North Carolina's Speedy Trial

Posted by Sean Cecil | Feb 20, 2018 | 2 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.

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