COURT FOR THE COUNTY OF 
| Chapter 13: Speedy Trial |
Persons charged with crimes in Michigan are entitled to a speedy trial. This right is provided for by
statute, MCL 768.1; MSA 28.1024, by court rule,
This chapter addresses delays in bringing a case to trial. Your client may also have grounds for dismissal if there has been an inordinate delay between the time when the crime was allegedly committed and the time when your client was arrested. Doggett v United States, 505 US 647; 112 SCt 2686; 120 LEd2d 520 (1992); United States v Marion, 404 US 307; 92 SCt 455; 30 LEd2d 468 (1971); People v Bisard, 114 Mich App 784 (1982) [when there is deliberate delay to prejudice your client, little actual prejudice must be shown; where there is a legitimate reason for the delay your client must show that the prejudice to him was greater]; People v Hernandez, 15 Mich App 141 (1968).
13-2 Speedy Trial Release Motions
(1) in felony cases when he or she has been incarcerated for 6 months or more for the same crime or crime based on the same conduct or arising from the same criminal episodes; or
(2) in misdemeanor cases when he or she has been incarcerated for 28 days or more for the same crime or crime based on the same conduct or arising from the same criminal episode.
The court will exclude any periods of delay attributable to your client, such as other proceedings
concerning the defendant, interlocutory appeals, pretrial motions, or trials of other charges. MCR
6.004 (C)(1),(2),(3). The court will also exclude periods of delay from certain types of adjournments
requested by the prosecutor,
There are two additional limitations provided for by statute. If the court believes that the prosecution's witnesses are "enticed or kept away," or are kept from attending court due to "sickness or some inevitable accident," it will deny your motion. MCL 767.38; MSA 28.978. However, MCR 6.001(E) provides that "the rules in this chapter supersede all prior court rules and any statutory procedure pertaining to and inconsistent with a procedure provided by a rule in this chapter." MCR 6.004(C) may supersede MCL 767.38; MSA 28.978.
13-3 Speedy Trial Dismissal Motions
For clients who are not incarcerated, whenever their right to a speedy trial is violated they are entitled to a dismissal of the charges with prejudice. Your client may have a claim that his right to a speedy trial under Article 1, Section 20 of the Michigan Constitution and the Sixth and Fourteenth Amendments to the United States Constitution was violated because of a delay that prejudiced him. The federal right to a speedy trial in state court comes from two sources; the due process clause and the Sixth Amendment right to a speedy trial. To proceed on such a claim, the defendant must show either prejudice from the delay or misconduct by the prosecution for strategic advantage. Doggett v US, above.
The court will consider four factors: 1) the length of the delay, 2) the reason for the delay, 3) your client's assertions of his right, and 4) prejudice to your client. Barker v Wingo, 407 US 514; 92 SCt 2182; 33 LEd2d 101 (1972); People v Hill, 402 Mich 272 (1978); People v Wickham, 200 Mich App 106 (1993).
In preparing your motion, you should consider:
1. Length of the delay. The delay must be 6 months or more, and long delays are permissible if the case is complex or involves lots of witnesses; length of delay is the triggering mechanism, it is not in itself determinative. People v Missouri, 100 Mich App 310 (1980).
2. Reason for the delay. Delays caused by your client and several "neutral" delays are not counted toward determining violations of the right to speedy trial. Hutchison v Marshall, 744 F2d 44 (CA 6, 1984) [delay caused by TV stations seeking order to televise trial]; People v Johnson, 41 Mich App 34 (1971) [delay caused by defendant's evasion of police trying to arrest him]; People v Chism, 32 Mich App 610 (1971), aff'd 390 Mich 104 (1973) [delay caused by defendant's appeal of denial of petition for counsel and continuance to prepare for additional prosecution witnesses]; People v Gilmore, 22 Mich App 442 (1997) [delay caused by motion for discovery, defendant did not object to adjournments and he was not incarcerated]. Any delay caused by the prosecution to chill the exercise of a right will result in a dismissal. People v Harrison, 386 Mich 269 (1971); Cain v Smith, 686 F2d 374 (CA6, 1982); US v Graham, 128 F3d 372 (CA6, 1997). Delays caused by docket congestion will count against the prosecution. Barker v Wingo, 407 US 514; 92 SCt 2182; 33 LEd2d 101 (1972); People v Rufus Jones, 121 Mich App 484 (1982). Unintentional delays, such as crowded courts and overworked prosecutors, are weighted less heavily than intentional delays, but are charged to the government. Strunk v US, 412 US 434; 93 SCt 2260; 37 LEd2d 56 (1973). Unexplained delays are also charged against the prosecution. People v Bennett, 84 Mich App 408 (1978); People v Davis, above. Delays taken by the trial court because of the illness and death of the assigned judge, People v Broyer, 394 Mich 107 (1975), or to wait for a Supreme Court ruling on the validity of the offense, People v Farmer, 127 Mich App 472 (1983), are not excused, but delays caused by a prosecutor's appeal do not violate a defendant's speedy trial rights (unless the appeal is frivolous). People v James, 436 Mich 851 (1990); People v Hammond, 84 Mich App 60 (1978); People v Lowenstein, 118 Mich App 475 (1982).
3. Assertion of the right to speedy trial. Absence of a demand for a speedy trial will constitute a waiver of the right to speedy trial only if circumstances convincingly show that your client chose not to assert the right; the failure to assert the right to speedy trial should not weigh too heavily, People v Davis (After Remand), 129 Mich App 622 (1983).
4. Prejudice. Two types of prejudice which a defendant may experience are prejudice to his or her person and prejudice to his or her defense. People v Collins, 388 Mich 680 (1972). After a delay of 18 months, prejudice is presumed. People v DenUyl, 320 Mich 477 (1948); People v Collins, 388 Mich 680 (1972). Prejudice can also be shown by loss of evidence, witnesses, and memory loss. People v Nuss, 75 Mich App 346 (1977), aff'd 405 Mich 437 (1979) [death of witness and inability of other witnesses to recall evidence established prejudice to the defendant]; US v Graham, above [several witnesses suffered memory loss, the coroner died, interview notes were lost]; United States v Haulman, 288 FSupp 775 (1968) [defendants were entitled to a dismissal where six witnesses on their behalf died]; Kelley v Kropp, 259 FSupp 417 (1966) [no prejudice after five-month delay and the death of the defendant's principal alibi witness]. A showing of actual prejudice resulting from the delay is unnecessary. People v Lowenstein, 118 Mich App 475 (1982). On a showing of excessive and unjustifiable delay, and on some showing by the defendant that his defense may have been impaired, the burden shifts to the state to show that the accused was not in fact prejudiced by the delay. Chism v Koehler, 392 FSupp 659, aff'd 527 F2d 612 (CA6, 1976), cert den 425 US 944 (1976).
If your client is incarcerated on another matter and there are untried charges pending against
him, you can move the court to dismiss those charges with prejudice if 180 days have passed
since the defendant notified the prosecutor that he wished to be tried.
13-3-c Interstate Agreement on Detainers (IAD).
The prosecutor must make a good faith effort to bring the charge to trial within 180 days of: 1) the time the prosecutor knows that your client is incarcerated, or, 2) the time from which the Department of Corrections knows or has reason to know that a charge is pending against your client. Under the Michigan statute, the 180-day period begins with the coincidence of either conditions 1 or 2 and condition 3:
1. the issuance of a warrant, indictment or complaint against a prisoner or jail inmate awaiting incarceration;
2. the incarceration of defendant to await imprisonment where there is an untried warrant or indictment pending;
3. the prosecutor knows or should know that the defendant is incarcerated when the warrant is issued, or the DOC knows or should know there is a warrant pending. People v Hill 402 Mich 272 (1978).
A good faith action to commence proceedings must be initiated within 180 days, or the trial court loses jurisdiction; once good faith action is taken, jurisdiction is lost only if the initial action is followed by inexcusable delay. People v Schinzel, On Remand 97 Mich App 508 (1980); People v Perry, 145 Mich App 778 (1985). To show good faith the prosecutor must prove the delays were unavoidable. People v Forrest, 72 Mich App 266 (1977). A delay due to docket congestion is charged to the prosecution. People v Forrest, above; People v Love, 132 Mich App 423 (1983); delays due to an adjournment requested by the defendant are charged to him. People v Crawford, 232 Mich App 608 (1998).
Under the IAD, the 180-day clock begins only when the prosecutor has actually received your client's notice. Fex v Michigan, 507 US 43; 113 SCt 1085; 122 LEd2d 406 (1993).
Your client must send written notice to the prosecutor and court where the charge is pending, demanding a trial along with a certificate from a corrections official stating that your client is incarcerated and the period of incarceration. A letter from the attorney is not sufficient. People v Gallego, 199 Mich App 566 (1993).
Criminal offenses committed by your client while incarcerated and after an escape and before recapture are exempt from the 180-day rule. MCL 780.131; MSA 28.969.
If the prosecutor receives your client's notice and does nothing, your client is entitled to have the charges dismissed with prejudice. MCL 780.133; MSA 28.969(3). The defendant is not required to show prejudice from an IAD violation. However, if the prosecutor's inaction is attributable to lack of notice by the Department of Corrections, your client is entitled to sentence credit for the period of delay.
The time period in the IAD may be tolled during: 1) any period resulting from a necessary and reasonable continuance for good cause; 2) any period during which defendant is unable to stand trial; or 3) any period of delay caused by defendant's request. People v Meyers (On Remand), 124 Mich App 148 (1983).
13.1 Motion for Pre-Trial Release [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF
_________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
Defendant.
__________________________________/
The Defendant, 
, by 
attorney, moves the Court to release him on personal
recognizance. This motion is based on
1. 
is charged pursuant to 
with 
2. 
was arraigned on 
3. 
has been incarcerated in jail for 
awaiting trial, from 
to 
4. 
or
more to answer for the same 
the defendant must be released on personal
recognizance.
5. No trial date has been set.
6. The delay is not attributable to any actions taken by 
or joinder with any
codefendant whose time for trial has not run.
7. There is no exceptional circumstance justifying the need for more time to prepare the prosecution's case.
8. All material evidence is available.
9. There is no good cause to justify the delay.
For these reasons, 
requests that this Court release 
on personal
recognizance.
Respectfully submitted,
___________________
Attorney for Defendant
13.2 Motion for Speedy Trial Dismissal [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
__________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
Defendant.
_________________________________/
The Defendant, 
, by 
attorney, moves this Court to dismiss the charges
against him because his right to a speedy trial has been violated. This motion is based on the Fifth, Sixth and
Fourteenth Amendments to the United States Constitution, Article 1 section 20 of the Michigan Constitution,
and the following reasons:
1. 
is charged pursuant to 
with 
2. 
was arrested on 
3. 
was arraigned on 
4. A delay of greater than six months has resulted in prejudice to 
.
5. 
did not cause the delay.
6. There is no legitimate reason for the delay.
7. The Fifth, Sixth and Fourteenth Amendments to the United States Constitution guarantee the defendant a speedy trial. Barker v Wingo, 407 US 514; 92 SCt 2182; 33 LEd 101 (1972).
8. Article 1 section 20 of the Michigan Constitution guarantees the defendant a speedy trial. People v DenUyl, 320 Mich 477 (1978).
For these reasons 
requests that this Court dismiss the charges against
.
Respectfully submitted,
___________________
Attorney for Defendant