U.S. Supreme Court Barker v. Wingo, 407
U.S. 514 (1972) Barker v. Wingo No. 71-5255 Argued April 11, 1972 Decided June 22, 1972 407
U.S. 514 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH
CIRCUIT Syllabus Petitioner was not brought to trial for murder until more than
five years after he had been arrested, during which time the
prosecution obtained numerous continuances, initially for the
purpose of first trying petitioner's alleged accomplice so that his
testimony, if conviction resulted, would be available at
petitioner's trial. Before the accomplice was finally convicted, he
was tried six times. Petitioner made no objection to the
continuances until three and one-half years after he was arrested.
After the accomplice was finally convicted, petitioner, after
further delays because of a key prosecution witness' illness, was
tried and convicted. In this habeas corpus proceeding, the Court of
Appeals, concluding that petitioner had waived his right to a
speedy trial for the period prior to his demand for trial, and, in
any event, had not been prejudiced by the delay, affirmed the
District Court's judgment against petitioner. Held: A defendant's constitutional right to a speedy
trial cannot be established by any inflexible rule, but can be
determined only on an ad hoc balancing basis in which the
conduct of the prosecution and that of the defendant are weighed.
The court should assess such factors as the length of and reason
for the delay, the defendant's assertion of his right, and
prejudice to the defendant. In this case, the lack of any serious
prejudice to petitioner and the fact, as disclosed by the record,
that he did not want a speedy trial outweigh opposing
considerations, and compel the conclusion that petitioner was not
deprived of his due process right to a speedy trial. Pp. 407 U. S.
519 -536.

															442 F.2d 1141, affirmed.

															POWELL, J., delivered the opinion for a unanimous Court. WHITE,
J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 407 U. S.
536 . Page 407 U. S. 515 MR. JUSTICE POWELL delivered the opinion of the Court.

															Although a speedy trial is guaranteed the accused by the Sixth
Amendment to the Constitution, [ Footnote 1 ] this Court has dealt with that right on
infrequent occasions. See Beavers v. Haubert, 198 U. S.
77 (1905); Pollard v. United States, 352 U. S. 354 (1957); United States v. Ewell, 383 U.
S. 116 (1966); United States v. Marion, 404 U. S. 307 (1971). See also United States v. Provoo, 17 F.R.D. 183
(D. Md.), aff'd, 30 U.S. 857 (1955). The Court's opinion
in Klopfer v. North Carolina, 386 U.
S. 213 (1967), established that the right to a speedy
trial is "fundamental," and is imposed by the Due Process Clause of
the Fourteenth Amendment on the States. [ Footnote 2 ] See Smith v. Hooey, 393 U.
S. 374 (1969); Dickey v. Florida, 398 U. S.
30 (1070). As MR. JUSTICE BRENNAN Page 407 U. S. 516 pointed out in his concurring opinion in Dickey, in
none of these cases have we attempted to set out the criteria by
which the speedy trial right is to be judged. 398 U.S. at 398 U. S. 401 .
This case compels us to make such an attempt. I On July 20, 1958, in Christian County, Kentucky, an elderly
couple was beaten to death by intruders wielding an iron tire tool.
Two suspects, Silas Manning and Willie Barker, the petitioner, were
arrested shortly thereafter. The grand jury indicted them on
September 15. Counsel was appointed on September 17, and Barker's
trial was set for October 21. The Commonwealth had a stronger case
against Manning, and it believed that Barker could not be convicted
unless Manning testified against him. Manning was naturally
unwilling to incriminate himself. Accordingly, on October 23, the
day Silas Manning was brought to trial, the Commonwealth sought and
obtained the first of what was to be a series of 16 continuances of
Barker's trial. [ Footnote 3 ]
Barker made no objection. By first convicting Manning, the
Commonwealth would remove possible problems of self-incrimination,
and would be able to assure his testimony against Barker.

															The Commonwealth encountered more than a few difficulties in its
prosecution of Manning. The first trial ended in a hung jury. A
second trial resulted in a conviction, but the Kentucky Court of
Appeals reversed because of the admission of evidence obtained by
an illegal search. Manning v. Commonwealth, 328
S.W.2d 421 (1959). At his third trial, Manning was again
convicted, and the Court of Appeals again reversed Page 407 U. S. 517 because the trial court had not granted a change of venue. Manning v. Commonwealth, 346
S.W.2d 755 (1961). A fourth trial resulted in a hung jury.
Finally, after five trials, Manning was convicted, in March, 1962,
of murdering one victim, and, after a sixth trial, in December,
1962, he was convicted of murdering the other. [ Footnote 4 ]

															The Christian County Circuit Court holds three terms each year
-- in February, June, and September. Barker's initial trial was to
take place in the September term of 1958. The first continuance
postponed it until the February, 1959, term. The second continuance
was granted for one month only. Every term thereafter for as long a
the Manning prosecutions were in process, the Commonwealth
routinely moved to continue Barker's case to the next term. When
the case was continued from the June, 1959, term until the
following September, Barker, having spent 10 months in jail,
obtained his release by posting a $5,000 bond. He thereafter
remained free in the community until his trial. Barker made no
objection, through his counsel, to the first 11 continuances.

															When, on February 12, 1962, the Commonwealth moved for the
twelfth time to continue the case until the following term,
Barker's counsel filed a motion to dismiss the indictment. The
motion to dismiss was denied two weeks later, and the
Commonwealth's motion for a continuance was granted. The
Commonwealth was granted further continuances in June, 1962, and
September, 1962, to which Barker did not object.

															In February, 1963, the first term of court following Manning's
final conviction, the Commonwealth moved to set Barker's trial for
March 19. But on the day scheduled for trial, it again moved for a
continuance until the June term. It gave as its reason the
illness Page 407 U. S. 518 of the ex-sheriff who was the chief investigating officer in the
case. To this continuance, Barker objected unsuccessfully.

															The witness was still unable to testify in June, and the trial,
which had been set for June 19, was continued again until the
September term over Barker's objection. This time the court
announced that the case would be dismissed for lack of prosecution
if it were not tried during the next term. The final trial date was
set for October 9, 1963. On that date, Barker again moved to
dismiss the indictment, and this time specified that his right to a
speedy trial had been violated. [ Footnote 5 ] The motion was denied; the trial commenced
with Manning a the chief prosecution witness; Barker was convicted
and given a life sentence.

															Barker appealed his conviction to the Kentucky Court of Appeals,
relying in part on his speedy trial claim. The court affirmed. Barker v. Commonwealth, 385
S.W.2d 671 (1964). In February, 1970, Barker petitioned for
habeas corpus in the United States District Court for the Western
District of Kentucky. Although the District Court rejected the
petition without holding a hearing, the court granted petitioner
leave to appeal in forma pauperis and a certificate of
probable cause to appeal. On appeal, the Court of Appeals for the
Sixth Circuit affirmed the District Court. 442 F.2d 1141 (1971). It
ruled that Barker had waived his speedy trial claim for the entire
period before February, 1963, the date on which the court believed
he had first objected to the delay by filing a motion to dismiss.
In this belief the court was mistaken, for the record reveals Page 407 U. S. 519 that the motion was filed in February, 1962. The Commonwealth so
conceded at oral argument before this Court. [ Footnote 6 ] The court held further that the
remaining period after the date on which Barker first raised his
claim and before his trial -- which it thought was only eight
months but which was actually 20 months -- was not unduly long. In
addition, the court held that Barker had shown no resulting
prejudice, and that the illness of the ex-sheriff was a valid
justification for the delay. We granted Barker's petition for
certiorari. 404 U.S. 1037 (1972). II The right to a speedy trial is generically different from any of
the other rights enshrined in the Constitution for the protection
of the accused. In addition to the general concern that all accused
persons be treated according to decent and fair procedures, there
is a societal interest in providing a speedy trial which exists
separate from, and at times in opposition to, the interests of the
accused. The inability of courts to provide a prompt trial has
contributed to a large backlog of cases in urban courts which,
among other things, enables defendants to negotiate more
effectively for pleas of guilty to lesser offenses and otherwise
manipulate the system. [ Footnote
7 ] In addition, persons released on bond for lengthy periods
awaiting trial have an opportunity to commit other crimes.
[ Footnote 8 ] It must be of
little comfort to the residents of Christian County, Kentucky, to
know that Barker was at large on bail for over four years while
accused of a vicious Page 407 U. S. 520 and brutal murder of which he was ultimately convicted.
Moreover, the longer an accused is free awaiting trial, the more
tempting becomes his opportunity to jump bail and escape. [ Footnote 9 ] Finally, delay between
arrest and punishment may have a detrimental effect on
rehabilitation. [ Footnote
10 ]

															If an accused cannot make bail, he is generally confined, as was
Barker for 10 months, in a local jail. This contributes to the
overcrowding and generally deplorable state of those institutions.
[ Footnote 11 ] Lengthy
exposure to these conditions "has a destructive effect on human
character, and makes the rehabilitation of the individual offender
much more difficult." [ Footnote
12 ] At times the result may even be violent rioting. [ Footnote 13 ] Finally, lengthy
pretrial detention is costly. The cost of maintaining a prisoner in
jail varies from $3 to $9 per day, and this amounts to millions
across Page 407 U. S. 521 the Nation. [ Footnote 14 ]
In addition, society loses wages which might have been earned, and
it must often support families of incarcerated breadwinners.

															A second difference between the right to speedy trial and the
accused's other constitutional rights is that deprivation of the
right may work to the accused's advantage. Delay is not an uncommon
defense tactic. As the time between the commission of the crime and
trial lengthens, witnesses may become unavailable or their memories
may fade. If the witnesses support the prosecution, its case will
be weakened, sometimes seriously so. And it is the prosecution
which carries the burden of proof. Thus, unlike the right to
counsel or the right to be free from compelled self-incrimination,
deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself.

															Finally, and perhaps most importantly, the right to speedy trial
is a more vague concept than other procedural rights. It is, for
example, impossible to determine with precision when the right has
been denied. We cannot definitely say how long is too long in a
system where justice is supposed to be swift but deliberate.
[ Footnote 15 ] As a
consequence, there is no fixed point in the criminal process when
the State can put the defendant to the choice of either exercising
or waiving the right to a speedy trial. If, for example, the State
moves for Page 407 U. S. 522 a 60-day continuance, granting that continuance is not a
violation of the right to speedy trial unless the circumstances of
the case are such that further delay would endanger the values the
right protects. It is impossible to do more than generalize about
when those circumstances exist. There is nothing comparable to the
point in the process when a defendant exercises or waives his right
to counsel or his right to a jury trial. Thus, as we recognized in Beavers v. Haubert, supra, any inquiry into a speedy trial
claim necessitates a functional analysis of the right in the
particular context of the case:

															"The right of a speedy trial is necessarily relative. It is
consistent with delays, and depends upon circumstances. It secures
rights to a defendant. It does not preclude the rights of public
justice."

															198 U.S. at 198 U. S.
87 .

															The amorphous quality of the right also leads to the
unsatisfactorily severe remedy of dismissal of the indictment when
the right has been deprived. This is indeed a serious consequence,
because it means that a defendant who may be guilty of a serious
crime will go free, without having been tried. Such a remedy is
more serious than an exclusionary rule or a reversal for a new
trial, [ Footnote 16 ] but it
is the only possible remedy. III Perhaps because the speedy trial right is so slippery, two rigid
approaches are urged upon us as ways of eliminating some of the
uncertainty which courts experience Page 407 U. S. 523 in protecting the right. The first suggestion is that we hold
that the Constitution requires a criminal defendant to be offered a
trial within a specified time period. The result of such a ruling
would have the virtue of clarifying when the right is infringed and
of simplifying courts' application of it. Recognizing this, some
legislatures have enacted laws, and some courts have adopted
procedural rules which more narrowly define the right. [ Footnote 17 ] The United States Court
of Appeals for the Second Circuit has promulgated rules for the
district courts in that Circuit establishing that the government
must be ready for trial within six months of the date of arrest,
except in unusual circumstances, or the charge will be dismissed.
[ Footnote 18 ] This type of
rule is also recommended by the American Bar Association. [ Footnote 19 ]

															But such a result would require this Court to engage in
legislative or rulemaking activity, rather than in the adjudicative
process to which we should confine our efforts. We do not establish
procedural rules for the States, except when mandated by the
Constitution. We find no constitutional basis for holding that the
speedy trial right can be quantified into a specified number of
days or months. The States, of course, are free to prescribe a
reasonable period consistent with constitutional standards, but our
approach must be less precise.

															The second suggested alternative would restrict
consideration Page 407 U. S. 524 of the right to those case in which the accused has demanded a
speedy trial. Most States have recognized what is loosely referred
to as the "demand rule," [ Footnote 20 ] although eight States reject it. [ Footnote 21 ] It is not clear,
however, precisely what is meant by that term. Although every
federal court of appeals that has considered the question has
endorsed some kind of demand rule, some have regarded the rule
within the concept of waiver, [ Footnote 22 ] whereas others have viewed it as a factor to
be weighed Page 407 U. S. 525 in assessing whether there has been a deprivation of the speedy
trial right. [ Footnote 23 ]
We shall refer to the former approach as the demand-waiver
doctrine. The demand-waiver doctrine provides that a defendant
waives any consideration of his right to speedy trial for any
period prior to which he has not demanded a trial. Under this rigid
approach, a prior demand is a necessary condition to the
consideration of the speedy trial right. This essentially was the
approach the Sixth Circuit took below.

															Such an approach, by presuming waiver of a fundamental right
[ Footnote 24 ] from inaction,
is inconsistent with this Court's pronouncements on waiver of
constitutional rights. The Court has defined waiver as "an
intentional relinquishment or abandonment of a known right or
privilege." Johnson v. Zerbst, 304 U.
S. 458 , 304 U. S. 464 (1938). Courts should "indulge every reasonable presumption against
waiver," Aetna Ins. Co. v. Kennedy, 301 U.
S. 389 , 301 U. S. 393 (1937), and they should "not presume acquiescence Page 407 U. S. 526 in the loss of fundamental rights," Ohio Bell Tel. Co. v.
Public Utilities Comm'n, 301 U. S. 292 , 301 U. S. 307 (137). In Carnley v. Cochran, 369 U.
S. 506 (1962), we held:

															"Presuming waiver from a silent record is impermissible. The
record must show, or there must be an allegation and evidence which
show, that an accused was offered counsel but intelligently and
understandably rejected the offer. Anything less is not
waiver." Id. at 369 U. S. 516 .
The Court has ruled similarly with respect to waiver of other
rights designed to protect the accused. See, e.g., Miranda v.
Arizona, 384 U. S. 436 , 384 U. S.
475 -476 (1966); Boykin v. Alabama, 395 U.
S. 238 (1969).

															In excepting the right to speedy trial from the rule of waiver
we have applied to other fundamental rights, courts that have
applied the demand-waiver rule have relied on the assumption that
delay usually works for the benefit of the accused, and on the
absence of any readily ascertainable time in the criminal process
for a defendant to be given the choice of exercising or waiving his
right. But it is not necessarily true that delay benefits the
defendant. There are cases in which delay appreciably harms the
defendant's ability to defend himself. [ Footnote 25 ] Page 407 U. S. 527 Moreover, a defendant confined to jail prior to trial is
obviously disadvantaged by delay as is a defendant released on bail
but unable to lead a normal life because of community suspicion and
his own anxiety.

															The nature of the speedy trial right does make it impossible to
pinpoint a precise time in the process when the right must be
asserted or waived, but that fact does not argue for placing the
burden of protecting the right solely on defendants. A defendant
has no duty to bring himself to trial; [ Footnote 26 ] the State has that duty as well as the
duty of insuring that the trial is consistent with due process.
[ Footnote 27 ] Moreover, for
the reasons earlier expressed, society has a particular interest in
bringing swift prosecutions, and society's representatives are the
ones who should protect that interest.

															It is also noteworthy that such a rigid view of the
demand-waiver rule places defense counsel in an awkward position.
Unless he demands a trial early and often, he is in danger of
frustrating his client's right. If counsel is willing to tolerate
some delay because he finds it reasonable and helpful in preparing
his own case, he may be unable to obtain a speedy trial for his
client at the end of that time. Since, under the demand-waiver
rule, no time Page 407 U. S. 528 runs until the demand is made, the government will have whatever
time is otherwise reasonable to bring the defendant to trial after
a demand has bee made. Thus, if the first demand is made three
months after arrest in a jurisdiction which prescribes a six-month
rule, the prosecution will have a total of nine months -- which may
be wholly unreasonable under the circumstances. The result in
practice is likely to be either an automatic, pro forma demand made immediately after appointment of counsel or delays
which, but for the demand-waiver rule, would not be tolerated. Such
a result is not consistent with the interests of defendants,
society, or the Constitution.

															We reject, therefore, the rule that a defendant who fails to
demand a speedy trial forever waives his right. [ Footnote 28 ] This does not mean, however,
that the defendant has no responsibility to assert his right. We
think the better rule is that the defendant's assertion of or
failure to assert his right to a speedy trial is one of the factors
to be considered in an inquiry into the deprivation of the right.
Such a formulation avoids the rigidities of the demand-waiver rule
and the resulting possible unfairness in its application. It allows
the trial court Page 407 U. S. 529 to exercise a judicial discretion based on the circumstances,
including due consideration of any applicable formal procedural
rule. It would permit, for example, a court to attach a different
weight to a situation in which the defendant knowingly fails to
object from a situation in which his attorney acquiesces in long
delay without adequately informing his client, or from a situation
in which no counsel is appointed. It would also allow a court to
weigh the frequency and force of the objections, as opposed to
attaching significant weight to a purely pro forma objection.

															In ruling that a defendant has some responsibility to assert a
speedy trial claim, we do not depart from our holdings in other
cases concerning the waiver of fundamental rights, in which we have
placed the entire responsibility on the prosecution to show that
the claimed waiver was knowingly and voluntarily made. Such cases
have involved rights which must be exercised or waived at a
specific time or under clearly identifiable circumstances, such as
the rights to plead not guilty, to demand a jury trial, to exercise
the privilege against self-incrimination, and to have the
assistance of counsel. We have shown above that the right to a
speedy trial is unique in its uncertainty as to when and under what
circumstances it must be asserted or may be deemed waived. But the
rule we announce today, which comports with constitutional
principles, places the primary burden on the courts and the
prosecutors to assure that cases are brought to trial. We hardly
need add that, if delay is attributable to the defendant, then his
waiver may be given effect under standard waiver doctrine, the
demand rule aside.

															We therefore reject both of the inflexible approaches -- the
fixed-time period because it goes further than the Constitution
requires; the demand-waiver rule because it is insensitive to a
right which we have deemed Page 407 U. S. 530 fundamental. The approach we accept is a balancing test, in
which the conduct of both the prosecution and the defendant are
weighed. [ Footnote 29 ] IV A balancing test necessarily compels courts to approach speedy
trial cases on an ad hoc basis. We can do little more than
identify some of the factors which courts should assess in
determining whether a particular defendant has been deprived of his
right. Though some might express them in different ways, we
identify four such factors: length of delay, the reason for the
delay, the defendant's assertion of his right, and prejudice to the
defendant. [ Footnote 30 ]

															The length of the delay is to some extent a triggering
mechanism. Until there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other
factors that go into the balance. Nevertheless, because of the
imprecision of the right to speedy trial, the length of delay that
will provoke such an inquiry is necessarily dependent upon the
peculiar Page 407 U. S. 531 circumstances of the case. [ Footnote 31 ] To take but one example, the delay that can
be tolerated for an ordinary street crime is considerably less than
for a serious, complex conspiracy charge.

															Closely related to length of delay is the reason the government
assigns to justify the delay. Here, too, different weights should
be assigned to different reasons. A deliberate attempt to delay the
trial in order to hamper the defense should be weighted heavily
against the government. [ Footnote 32 ] A more neutral reason such as negligence or
overcrowded courts should be weighted less heavily but nevertheless
should be considered since the ultimate responsibility for such
circumstances must rest with the government, rather than with the
defendant. Finally, a valid reason, such as a missing witness,
should serve to justify appropriate delay.

															We have already discussed the third factor, the defendant's
responsibility to assert his right. Whether and how a defendant
asserts his right is closely related to the other factors we have
mentioned. The strength of his efforts will be affected by the
length of the delay, to some extent by the reason for the delay,
and most particularly by the personal prejudice, which is not
always readily identifiable, that he experiences. The more serious
the deprivation, the more likely a defendant is to complain. The
defendant's assertion of his speedy trial right, then, is entitled
to strong evidentiary weight in determining Page 407 U. S. 532 whether the defendant is being deprived of the right. We
emphasize that failure to assert the right will make it difficult
for a defendant to prove that he was denied a speedy trial.

															A fourth factor is prejudice to the defendant. Prejudice, of
course, should be assessed in the light of the interests of
defendants which the speedy trial right was designed to protect.
This Court has identified three such interests: (i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that the
defense will be impaired. [ Footnote 33 ] Of these, the most serious is the last,
because the inability of a defendant adequately to prepare his case
skews the fairness of the entire system. If witnesses die or
disappear during a delay, the prejudice is obvious. There is also
prejudice if defense witnesses are unable to recall accurately
events of the distant past. Loss of memory, however, is not always
reflected in the record, because what has been forgotten can rarely
be shown.

															We have discussed previously the societal disadvantages of
lengthy pretrial incarceration, but obviously the disadvantages for
the accused who cannot obtain his release are even more serious.
The time spent in jail awaiting trial has a detrimental impact on
the individual. It often means loss of a job; it disrupts family
life; and it enforces idleness. Most jails offer little or no
recreational or rehabilitative programs. [ Footnote 34 ] The time spent in Page 407 U. S. 533 jail is simply dead time. Moreover, if a defendant is locked up,
he is hindered in his ability to gather evidence, contact
witnesses, or otherwise prepare his defense. [ Footnote 35 ] Imposing those consequences on
anyone who has not yet been convicted is serious. It is especially
unfortunate to impose them on those persons who are ultimately
found to be innocent. Finally, even if an accused is not
incarcerated prior to trial, he is still disadvantaged by
restraints on his liberty and by living under a cloud of anxiety,
suspicion, and often hostility. See cases cited in n 33, supra. We regard none of the four factors identified above as either a
necessary or sufficient condition to the finding of a deprivation
of the right of speedy trial. Rather, they are related factors, and
must be considered together with such other circumstances as may be
relevant. In sum, these factors have no talismanic qualities;
courts must still engage in a difficult and sensitive balancing
process. [ Footnote 36 ] But,
because we are dealing with a fundamental right of the accused,
this process must be carried out with full recognition that the
accused's interest in a speedy trial is specifically affirmed in
the Constitution. V The difficulty of the task of balancing these factors is
illustrated by this case, which we consider to be close. It is
clear that the length of delay between arrest and trial -- well
over five years -- was extraordinary. Only Page 407 U. S. 534 seven months of that period can be attributed to a strong
excuse, the illness of the ex-sheriff who was in charge of the
investigation. Perhaps some delay would have been permissible under
ordinary circumstances so that Manning could be utilized as a
witness in Barker's trial, but more than four years was too long a
period, particularly since a good part of that period was
attributable to the Commonwealth's failure or inability to try
Manning under circumstances that comported with due process.

															Two counterbalancing factors, however, outweigh these
deficiencies. The first is that prejudice was minimal. Of course,
Barker was prejudiced to some extent by living for over four years
under a cloud of suspicion and anxiety. Moreover, although he was
released on bond for most of the period, he did spend 10 months in
jail before trial. But there is no claim that any of Barker's
witnesses died or otherwise became unavailable owing to the delay.
The trial transcript indicates only two very minor lapses of memory
-- one on the part of a prosecution witness -- which were in no way
significant to the outcome.

															More important than the absence of serious prejudice is the fact
that Barker did not want a speedy trial. Counsel was appointed for
Barker immediately after his indictment, and represented him
throughout the period. No question is raised as to the competency
of such counsel. [ Footnote
37 ] Despite the fact that counsel had notice of the motions for
continuances, [ Footnote 38 ]
the record shows no action whatever taken between October 21, 1958,
and February 12, 1962, that could be construed as the assertion of
the speedy trial right. On the latter date, in response to another
motion for continuance, Barker moved Page 407 U. S. 535 to dismiss the indictment. The record does not show on what
ground this motion was based, although it is clear that no
alternative motion was made for a immediate trial. Instead, the
record strongly suggests that, while he hoped to take advantage of
the delay in which he had acquiesced, and thereby obtain a
dismissal of the charges, he definitely did not want to be tried.
Counsel conceded as much at oral argument:

															"Your honor, I would concede that Willie Mae Barker probably --
I don't know this for a fact -- probably did not want to be tried.
I don't think any man wants to be tried. And I don't consider this
a liability on his behalf. I don't blame him."

															Tr. of Oral Arg. 39. The probable reason for Barker's attitude
was that he was gambling on Manning's acquittal. The evidence was
not very strong against Manning, as the reversals and hung juries
suggest, and Barker undoubtedly thought that, if Manning were
acquitted, he would never be tried. Counsel also conceded this:

															"Now, it's true that the reason for this delay was the
Commonwealth of Kentucky's desire to secure the testimony of the
accomplice, Silas Manning. And it's true that, if Silas Manning
were never convicted, Willie Mae Barker would never have been
convicted. We concede this." Id. at 15. [ Footnote
39 ] Page 407 U. S. 536 That Barker was gambling on Manning's acquittal is also
suggested by his failure, following the pro forma motion
to dismiss filed in February, 1962, to object to the Commonwealth's
next two motions for continuances. Indeed, it was not until March,
1963, after Manning's convictions were final, that Barker, having
lost his gamble, began to object to further continuances. At that
time, the Commonwealth's excuse was the illness of the ex-sheriff,
which Barker has conceded justified the further delay. [ Footnote 40 ]

															We do not hold that there may never be a situation in which an
indictment may be dismissed on speedy trial grounds where the
defendant has failed to object to continuances. There may be a
situation in which the defendant was represented by incompetent
counsel, was severely prejudiced, or even cases in which the
continuances were granted ex parte. But barring
extraordinary circumstances, we would be reluctant indeed to rule
that a defendant was denied this constitutional right on a record
that strongly indicates, as does this one, that the defendant did
not want a speedy trial. We hold, therefore, that Barker was not
deprived of his due process right to a speedy trial.

															The judgment of the Court of Appeals is Affirmed. [ Footnote 1 ]

															The Sixth Amendment provides:

															"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence."

															[ Footnote 2 ]

															"We hold here that the right to a speedy trial is as fundamental
as any of the rights secured by the Sixth Amendment." 386 U.S. at 386 U. S.
223 .

															[ Footnote 3 ]

															There is no explanation in the record why, although Barker's
initial trial was set for October 21, no continuance was sought
until October 23, two days after the trial should have begun.

															[ Footnote 4 ]

															Apparently Manning chose not to appeal these final two
convictions.

															[ Footnote 5 ]

															The written motion Barker filed alleged that he had objected to
every continuance since February, 1959. The record does not reflect
any objections until the motion to dismiss, filed in February 1962,
and the objection to the continuances ought by the Commonwealth in
March, 1963, and June, 1963.

															[ Footnote 6 ]

															Tr of Oral Arg. 33.

															[ Footnote 7 ]

															Report of the President's Commission on Crime in the District of
Columbia 256 (1966).

															[ Footnote 8 ]

															In Washington, D.C. in 1968, 70.1% of the persons arrested for
robbery and released prior to trial were re-arrested while on bail.
Mitchell, Bail Reform and the Constitutionality of Pretrial
Detention, 55 Va.L.Rev. 1223, 1236 (1969), citing Report of the
Judicial Council Committee to Study the Operation of the Bail
Reform Act in the District of Columbia 20-21 (1969).

															[ Footnote 9 ]

															The number of these offenses has been increasing. See Annual Report of the Director of the Administrative Office of the
United States Courts, 1971, p. 321.

															[ Footnote 10 ]

															"[I]t is desirable that punishment should follow offence as
closely as possible; for its impression upon the minds of men is
weakened by distance, and, besides, distance adds to the
uncertainty of punishment, by affording new chances of escape."

															J. Bentham, The Theory of Legislation 326 (Ogden ed.1931).

															[ Footnote 11 ]

															To Establish Justice, To Insure Domestic Tranquility, Final
Report of the National Commission on the Causes and Prevention of
Violence 152 (1969).

															[ Footnote 12 ]

															Testimony of James V. Bennett, Director, Bureau of Prisons,
Hearings on Federal Bail Procedures before the Subcommittee on
Constitutional Rights and the Subcommittee on Improvements in
Judicial Machinery of the Senate Committee on the Judiciary, 88th
Cong., 2d Sess., 46 (1964).

															[ Footnote 13 ] E.g., the "Tombs" riots in New York City in 1970. N.Y.
Times, Oct. 3, 1970, p. 1, col. 8.

															[ Footnote 14 ]

															The Challenge of Crime in a Free Society, A Report by the
President's Commission on Law Enforcement and Administration of
Justice 131 (1967).

															[ Footnote 15 ]

															"[I]n large measure because of the many procedural safeguards
provided an accused, the ordinary procedures for criminal
prosecution are designed to move at a deliberate pace. A
requirement of unreasonable speed would have a deleterious effect
both upon the rights of the accused and upon the ability of society
to protect itself." United States v. Ewell, 383 U.
S. 116 , 383 U. S. 120 (1966).

															[ Footnote 16 ]

															MR. JUSTICE WHITE noted in his opinion for the Court in Ewell, supra, at 383 U. S. 121 ,
that overzealous application of this remedy would infringe "the
societal interest in trying people accused of crime, rather than
granting them immunization because of legal error. . . ."

															[ Footnote 17 ]

															For examples, see American Bar Association Project on
Standards for Criminal Justice, Speedy Trial 14-16 (Approved Draft
1968); Note, The Right. to a Speedy Criminal Trial, 57 Col.L.Rev.
846, 863 (1957).

															[ Footnote 18 ]

															Second Circuit Rules Regarding Prompt Disposition of Criminal
Cases (1971).

															[ Footnote 19 ]

															ABA Project, supra, n 17, at 14. For an example of a proposed statutory rule, see Note, The Lagging Right to a Speedy Trial, 51
Va.L.Rev. 1587, 1619 (1965).

															[ Footnote 20 ] E.g., Pines v. District Court of Woodbury County, 233
Iowa 1284, 10 N.W.2d 574 (1943). See generally Note, The
Right to a Speedy Criminal Trial, 57 Col.L.Rev. 846, 853 (1957);
Note, The Lagging Right to a Speedy Trial, 51 Va.L.Rev. 1587,
1601-1602 (1965).

															[ Footnote 21 ] See State v. Maldonado, 92 Ariz. 70, 373 P.2d 583 (en banc), cert. denied, 371 U.S. 928 (1962); Hicks v.
People, 148 Colo. 26, 364 P.2d 877 (1961) (en banc); People v. Prosser, 309 N.Y. 353, 130
N.E.2d 891 (1955); Zehrlaut v. State, 230 Ind. 175, 102 N.E.2d
203 (1951); Flanary v. Commonwealth, 184 Va. 204, 35
S.E.2d 135 (1945); Ex parte Chalfant, 81 W.Va. 93, 93 S.E.
1032 (1917); State v. Hess, 180 Kan. 472, 304 P.2d 474 (1956); State v. Dodson, 226 Ore. 458, 360 P.2d
782 (1961). But see State v. Vawter, 236 Ore. 85, 386 P.2d
915 (1963).

															[ Footnote 22 ] See United States v. Hill, 310 F.2d 601 (CA4 1962); Bruce v. United States, 351 F.2d 318 (CA5 1965), cert.
denied, 384 U.S. 921 (1966); United States v. Perez, 398 F.2d 658 (CA7 1968), cert. denied, 393 U.S. 1080
(1969); Pietch v. United States, 110 F.2d 817 (CA. 10), cert. denied, 310 U.S. 648 (1940); Smith v. United
States, 118 U.S.App.D.C. 38, 331 F.2d 784 (1964) (en banc).
The opinion below in this case demonstrates that the Sixth Circuit
takes a similar approach.

															As an indication of the importance which these courts have
attached to the demand rule, see Perez, supra, in which
the court held that a defendant waived any speedy trial claim,
because he knew of an indictment and made no demand for an
immediate trial, even though the record gave no indication that he
was represented by counsel at the time when he should have made his
demand, and even though he was not informed by the court or the
prosecution of his right to a speedy trial.

															[ Footnote 23 ]

															Although stating that they recognize a demand rule, the approach
of the Eighth and Ninth Circuits seems to be that a denial of
speedy trial can be found despite an absence of a demand under some
circumstances. See Bandy v. United States, 408 F.2d 518
(CA8 1969) (a purposeful or oppressive delay may overcome a failure
to demand); Moser v. United States, 381 F.2d 363 (CA9
1967) (despite a failure to demand, the court balanced other
considerations).

															The Second Circuit's approach is unclear. There are cases in
which a failure to demand is strictly construed as a waiver. E.g., United States v. DeMasi, 445 F.2d 251 (1971). In
other cases, the court has seemed to be willing to consider claims
in which there was no demand. E.g., United States ex rel.
Solomon v. Mancusi, 412 F.2d 88, cert. denied, 396
U.S. 936 (1969). Certainly the District Courts in the Second
Circuit have not regarded the demand rule as being rigid. See
United States v. Mann, 291 F.
Supp. 268 (SDNY 1968); United States v.
Dillon, 183 F.
Supp. 541 (SDNY 1960).

															The First Circuit also seems to reject the more rigid approach. Compare United States v. Butler, 426 F.2d 1275 (1970), with Needel v. Scafati, 412 F.2d 761, cert.
denied, 396 U.S. 861 (1969).

															[ Footnote 24 ] See n 2, supra. [ Footnote 25 ]

															If a defendant deliberately bypasses state procedure for some
strategic, tactical, or other reason, a federal judge on habeas
corpus may deny relief if he finds that the bypassing was the
considered choice of the petitioner. The demand doctrine
presupposes that failure to demand trial is a deliberate choice for
supposed advantage on the assumption that delay always benefits the
accused, but the delay does not inherently benefit the accused any
more than it does the state. Consequently, a man should not be
presumed to have exercised a deliberate choice because of silence
or inaction that could equally mean that he is unaware of the
necessity for a demand.

															Note, The Lagging Right to a Speedy Trial, 51 Va.L.Rev. 1587,
1610 (1965) (footnotes omitted).

															[ Footnote 26 ]

															As MR. CHIEF JUSTICE BURGER wrote for the Court in Dickey v.
Florida: "Although a great many accused persons seek to put off the
confrontation as long as possible, the right to a prompt inquiry
into criminal charges is fundamental, and the duty of the charging
authority is to provide a prompt trial." 398 U.S.
30 , 398 U. S. 37 -38
(1970) (footnote omitted).

															[ Footnote 27 ]

															As a circuit judge, MR. JUSTICE BLACKMUN wrote:

															"The government and, for that matter, the trial court are not
without responsibility for the expeditious trial of criminal cases.
The burden for trial promptness is not solely upon the defense. The
right to 'a speedy . . . trial' is constitutionally guaranteed,
and, as such, is not to be honored only for the vigilant and the
knowledgeable." Hodges v. United States, 408 F.2d 543, 551 (CA8
1969).

															[ Footnote 28 ]

															The American Bar Association also rejects the rigid demand
waiver rule:

															"One reason for this position is that there are a number of
situations, such as where the defendant is unaware of the charge or
where the defendant is without counsel, in which it is unfair to
require a demand. . . . Jurisdictions with a demand.requirement are
faced with the continuing problem of defining exceptions, a process
which has not always been carried out with uniformity. . . . More
important, the demand requirement is inconsistent with the public
interest in prompt disposition of criminal cases. . . . [T]he trial
of a criminal case should not be unreasonably delayed merely
because the defendant does not think that it is in his best
interest to seek prompt disposition of the charge."

															ABA Project, supra, n 17, at 17.

															[ Footnote 29 ]

															Nothing we have said should be interpreted as disapproving a
presumptive rule adopted by a court in the exercise of its
supervisory powers which establishes a fixed time period within
which cases must normally be brought. See n 18, supra. [ Footnote 30 ] See, e.g., United States v. Simmons, 338 F.2d 804, 807
(CA2 1964), cert. denied, 380 U.S. 983 (1965); Note, The
Right to a Speedy Trial, 20 Stan.L.Rev. 476, 478 n. 15 (1968).

															In his concurring opinion in Dickey, MR. JUSTICE
BRENNAN identified three factors for consideration: the source of
the delay, the reasons for it, and whether the delay prejudiced the
interests protected by the right. 398 U.S. at 398 U. S. 48 . He
included consideration of the defendant's failure to assert his
right in the cause-of-delay category, and he thought the length of
delay was relevant primarily to the reasons for delay and its
prejudicial effects. Id. n. 12. In essence, however, there
is little difference between his approach and the one we adopt
today. See also Note, The Right to a Speedy Trial, supra, for another slightly different approach.

															[ Footnote 31 ]

															For example, the First Circuit thought a delay of nine months
overly long, absent a good reason, in a case that depended on
eyewitness testimony. United States v. Butler, 426 F.2d
1275, 1277 (1970).

															[ Footnote 32 ]

															We have indicated on previous occasions that it is improper for
the prosecution intentionally to delay "to gain some tactical
advantage over [defendants] or to harass them." United States
v. Marion, 404 U. S. 307 , 404 U. S. 325 (1971). See Pollard v. United States, 352 U.
S. 354 , 352 U. S. 361 (1957).

															[ Footnote 33 ] United States v. Powell, 383 U.S. at 383 U. S. 120 ; Smith v. Hooey, 393 U. S. 374 , 393 U. S.
377 -378 (1969). In Klopfer v. North Carolina, 386 U. S. 213 , 386 U. S.
221 -222 (1967), we indicated that a defendant awaiting
trial on bond might be subjected to public scorn, deprived of
employment, and chilled in the exercise of his right to speak for,
associate with, and participate in unpopular political causes.

															[ Footnote 34 ] See To Establish Justice, To Insure Domestic
Tranquility, Final Report of the National Commission on the Causes
and Prevention of Violence 152 (1969).

															[ Footnote 35 ]

															There is statistical evidence that persons who are detained
between arrest and trial are more likely to receive prison
sentences than those who obtain pretrial release, although other
factors bear upon this correlation. See Wald, Pretrial
Detention and Ultimate Freedom: A Statistical Study, 39
N.Y.U.L.Rev. 631 (1964).

															[ Footnote 36 ]

															For an example of how the speedy trial issue should be
approached, see Judge Frankel's excellent opinion in United States v. Mann, 291 F.
Supp. 268 (SDNY 1968).

															[ Footnote 37 ]

															Tr. of Oral Arg. 39.

															[ Footnote 38 ] Id. at 4.

															[ Footnote 39 ]

															Hindsight is, of course, 20/20, but we cannot help noting that,
if Barker had moved immediately and persistently for a speedy trial
following indictment, and if he had been successful, he would have
undoubtedly been acquitted, since Manning's testimony was crucial
to the Commonwealth's case. It could not have been anticipated at
the outset, however, that Manning would have been tried six times
over a four-year period. Thus, the decision to gamble on Manning's
acquittal may have been a prudent choice at the time it was
made.

															[ Footnote 40 ]

															At oral argument, counsel for Barker stated:

															"That was after the sheriff, the material witness, was ill; the
man who had arrested the petitioner, yes. And the Sixth Circuit
held that this was a sufficient reason for delay, and we don't deny
this. We concede that this was sufficient for the delay from March,
1963, to October, but it does not explain the delays prior to
that."

															Tr. of Oral Arg. 120.

															MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN joins,
concurring.

															Although the Court rejects petitioner's speedy trial claim and
arms denial of his petition for habeas corpus, Page 407 U. S. 537 it is apparent that had Barker not so clearly acquiesced in the
major delays involved in this case, the result would have been
otherwise. From the Commonwealth's point of view, it is fortunate
that the case was set for early trial and that postponements took
place only upon formal requests to which Barker had opportunity to
object.

															Because the Court broadly assays the factors going into
constitutional judgments under the speedy trial provision, it is
appropriate to emphasize that one of the major purposes of the
provision is to guard against inordinate delay between public
charge and trial, which, wholly aside from possible prejudice to a
defense on the merits, may

															"seriously interfere with the defendant's liberty, whether he is
free on bail or not, and that may disrupt his employment, drain his
financial resources, curtail his associations, subject him to
public obloquy, and create anxiety in him, his family and his
friends." United States v. Marion, 404 U.
S. 307 , 404 U. S. 320 (1971). These factors are more serious for some than for others,
but they are inevitably present in every case to some extent, for
every defendant will either be incarcerated pending trial or on
bail subject to substantial restrictions on his liberty. It is also
true that many defendants will believe that time is on their side,
and will prefer to suffer whatever disadvantages delay may entail.
But, for those who desire an early trial, these personal factors
should prevail if the only countervailing considerations offered by
the State are those connected with crowded dockets and
prosecutorial case loads. A defendant desiring a speedy trial,
therefore, should have it within some reasonable time; and only
special circumstances presenting a more pressing public need with
respect to the case itself should suffice to justify delay. Only if
such special considerations are in the case, and if they outweigh
the inevitable personal prejudice resulting from delay, would Page 407 U. S. 538 it be necessary to consider whether there has been or would be
prejudice to the defense at trial.

															"[T]he major evils protected against by the speedy trial
guarantee exist quite apart from actual or possible prejudice to an
accused's defense." United States v. Marion, supra, at 404 U. S.
320 .

															Of course, cases will differ among themselves as to the
allowable time between charge and trial so as to permit prosecution
and defense adequately to prepare their case. But unreasonable
delay in run-of-the-mill criminal cases cannot be justified by
simply asserting that the public resources provided by the State's
criminal justice system are limited, and that each case must await
its turn. As the Court points out, this approach also subverts the
State's own goals in seeking to enforce its criminal laws.

Summary: The Supreme Court ruled that a defendant's right to a speedy trial must be determined on a case-by-case basis, balancing factors such as the length of the delay, the reasons for it, the defendant's assertion of his right, and any prejudice caused by the delay. In this case, the Court found that the petitioner's right to a speedy trial was not violated, considering the lack of serious prejudice and the petitioner's apparent acquiescence to the delays. The Court emphasized the importance of guarding against inordinate delay, which can interfere with a defendant's liberty and cause personal disruption, regardless of any prejudice to the defense.