Under the US Constitution, an accused enjoys the right to a speedy trial. US v. Danylo, 73 M.J. 183 (C.A.A.F. 2013). A service members 6th Amendment right to a speedy trial triggers upon the preferral of charges or pretrial restraint. That right is also codified in Article 10, UCMJ. Military courts look at 4 issues (so-called Barker/Moreno factors) when deciding whether the 6th Amendment right to a speedy trial has been violated:

  1. The length of the delay;
  2. The reason for the delay;
  3. Whether the accused demanded a speedy trial; and,
  4. Whether there was any prejudice to the accused (usually the loss of evidence due to the delay).

Generally, the appellate courts do not view it as a speedy trial violation for the government to try co-accused before the accused - thereby creating delay. There have been cases - in the law - where individuals have spent upwards of 350 days in pretrial confinement.

Whether there has been a speedy trial violation is a question of law that the courts review de novo. US v. Arriaga, 70 M.J. 51 (C.A.A.F. 2010).

Article 10 requires that once an accused is placed in pretrial confinement, immediate steps have to be taken to inform them of the charges, bring them to trial, or dismiss the charges. Article 10 provides a more demanding standard than the 6th Amendment. This is partly because the military does not have a bail system like the civilian sector.

The right to a speedy trial can be waived for purposes of a guilty plea.

Rule for Courts-Martial 707 also creates a right to a speedy trial. It basically requires that the accused be brought to trial within 120 days after pretrial confinement. Unfortunately, all sorts of government excuses can constitute good cause. Dismissal under R.C.M. 707 usually is without prejudice and allows the government to release the accused from confinement and refile charges.

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    Daniel Conway Partner

    For the better part of the last decade, Mr. Conway has become a nationally recognized resource on military justice. Daniel Conway is a former Marine staff sergeant and captain. He is a proud graduate of the University of Texas at San Antonio and University of New Hampshire School of Law. Mr. Conway is recently a former President of the New Hampshire Bar Association Military Law Section and a current member of the DC Bar. Mr. Conway has also written a book on Military Crimes and Defenses that is near publication with a major ...

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    A Richmond, Virginia native, Mr. Pristera graduated from Virginia Commonwealth University with a degree in Mechanical Engineering. After spending some time as a DuPont engineer, specifically working on Kevlar manufacturing and ballistics applications, Mr. Pristera attended law school at the University of New Hampshire. On July 4, 2010, Mr. Pristera was commissioned in the U.S. Army in the Judge Advocate General’s Corps. Mr. Pristera spent almost six years on active duty. He spent just over three of those years in criminal defense, ...

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    Originally from Portland, Maine, Mr. Galli attended Elmira College in New York on a four-year Army ROTC Scholarship. At Elmira, he double majored in Business Administration and Public Affairs. Mr. Galli graduated from Elmira College in 2009 with a Bachelor of Science degree and was Commissioned as a Second Lieutenant in the United States Army. Mr. Galli began his study of the law in 2009 at the University of New Hampshire School of Law. There, he focused on litigation and honed his advocacy skills as a member of the Advanced Trial ...

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