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The Sixth Amendment to the U.S. Constitution provides for the right of a speedy trial. If there is an unjustifiable pre-arrest delay, the defendant may move to dismiss the complaint against him/her. Section 7 Article 1 of the California Constitution addresses timely prosecution between the time of the commission of the offense and the time the defendant is charged or arrested, whichever happens first.
Section 15 of Article 1 of the California Constitution deals with post-accusation delay and the time between the filing of the accusatory instrument and the arrest. An accusatory pleading is a misdemeanor complaint, a felony complaint, information or indictment.
A defendant may seek dismissal for violation of either, pre- or post-accusation delay, but the burden of proof differs. Pre-Accusation delay in California involves the same tests for determining whether the rights to due process and speedy trial have been violated. Regarding Post-Accusation delay, the California Supreme Court has held that the federal speedy trial right attaches in misdemeanor cases when the misdemeanor complaint is filed. The arrest must be accompanied by a continuing restraint.
Jones v. Superior Court (1970) 3 C3d 734 set forth the principle that whether the delay is negligent or intentional, the court weighs actual prejudice to the defendant against any justification for the delay. In federal court, the test is different in that some districts have held that the delay must not only be prejudicial but also for the purpose of gaining a tactical advantage. In California, prejudice will not be presumed no matter how long the delay. However, even the slightest showing of prejudice shifts the burden to the prosecution to provide a justification. The justification must outweigh the prejudice to the defendant in a balancing test for the prosecution to proceed. Even if the statute of limitations has not expired, a defendant may still raise a motion to dismiss based on due process grounds.
In felony cases, the filing of a felony complaint is not enough to trigger speedy trial rights. Rather it attaches upon arrest, when an indictment is filed, or when the holding order is filed following a preliminary hearing. Only section 15 of Article 1 of the California Constitution is available to challenge delay that occurs between the criminal complaint and the holding order.
In any event, the defendant must show that the delay affected his/her ability to present a viable defense because the witness became unavailable, evidence was lost, or a witness’s memory has faded. One may also argue that the defendant lost the possibility of potential or concurrent sentencing, which is a prejudicial factor in the balancing test. The potential for prolonged incarceration, and the client’s inability to account for an alibi due to the passage of time all may be viable arguments that must be particular and demonstrate prejudice to the defendant in a persuasive way to the court.
If there is an unjustified delay that causes actual prejudice, this will almost always result in dismissal under the California Constitution. In Serna, the California Supreme Court held that a showing of actual prejudice to a misdemeanor defendant is not necessary where the delay between the arrest and the filing of the complaint exceeds one year.
In Doggett v. US, the U.S. Supreme Court found a presumption of prejudice recognizing governmental negligence in an 8½ year delay of prosecution. If the prosecution can show it exercised reasonable diligence without a significant delay, there is unlikely to be a Sixth Amendment violation without a showing of actual prejudice. Intentional delays in bad faith don’t require a showing of prejudice or even a significant period of delay to be rectified.
To show prejudice prior to the hearing of this pre-trial motion, all witnesses should be subpoenaed for testimony and documents, and exhibits and physical evidence may be presented to show the prejudicial nature of the claim. To demonstrate lack of justification for the delay, defense counsel should present evidence that the defendant was available to be served with an arrest warrant and lacked any knowledge of the arrest warrant. The defense may present evidence of a valid driver’s license, DMV registration, voter registration, or any other police contact during the time of the outstanding warrant, to show that the court could have made minimal efforts to successfully locate the defendant.
