The right to a speedy trial is guaranteed to criminal defendants by the federal and Michigan Constitutions, as well as by statute. US Const, Am VI; Const 1963, art 1, § 20; MCL 768.1. “The defendant and the people are entitled to a speedy trial and to a speedy resolution of all matters before the court.” MCR 6.004(A).1 “‘The time for judging whether the right to a speedy trial has been violated runs from the date of the defendant’s arrest.’” People v Patton, 285 Mich App 229, 236 (2009), quoting People v Williams, 475 Mich 245, 261 (2006). “Whenever the defendant’s constitutional right to a speedy trial is violated, the defendant is entitled to dismissal of the charge with prejudice.” MCR 6.004(A). To preserve the issue of speedy trial for appeal, a defendant must make a formal demand for a speedy trial on the record. People v Cain, 238 Mich App 95, 111 (1999).
A defendant waives for appeal the right to a speedy trial by pleading guilty. People v Scott, 275 Mich App 521, 524 (2007). “[A] plea of nolo contendere has the same effect upon a defendant’s ability to raise an issue on appeal as does a plea of guilty.” People v New, 427 Mich 482, 493 (1986). “Taken together, Scott and New would suggest that a defendant who has pleaded nolo contendere has waived any speedy trial claim on appeal.” People v Jones, ___ Mich App ___, ___ (2024) (emphasis added). However, the Michigan Supreme Court indicated that this might not be a settled issue when it remanded People v Horton, 500 Mich 1034 (2017), for consideration of that question; but the parties settled before the question was resolved. Jones, ___ Mich App at ___ n 1.
“A defendant’s right to a speedy trial is not violated after a fixed number of days.” People v Smith, ___ Mich App ___, ___ (2024) (cleaned up). “Rather, when evaluating a speedy-trial claim, the reviewing court is required to balance four factors: (1) the length of delay, (2) the reason for delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the defendant.” Id. at ___ (quotation marks and citation omitted). See also People v Williams, 475 Mich 245, 261-262 (2006).
“Although not determinative of a speedy trial claim, length of delay is a factor that triggers an investigation of the speedy trial issue.” People v Hammond, 84 Mich App 60, 67 (1978). “The time for judging whether the right to a speedy trial has been violated runs from the date of the defendant’s arrest.” People v Smith, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). Where there has been a delay of at least six months after a defendant’s arrest, further investigation into a claim of denial of the right to a speedy trial is necessary. People v Daniel, 207 Mich App 47, 51 (1994). “Following a delay of eighteen months or more, prejudice is presumed, and the burden shifts to the prosecution to show that there was no injury.” Smith, ___ Mich App at ___ (quotation marks and citation omitted) (presuming prejudice where the length of the delay between defendant’s arrest and jury trial was more than 30 months). Where the delay following a defendant’s arrest is less than 18 months, the defendant bears the burden of showing actual prejudice by reason of the delay. People v Holtzer, 255 Mich App 478, 492 (2003). See People v Cain, 238 Mich App 95, 112-113 (1999) (describing “the outer limits” of troubling delays to be about 31 months and ruling that the 27-month delay in Cain was “somewhat lengthy” and “longer than a routine period,” but did not weigh the first speedy trial factor in the defendant’s favor); see also People v Jones, ___ Mich App ___, ___ (2024) (“Although the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge,” a “mere” 15-month delay between the defendant’s arrest and nolo contendere plea weighed against defendant) (quotation marks and citation omitted).
Regarding the second prong—reasons for delay—the court balances the conduct of both the prosecution and the defendant. People v Collins, 388 Mich 680, 690 (1972). “The reasons for delay are examined by [the court] and each period of delay is assigned to either the prosecutor or the defendant.” People v Ross, 145 Mich App 483, 491 (1985). “In assessing this factor, reviewing courts may consider which portions of the delay were attributable to each party when determining whether a defendant’s speedy trial rights have been violated and may attribute unexplained delays—or inexcusable delays caused by the court—to the prosecution.” People v Smith, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted).
Ordinarily, “delays caused by defense counsel are properly attributed to the defendant, even where counsel is assigned[,]” because “assigned counsel generally are not state actors for purposes of a speedy-trial claim.” Vermont v Brillon, 556 US 81, 92, 94 (2009). However, it is possible that an assigned counsel’s delay could be charged to the state if a breakdown in a state’s public defender system caused the delay. Id. at 94.
“[I]f the defendant has not contributed to the delay, a period of otherwise unexplained inaction in excess of 180 days in the prosecution of a charge pending against an inmate is per se a violation of the statute, unless the people make an affirmative showing of exceptional and unavoidable circumstances which hamper the normally efficient functioning of the trial courts.” People v Forrest, 72 Mich App 266, 273 (1976).
“Where a delay is unexplained, it is charged to the prosecution.” Ross, 145 Mich App at 491. “Although delays and docket congestion inherent in the court system are technically attributable to the prosecution, they are given a neutral tint and are assigned only minimal weight in determining whether a defendant was denied a speedy trial.” Smith, ___ Mich App at ___ (quotation marks and citation omitted).
Delays occasioned by the prosecution’s successful pursuit of an interlocutory appeal are “‘taken out of the calculation,’” and therefore, are not attributable to either party when determining whether a defendant’s right to a speedy trial has been violated. People v Waclawski, 286 Mich App 634, 664 (2009), quoting People v Missouri, 100 Mich App 310, 321 (1980).
“[D]elays caused by the COVID-19 pandemic are not attributable to the prosecution for purposes of a speedy-trial claim” because “[t]he government simply cannot be faulted for a highly contagious and mutating virus.” Smith, ___ Mich App at ___ (quotation marks and citation omitted); see also People v Jones, ___ Mich App ___, ___ (2024) (holding that the “periods of time between hearings were especially reasonable given the presence of the COVID-19 pandemic, and the burden and slowdown on court operations that it caused”). In Smith, the defendant “was incarcerated for over two and a half years before a jury convicted him of three counts of first-degree murder, along with several firearm possession charges.” Id. at ___. Although the length of the delay created “a presumption of prejudice to [defendant], nearly all the delay stemmed from emergency public-health measures taken to limit the spread of COVID-19, and the delay did not prejudice [defendant’s] ability to defend against the charges.” Id. at ___. The Court observed that “although the delay in bringing [defendant] to trial was substantial, the main reason for the delay was the unanticipated impact of the COVID-19 pandemic, which is not held against the prosecution.” Id. at ___. Accordingly, the Smith Court held that the defendant did not establish “a violation of his right to a speedy trial” after “[b]alancing all the relevant factors.” Id. at ___ (holding that the prosecution “overcame the presumption of prejudice by showing that [defendant’s] defense was not hindered by the delay in commencing trial”).
A defendant’s assertion of his or her right to a speedy trial is the third factor the court must consider in determining whether the right to a speedy trial has been violated. People v Cain, 238 Mich App 95, 112 (1999). “A preliminary question on this factor is when precisely defendant first asserted his right to a speedy trial.” People v Jones, ___ Mich App ___, ___ (2024). While failure to assert the right to a speedy trial does not automatically constitute a waiver of the right, it is strong evidentiary support for the conclusion that the defendant’s right was not violated. People v Collins, 388 Mich 680, 692-694 (1972). In People v Missouri, 100 Mich App 310, 322 (1980), the Court of Appeals concluded that the defendants’ assertion of the right to a speedy trial two weeks before trial and nearly 30 months after indictment was strong evidence that the delay had not caused a serious deprivation of their right to a speedy trial.
The final inquiry into a claim of a speedy trial violation is whether the defendant experienced any prejudice as a result of the delay. Collins, 388 Mich at 694. “There are two types of prejudice which a defendant may experience, that is, prejudice to his person and prejudice to his defense.” People v Smith, ___ Mich App ___, ___ (2024) (citation omitted). “Pretrial incarceration necessarily results in a degree of prejudice to the person.” Id. at ___ (quotation marks and citation omitted). “And while anxiety caused by a lengthy delay can occur, anxiety alone cannot establish a speedy-trial violation.” Id. at ___. “Yet impairment of defense is the most serious form of prejudice in the context of a speedy-trial claim because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id. at ___ (cleaned up). “If witnesses die or disappear during a delay, the prejudice is obvious.” Id. at ___ (quotation marks and citation omitted). “Loss of memory caused by the passage of time can also prejudice the defense.” Id. at ___. “But in considering prejudice, a reviewing court should look for examples about how the delay between arrest and trial harmed the defendant’s ability to defend against the charges.” Id. at ___ (noting that general allegations of prejudice—e.g., delay causes witness’s memories to fade—are insufficient); see also Gilmore, 222 Mich App at 462 (general allegation of financial burden is not sufficient to establish a speedy-trial violation). A defendant must “specifically argue[] how the delay caused him prejudice.” People v Rivera, 301 Mich App 188, 194 (2013) (general statement that imprisonment for 10 months on unrelated charges caused prejudice was insufficient to establish that defendant was denied his right to a speedy trial).
In Smith, the defendant “suffered some amount of personal prejudice by the length of his incarceration awaiting trial, particularly considering the risk of exposure to COVID-19 in jails and prisons.” Smith, ___ Mich App at ___ (concluding that “although the delay in bringing [defendant] to trial was substantial, the main reason for the delay was the unanticipated impact of the COVID-19 pandemic, which [was] not held against the prosecution”). However, the record established that defendant “did not suffer prejudice to his defense as a result of the delay between arrest and trial.” Id. at ___(noting that “the delay did not create any identifiable prejudice to the defense”). Thus, the prosecution “overcame the presumption of prejudice by showing that [defendant’s] defense was not hindered by the delay in commencing trial.” Id. at ___. Accordingly, after “[b]alancing all the relevant factors,” the Court of Appeals held that the defendant did not establish “a violation of his right to a speedy trial.” Id. at ___. See also People v Jones, ___ Mich App ___, ___ (2024) (holding that “[t]he prejudice to the person that defendant [identified was] outweighed by the notable lack of any prejudice to his defense” where “defendant provide[d] no elaboration on how his defense would have been stronger with an earlier trial date,” and the record “indicate[d] that his plea did not come from the pressure of wanting to end his pretrial incarceration, but instead was a decision that he would rather take the plea offer than go to trial”).
“MCR 6.004(C) . . . allows for the release on bond of defendants who are jailed for more than 180 days as a result of pending charges.” People v Lown, 488 Mich 242, 249 (2011). Specifically, MCR 6.004(C) provides:
“In a felony case in which the defendant has been incarcerated for a period of 180 days or more to answer for the same crime or a crime based on the same conduct or arising from the same criminal episode, or in a misdemeanor case in which the defendant has been incarcerated for a period of 28 days or more to answer for the same crime or a crime based on the same conduct or arising from the same criminal episode, the defendant must be released on personal recognizance, unless the court finds by clear and convincing evidence that the defendant is likely either to fail to appear for future proceedings or to present a danger to any other person or the community.”
“In computing the 28-day and 180-day periods, the court is to exclude
(1) periods of delay resulting from other proceedings concerning the defendant, including but not limited to competency and criminal responsibility proceedings, pretrial motions, interlocutory appeals, and the trial of other charges,
(2) the period of delay during which the defendant is not competent to stand trial,
(3) the period of delay resulting from an adjournment requested or consented to by the defendant’s lawyer,
(4) the period of delay resulting from an adjournment requested by the prosecutor, but only if the prosecutor demonstrates on the record either
(a) the unavailability, despite the exercise of due diligence, of material evidence that the prosecutor has reasonable cause to believe will be available at a later date; or
(b) exceptional circumstances justifying the need for more time to prepare the state’s case,
(5) a reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run, but only if good cause exists for not granting the defendant a severance so as to enable trial within the time limits applicable, and
(6) any other periods of delay that in the court’s judgment are justified by good cause, but not including delay caused by docket congestion.” MCR 6.004(C).
G.Untried Charges Against State Prisoners—180-Day Rule
MCR 6.004(D)(1) provides that, except for crimes exempted by MCL 780.131(2)2:
“the inmate shall be brought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting attorney of the county in which the warrant, indictment, information, or complaint is pending written notice of the place of imprisonment of the inmate and a request for final disposition of the warrant, indictment, information, or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time or disciplinary credits earned, the time of parole eligibility of the prisoner, and any decisions of the parole board relating to the prisoner. The written notice and statement shall be delivered by certified mail.” See also MCL 780.131.
MCR 6.004(D)(2) sets out the remedy for a violation of the 180-day rule:
“In the event that action is not commenced on the matter for which request for disposition was made as required in [MCR 6.004(D)(1)], no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information, or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” See MCL 780.133.
The 180-day rule does not require that trial be commenced within 180 days, but rather, that the prosecution make good-faith efforts on the case during the 180-day period, and that the prosecution then promptly proceed to prepare the case for trial. People v Hendershot, 357 Mich 300, 304 (1959). If the prosecution takes preliminary action within the 180-day period but the initial action is followed by inexcusable delay that shows an intent not to promptly bring the case to trial, the court may find the absence of good-faith action and dismiss the case. Id. at 303-304. For example, in People v Davis, 283 Mich App 737, 743-744 (2009), the trial court erred in dismissing the pending charges against the defendant, because the prosecution commenced proceedings against the defendant within 180 days of receiving notice from the Department of Corrections that the defendant was incarcerated, thereby satisfying the requirements of MCL 780.131 (prisoner must be brought to trial within 180 days) and MCL 780.133 (dismissal required only if action has not been commenced within 180 days). “The prosecution made good-faith efforts to proceed promptly with pretrial proceedings,” and “[t]here [wa]s no indication that any delay in bringing [the] defendant to trial was inexcusable or demonstrated an intent not to promptly bring the case to trial.” Davis, 283 Mich App at 743. See also People v Lown, 488 Mich 242, 246-247 (2011) (180-day rule was satisfied where the prosecutor commenced action within 180 days after receiving notice from the Department of Corrections, proceeded promptly to prepare the case for trial, and was ready for trial within the 180-day period).
Conversely, a trial court abuses its discretion if it dismisses criminal charges under the “180-day rule” when “a significant amount of the delay in bringing defendant’s case to trial was not the fault of the prosecutor, but rather resulted from our Supreme Court’s decision to suspend jury trials in the early days of the Covid pandemic.” People v Witkoski, 341 Mich App 54, 56 (2022). However, if the “trial courts [had] remained open for jury trials, but subject to heightened Covid-19 safety measures,” “the prosecutor would have been expected to bring the case to trial promptly because a jury trial would have been permitted.” Id. at 63.
The statutory time period of 180 days begins to run when the prosecution receives notice from the Department of Corrections:
“The statutory trigger is notice to the prosecutor of the defendant’s incarceration and a departmental request for final disposition of the pending charges. The statute does not trigger the running of the 180-day period when the Department of Corrections actually learns, much less should have learned, that criminal charges were pending against an incarcerated defendant.” People v Williams, 475 Mich 245, 259 (2006), overruling People v Hill, 402 Mich 272 (1978), and People v Castelli, 370 Mich 147 (1963), to the extent they were inconsistent with MCL 780.131.
See also People v Rivera, 301 Mich App 188, 192 (2013) (noting that “[t]he clear language of MCL 780.131(1) provides that the MDOC must send written notice, by certified mail, to the prosecutor to trigger the 180-day requirement[,]” and holding that because “the MDOC sent a notice to the district court[] . . . [but] did not send, by certified mail, a notice to the prosecuting attorney[,] . . . the 180-day rule was never triggered, so it could not have been violated[]”).
Unless specifically excepted under MCL 780.131(2), the 180-day rule applies to any untried charge against any prisoner, without regard to potential penalty. Williams, 475 Mich at 254-255 (2006), overruling People v Smith, 438 Mich 715 (1991), to the extent of its inconsistency with MCL 780.131.
The Michigan statutes concerning extradition are found in the Michigan Code of Criminal Procedure. See MCL 776.9—MCL 776.13. A thorough discussion of extradition law is beyond the scope of this benchbook. For general information concerning extradition, see Extradition To and From the United States: Overview of the Law and Recent Treaties; see also Wikipedia, Extradition law in the United States.
“The purpose of the [Interstate Agreement on Detainers (IAD)] is to facilitate the prompt disposition of outstanding charges against an inmate incarcerated in another jurisdiction.” People v Patton, 285 Mich App 229, 232 (2009). A detainer, under the IAD, MCL 780.601 et seq., is generally defined as “a notification filed with the institution in which an individual is serving a sentence, advising that the prisoner is wanted to face pending charges in the notifying state.” People v Shue, 145 Mich App 64, 70 (1985). “‘Once a detainer is filed, it is then that the IAD is triggered and compliance with the provisions of the agreement is required.’” Patton, 285 Mich App at 232, quoting People v Gallego (Luis), 199 Mich App 566, 574 (1993). The IAD applies only to prisoners serving a prison sentence; it does not apply to a person in custody awaiting extradition. People v Monasterski, 105 Mich App 645, 653 (1981).
Article III of the IAD involves prisoner-initiated extradition and requires the prisoner to be brought to trial within 180 days after delivering to the prosecutor and appropriate court notice of imprisonment and a request for a final disposition, unless good cause is showing to grant a necessary or reasonable continuance. MCL 780.601, Article III(a); People v Waclawski, 286 Mich App 634, 646 (2009). See People v Swafford, 483 Mich 1 (2009), and People v Duenaz, 306 Mich App 85 (2014), for more detailed information on Article III of the IAD.
Article IV(c) of the IAD involves prosecutor-initiated extradition and requires trial to commence within 120 days of the prisoner’s arrival in the state, unless good cause is shown to grant a necessary or reasonable continuance. MCL 780.601, Article IV(c); Waclawski, 286 Mich App at 646; People v Harris (Michael), 148 Mich App 506, 513 (1986). See Harris (Michael), 148 Mich App 506, and People v Stone, 269 Mich App 240 (2005), for more detailed information on Article IV of the IAD.
“Whether a defendant was denied his constitutional right to a speedy trial is a mixed question of law and fact.” Gilmore, 222 Mich App at 459. Factual findings are reviewed for clear error, and constitutional questions of law are reviewed de novo. Id.
Part C: Pretrial Motions to Suppress Evidence3
1 The Sixth Amendment’s Speedy Trial Clause “does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges[,]” and therefore does not “apply to the sentencing phase of a criminal prosecution[.]” Betterman v Montana, 578 US 437, 439-441(2016) (holding “that the Clause does not apply to delayed sentencing[]”). However, “although the Speedy Trial Clause does not govern[ inordinate delay in sentencing], a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments.” Id. at 439.
2 MCL 780.131(2) exempts crimes committed by a state correctional facility inmate while incarcerated in the facility or after the inmate has escaped but before being returned to Department of Corrections custody.
3 See Chapter 11 for discussion of suppression of evidence on Fourth Amendment grounds.