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Cal Please explain the right to speedy trial and what can…

For Legal-Cal Please explain the right...
For Legal-Cal
Please explain the right to speedy trial and what can happen if tge 60 day deadline approaches and I do not waive my right.
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Answered in 1 hour by:
10/12/2016
Legal-Kal
Legal-Kal, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 600
Experience: Attorney at Law Offices of Khaled Issa
Verified

Thanks again for your patience.

So if a speedy trial deadline approaches (and passes) without waiving one's speedy trial right, a possible motion to dismiss based on the violation of the speedy trial rule can be brought.

When such a motion is brought, there is no automatic granting (or denying) of the motion. What must occur is a hearing on the motion.

At a hearing on such a motion, the Court must take into determination certain factors, which include: 1) the actual (not hypothetical) prejudice suffered by a defendant in not having a trial on the matter within the specified time period and 2) the prosecutor's reason for the delay in bringing forth the trial within the time period.

When it comes to prejudice suffered by a defendant (i.e., harm incurred because of the failure to bring forth trial within the time period), a court will look to see if: 1) a defendant has been in custody in county jail during the pendency of the matter, 2) any "impairment" of possible witnesses and the defendant's ability to question the witness as a result of the delay and 3) the "intangible" effects on the defendant (i.e., stress, etc).

As for a prosecutions delay, a court will generally attempt to determine whether or not the prosecutors delayed because of "bad faith" or neglect or if the delay was due to matters outside of their control, but for which they exercised due diligence (i.e., attempting to locate a witness who is essential to their case, but has not responded to any subpoena to appear or is unwilling to cooperate).

It is only after a court balances all these factors, based on the evidence or arguments presented on the motion, does the court determine if a motion to dismiss based on the violation of speedy trial rules should be granted or not.

Questions based on this?

***General information provided here is for educational and informational purposes only and does not constitute legal advice, nor should it be relied upon as such. It is always wise to consult with an attorney licensed in your jurisdiction as they would be in the best position to assist***

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Customer reply replied 1 year ago
If the case is dismissed, can the charges be brought again? Is do, dies the original accuser have to testify?

Generally, charges can indeed be re-filed once after a matter has been dismissed as a result of a speedy trial violation if prosecutor's can show, at the time of re-charging, that there is good cause, which can include one of the following:

"(1) That substantial new evidence has been discovered by the
prosecution which would not have been known through the exercise of
due diligence at, or prior to, the time of termination of the action.
(2) That the termination of the action was the result of the
direct intimidation of a material witness, as shown by a
preponderance of the evidence.
(3) That the termination of the action was the result of the
failure to appear by the complaining witness..."

If charges are re-filed, it basically starts everything over. This will also require (and at all times will require) the accuser's testimony (as that is the only way a prosecutor can present their side of the case, under the rules of evidence, i.e., not "second hand" accounts as that would constitute inadmissible hearsay under most circumstances).

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Customer reply replied 1 year ago
Is there a statute of limitation in how long a prosecutor can refile if the case is dropped for not meeting the speedy trial?

Section 1387 of the penal code provides that prosecutors have six months after dismissal based on a speedy trial violation to re-charge a defendant.

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Customer reply replied 1 year ago
Thanks

You're welcome.

I hope the general information provided here has shed some light.

As always, please remember that experts here are not employees of JustAnswer and do not get credited for taking the time to provide general information to individuals until they click ACCEPT and rate the assistance provided by clicking on the stars on your screen. Your cooperation in this regard would be much appreciated.

***General information provided here is for educational and informational purposes only and does not constitute legal advice, nor should it be relied upon as such. It is always wise to consult with an attorney licensed in your jurisdiction as they would be in the best position to assist***

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I see you have read my response

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Thanks.

Legal-Kal
Legal-Kal, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 600
Experience: Attorney at Law Offices of Khaled Issa
Verified
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Legal-Kal
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