MISCELLANEOUS MATTERS: Speedy Trial: Generally

2020 (October Term)

United States v. Harrington, 81 M.J. 184 (an appellate court reviews the decision of whether an accused has received a speedy trial de novo as a legal question, giving substantial deference to a military judge’s findings of fact that will be reversed only if they are clearly erroneous; a finding of fact is clearly erroneous when there is no evidence to support the finding or when although there is evidence to support it, the appellate court on the entire evidence is left with the definite and firm conviction that a mistake has been committed). 

(in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial). 

(an appellate court determines whether an appellant has been denied his right to a speedy trial using the four‑factor test that the Supreme Court established in Barker v. Wingo (407 US 514 (1972)): (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). 

(in the prejudice analysis of the four-factor speedy trial test, there are three interests that an appellate court considers: (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his defenses in case of reversal and retrial, might be impaired). 

(the most serious interest in analyzing the prejudice factor of the four-factor speedy trial test is evaluating the ability of an appellant to assert his or her defense in the event of a retrial or resentencing; this form of prejudice is the most serious because it skews the fairness of the entire system).

(in this case, the military judge did not err when he granted appellant’s motion to dismiss due to a speedy trial violation where (1) there was a delay of over 400 days in retrying appellant, which was particularly unreasonable when the retrial was to consist of the rehearing of a single specification and the sole victim chose to participate again; (2) the government was the primary cause of the delay; (3) appellant made a demand for a speedy trial; and (4) appellant was prejudiced by the delay in his case given that witnesses had lost their memories of the events during the delay and this memory loss negatively affected appellant’s defense when substitute testimony could not suffice).

2015 (September Term)

United States v. Wilder, 75 M.J. 135 (RCM 707, Article 10, UCMJ, and the Sixth Amendment provide a cohesive and sometimes overlapping framework for the protection of an accused’s speedy trial rights).

(the speedy trial protections and inquiries of RCM 707, Article 10, UCMJ, and the Sixth Amendment, though overlapping in some respects, are distinct; the fact that a prosecution meets the 120-day rule of RCM 707 does not directly or indirectly demonstrate that the government moved to trial with reasonable diligence as required by Article 10; similarly, the government might move with all reasonable diligence for purposes of Article 10, UCMJ, but nonetheless violate the bright-line 120-day rule of RCM 707). 

2013 (September Term)

United States v. Danylo, 73 M.J. 183 (in calculating the number of days elapsed for a speedy trial claim, do not count the first day, but count the last day).   

(in addition to the Sixth Amendment, Article 10, UCMJ, and the RCM 707 afford an accused a right to a speedy trial).   

(Article 62(c), UCMJ, provides that delays resulting from an appeal under Article 62 shall be excluded from speedy trial analysis unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit; the Supreme Court gives Congress the highest deference in ordering military affairs under its constitutional mandate to make rules for the government and regulation of the land and naval Forces; nevertheless, Article 62(c) does not totally immunize the Courts of Criminal Appeals against judicial review of the timeliness of their decisions). 

(in conducting a speedy trial analysis, a court breaks down the periods of delay, analyzes the reasons for each, and may express concern with some but not other periods of delay). 

2012 (September Term)

United States v. Wilson, 72 M.J. 347 (an accused’s assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether he was deprived of the right). 


United States v. Mizgala, 61 M.J. 122 (courts have uniformly held that a guilty plea constitutes a waiver of an accused’s rights under the Speedy Trial Act; however, the Speedy Trial Act does not apply to offenses under the UCMJ).



United States v. Brevard, 58 MJ 124 (where the Government had a reasonable, good faith belief under United States v. Melanson, 53 M.J. 1 (C.A.A.F. 2000) (holding that a final accounting of pay is a condition precedent to a lawful discharge) that appellant had not been lawfully or fraudulently discharged when it decided to proceed initially on the underlying charges rather than on the issue of fraudulent separation, it acted with reasonable diligence for speedy trial purposes).


United States v. McLaughlin, 50 MJ 217 (the Court rejects the notion that there is a “magic number” of days in pretrial confinement which would give rise to a presumption of a speedy trial violation; but see RCM 707).

Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site