North Carolina's Speedy Trial

Posted by Sean Cecil | Feb 20, 2018 | 6 Comments

North Carolina prosecutors control the criminal calendars. This means that prosecutors, if they are so inclined, can delay trials. Unfortunately, there is no statutory right to a "speedy trial." Like every other state in the U.S. that does not have a specific state addressing the issue, North Carolina uses the constitutional speedy trial factors used in Barker v. Wingo, a 1972 United States Supreme Court case.

Since Barker, recently cited by the North Carolina Court of Appeals in North Carolina v. Wilkerson, a court should carefully weigh four factors in determining whether to grant a criminal defendant's motion to dismiss for violation of his right to a speedy trial:

  1. the length of the delay
  2. the reason for the delay
  3. the defendant's assertion of his right
  4. the prejudice to the defendant

None of the factors are determinative; they must all be weighed and considered together. In Wilkerson the Court of Appeals confirmed that a court weighing these factors uses a "difficult and sensitive balancing process" involving the "fundamental rights of the accused." Accordingly, the Court ruled, a court doing so must make specific findings supported by the record in its ruling on the issue.

In Wilkerson, after a delay of several years, the Defendant was able to show the Court that a key defense witness had died. He also established that other witnesses who his lawyer had previously been in contact with could no longer be located when the case was finally scheduled for a trial. Using the Barker balancing factors, the Court of Appeals cited the Superior Court's "limited record" but held that the Defendant had tended "to show his Sixth Amendment right to a speedy trial may have been violated." The case was remanded to the trial court for at least the second time, for that court to hold a full evidentiary hearing for the Superior Court to hear and make an appropriate assessment of Defendant's arguments. 

The Court in Wilkerson confirmed that if a defendant's constitutional right to speedy trial is violated, the only remedy is dismissing the indictment and vacating the convictions. 

About the Author

Sean Cecil

Sean is an experienced advocate dedicated to justice for all people. He believes that individual human rights outweigh the freedom to make an easy dollar.


Sean Cecil Reply

Posted Jul 09, 2020 at 06:15:32

Thanks for the question, and apologies for the delayed response. The answer, of course, depends on circumstance. Generally speaking, unless a defendant can show actual prejudice to their case (harm to their defense based on evidence or witnesses lost) it would be a while before the “speedy trial” issue became one that could be raised successfully. If delay is a concern, or especially for defendants in custody, a demand for speedy trial should be filed early in the case.

Sean Cecil Reply

Posted Jul 09, 2020 at 06:18:37

I would think not. There is caselaw that generally Assistant DA’s are replaceable, so the unavailability of one should not necessarily render the State unable to proceed. However, as a practical matter, the State gets a lot of leeway with scheduling issues. In fact, prosecutors in North Carolina largely control all docketing/calendaring in criminal cases. Objections should be made early and often, but don’t expect extraordinary remedies such as a dismissed felony absent extraordinary circumstances.

Lana Martin Reply

Posted Oct 01, 2020 at 08:35:07

What if someone has been held for one year without a court date..being told that the case is being picked up by the fbi ( been hearing this for a year)… but found out from court appointed lawyer, they are trying to build another case… can they hold you this long with no progress as they say witness are still being interviewed

Sean Cecil Reply

Posted Oct 01, 2020 at 09:09:14

Thanks for your question. Unfortunately, this is not too out of the ordinary, especially if there is actual interest by the U.S. Attorney’s office. It can be years before a case is tried. These kind of delays can be fodder for a renewed motion to reconsider pretrial conditions of release- ask for a bond hearing. That said, written demands for speedy trial can be helpful if the case does get to the point that the delay has caused prejudice to the defendant’s ability to present a defense.

Unfortunately, court closures and the complete cessation of jury trials nearly statewide (I understand that there have been a couple jury trials in federal cases) for over six months creates an ‘x’ factor when it comes to speedy trial rights. Again, possibly another argument to be made in a bond hearing. Good luck!

Almey Gray Reply

Posted Mar 01, 2021 at 13:18:30

“Since Barker, recently cited by the North Carolina Court of Appeals in North Carolina v. Wilkerson, a court should carefully weigh four factors in determining whether to grant a criminal defendant’s motion to dismiss for violation of his right to a speedy trial:

the length of the delay
the reason for the delay
the defendant’s assertion of his right
the prejudice to the defendant
None of the factors are determinative; they must all be weighed…

Could one argue successfully that a defendant was prejudiced, pursuant to the fourth determative factor, if the excessive delay- in our case, 12-15 months, if the occupation that you worked, were trained and certified in, would dismiss you and others companies would not hire you, because their insurance companies have knowledge that you have been CHARGED with a DWI (unknown drug) but not convicted, pending trial and presumed innocent, license not as yet suspend. In our case, going on 4 months without work and our attorney advises that it tends to be 12-15 months before blood results come back from the SBI Lab. In the mean time our son cannot work in the profession he had worked for years; again, not due to suspension or conviction but a charge for which he is presumably innocent yet insurance companies will not insure him to drive with a charge pending? Long question I know, sorry.


Sean Cecil Reply

Posted Mar 01, 2021 at 13:51:27

That’s a good question, thank you.

Unfortunately, prejudice in this instance is generally understood to mean prejudice to the defense- meaning disappeared witnesses, evidence that can’t be recovered (would probably need to show good faith effort to learn of and preserve), things of that nature- the passage of time resulting in lost opportunity to present a defense. It’s not a low bar, and with DWI’s specifically, delays of many months or even years are not unusual. However, it is district court, and sometimes a particular argument catches the right judge on the right day and they’ll toss a case. I would definitely defer to the counsel of your attorney, who is of course more familiar with the specific facts of your case.

Best of luck!

Leave a Comment

Experienced and Successful

Edelstein & Payne has been dedicated to individual and workers' rights for over 30 years. Our attorneys have consistently been named on best lawyer and superlawyer lists, and have received numerous awards and recognitions for community contributions.

Dedicated to North Carolina Communities

With nearly 80 years of combined experience serving the working people of North Carolina, the lawyers at Edelstein & Payne have proven their dedication to justice for all people.