut v. State, 230 Ind. 175, 102 N.E.2d 203 (1951); Flanary v.
Commonwealth, 184 Va. 204, 35 S.E.2d 135 (1945); Ex parte
Chalfant, 81 W.Va. 93, 93 S.E. 1032 (1917); State v. Hess, 180
Kan. 472, 304 P.2d 474 (1956); State v. Dodson, 226 Or. 458, 360
P.2d 782 (1961). But see State v. Vawter, 236 Or. 85, 386 P.2d 915
(1963).22 See United States v. Hill, 310 F.2d 601 (CA4 1962); Bruce
v. United States, 351 F.2d 318 (CA5 1965), cert. denied, 384 U.S.
921, 86 S.Ct. 1370, 16 L.Ed.2d 553 (1966); United States v. Perez,
398 F.2d 658 (CA7 1968), cert. denied, 393 U.S. 1080, 89 S.Ct.
851, 21 L.Ed.2d 772 (1969); Pietch v. United States, 110 F.2d 817
(CA10), cert. denied, 310 U.S. 648, 60 S.Ct. 1100, 84 L.Ed. 1414
(1940); Smith v. United States, 118 U.S.App.D.C. 38, 331 F.2d 784
(1964) (en banc). The opinion below in this case demonstrates that
the Sixth Circuit Takes a similar approach.

'As an indication of the importance which these courts have
attached to the demand rule, see Perez, supra, in which the court
held that a defendant waived any speedy trial claim, because he
knew of an indictment and made no demand for an immediate trial,
even though the record gave no indication that he was represented
by counsel at the time when he should have made his demand, and
even though he was not informed by th court or the prosecution of
his right to a speedy trial.

23

Although stating that they recognize a demand rule, the
approach of the Eighth and Ninth Circuits seems to be that a
denial of speedy trial can be found despite an absence of a demand
under some circumstances. See Bandy v. United States, 408 F.2d 518
(CA8 1969) (a purposeful or oppressive delay may overcome a
failure to demand); Moser v. United States, 381 F.2d 363 (CA9
1967) (despite a failure to demand, the court balanced other
considerations).

The Second Circuit's approach is unclear. There are cases in
which a failure to demand is strictly construed as a waiver. E.g.,
United States v. DeMasi, 445 F.2d 251 (1971). In other cases, the
court has seemed to be willing to consider claims in which there
was no demand. E.g., United States ex rel. Solomon v. Mancusi, 412
F.2d 88, cert. denied, 396 U.S. 936, 90 S.Ct. 269, 24 L.Ed.2d 236
(1969). Certainly the District Courts in the Second Circuit have
not regarded the demand rule as being rigid. See United States v.
Mann, 291 F.Supp. 268 (SDNY 1968); United States v. Dillon, 183
F.Supp. 541 (SDNY 1960).

The First Circuit also seems to reject the more rigid
approach. Compare United States v. Butler, 426 F.2d 1275 (1970),
with Needel v. Scafati, 412 F.2d 761, cert. denied, 396 U.S. 861,
90 S.Ct. 133, 24 L.Ed.2d 113 (1969).24 See n. 2, supra.

25

'If a defendant deliberately by-passes state procedure
for some strategic, tactical, or other reason, a federal judge on
habeas corpus may deny relief if he finds that the by-passing was
the considered choice of the petitioner. The demand doctrine
presupposes that failure to demand trial is a deliberate choice
for supposed advantage on the assumption that delay always
benefits the accused, but the delay does not inherently benefit
the accused any more than it does the state. Consequently, a man
should not be presumed to have exercised a deliberate choice
because of silence or inaction that could equally mean that he is
unaware of the necessity for a demand.' Note, The Lagging Right to
a Speedy Trial, 51 Va.L.Rev. 1587, 1610 (1965) (footnotes
omitted).

26

As Mr. Chief Justice Burger wrote for the Court in Dickey
v. Florida:

'Although a great many accused persons seek to put off the
confrontation as long as possible, the right to a prompt inquiry
into criminal charges is fundamental and the duty of the charging
authority is to provide a prompt trial.' 398 U.S. 30, 37—38, 90
S.Ct. 1564, 1569, 26 L.Ed.2d 26 (footnote omitted).27 As a circuit judge, Mr. Justice Blackmun wrote:

'The government and, for that matter, the trial court are not
without responsibility for the expeditious trial of criminal
cases. The burden for trial promptness is not solely upon the
defense. The right to 'a speedy . . . trial's is constitutionally
guaranteed and, as such, is not to be honored only for the
vigilant and the knowledgeable.' Hodges v. United States, 408 F.2d
543, 551 (CA8 1969).

28

The American Bar Association also rejects the rigid
demand-waiver rule:

'One reason for this position is that there are a number of
situations, such as where the defendant is unaware of the charge
or where the defendant is without counsel, in which it is unfair
to require a demand . . . Jurisdictions with a demand requirement
are faced with the continuing problem of defining exceptions, a
process which has not always been carried out with uniformity . .
. More important, the demand requirement is inconsistent with the
public interest in prompt disposition of criminal cases. . . .
(T)he trial of a criminal case should not be unreasonably delayed
merely because the defendant does not think that it is in his best
interest to seek prompt disposition of the charge.' ABA Project,
supra, n. 17, at 17.

29

Nothing we have said should be interpreted as
disapproving a presumptive rule adopted by a court in the exercise
of its supervisory powers which establishes a fixed time period
within which cases must normally be brought. See n. 18, supra.30 See, e.g., United States v. Simmons, 338 F.2d 804, 807
(CA2 1964), cert. denied, 380 U.S. 983, 85 S.Ct. 1352, 14 L.Ed.2d
276 (1965); Note, The Right to a Speedy Trial, 20 Stan.L.Rev. 476,
478 n. 15 (1968).

In his concurring opinion in Dickey, Mr. Justice Brennan
identified three factors for consideration: the source of the
delay, the reasons for it, and whether the delay prejudiced the
interests protected by the right. 398 U.S., at 48, 90 S.Ct., at
1574. He included consideration of the defendant's failure to
assert his right in the cause-of-delay category, and he thought
the length of delay was relevant primarily to the reasons for
delay and its prejudicial effects. Id., n. 12. In essence,
however, there is little difference between his approach and the
one we adopt today. See also Note, The Right to a Speedy Trial,
supra, for another slightly different approach.

31

For example, the First Circuit thought a delay of nine
months overly long, absent a good reason, in a case that depended
on eyewitness testimony. United States v. Butler, 426 F.2d 1275,
1277 (1970).32 We have indicated on previous occasions that it is
improper for the prosecution intentionally to delay 'to gain some
tactical advantage over (defendants) or to harass them.' United
States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 466, 30 L.Ed.2d
468 (1971). See Pollard v. United States, 352 U.S. 354, 361, 77
S.Ct. 481, 485—486, 1 L.Ed.2d 393 (1957).

33

United States v. Ewell, 383 U.S., at 120, 86 S.Ct., at
776; Smith v. Hooey, 393 U.S. 374, 377—378, 89 S.Ct. 575, 576—577,
21 L.Ed.2d 607 (1969). In Klopfer v. North Carolina, 386 U.S. 213,
221—222, 87 S.Ct. 988, 992—993, 18 L.Ed.2d 1 (1967), we indicated
that a defendant awaiting trial on bond might be subjected to
public scorn, deprived of employment, and chilled in the exercise
of his right to speak for, associate with, and participate in
unpopular political causes.34 See To Establish Justice, To Insure Domestic Tranquility,
Final Report of the National Commission on the Causes and
Prevention of Violence 152 (1969).

35

There is statistical evidence that persons who are
detained between arrest and trial are more likely to receive
prison sentences than those who obtain pretrial release, although
other factors bear upon this correlation. See Wald, Pretrial
Detention and Ultimate Freedom: A Statistrical Study, 39
N.Y.U.L.Rev. 631 (1964).36 For an example of how the speedy trial issue should be
approached, see Judge Frankel's excellent opinion in United States
v. Mann, 291 F.Supp. 268 (SDNY 1968).

37

Tr. of Oral Arg. 39.38 Id., at 4.

39

Hindsight is, of course, 20/20, but we cannot help noting
that if Barker had moved immediately and persistently for a speedy
trial following indictment, and if he had been successful, he
would have undoubtedly been acquitted since Manning's testimony
was crucial to the Cmmonwealth's case. It could not have been
anticipated at the outset, however, that Manning would have been
tried six times over a four-year period. Thus, the decision to
gamble on Manning's acquittal may have been a prudent choice at
the time it was made.

40

At oral argument, counsel for Barker stated:

'That was after the sheriff, the material witness, was ill;
the man who had arrested the petitioner, yes. And the Sixth
Circuit held that this was a sufficient reason for delay, and we
don't deny this. We concede that this was sufficient for the delay
from March 1963 to October, but it does not explain the delays
prior to that.' Tr. of Oral Arg. 19—20.