CHAPTER IV

COMPARATIVE STUDY ON SPEEDY TRIAL THAT PREVAILS

IN CRIMINAL JUSTICE SYSTEM OF DIFFERENT COUNTRIES

“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable

network of mutuality, tied in a single garment of destiny. Whatever affects one directly,

affects all indirectly.”

-Martin Luther King Junior

Justice administration systems vary from country to country because they

develop in different ways. Justice administration systems also have some similarities

based on historically accepted justice ideals. The Justice administration in India have

inherited common law practice. As such, it is desirable to investigate the procedure

prevailing in countries where common law system is prevailing and the way in which

those countries respond to the problem of delay in criminal trials. The countries, United

State of America (U.S.A.) United Kingdom (U.K.) and Australia have been purposively

selected based on the type of polity, type of law and justice administration system, rule

of law index and similarities to Indian justice administration system. The United state of

America is the world's oldest democracy and the only country which has enacted a

legislation to implement the constitutional guarantee of speedy trail. In USA still has a

jury system and it has one of the highest incarceration rates in the world.1 The Indian

legal system has inherited the British Common law system. There are similarities

between Indian Justice delivery system and justice delivery system of U.K. English law

is mother of common law and Indian law basically based on common law. The
1
Incarceration Nation. (2014), American Psychological Association, available at
https://www.apa.org/monitor/2014/10/incarceration( last visited on 3-07-2023)

148
Australian Legal system is adversarial and places high priority in the presumption of

Innocence. The comparison of the working of criminal justice system of those countries

not only is useful and helpful but also provides opportunities to reform the judicial

system which may be more effective. Hence, the researcher would like to compare

India with other developed countries of the world like U.S.A, U.K and Australia. Three

jurisdictions –U.S.A, U.K and Australia

4.1. Justice Administration system in United Sates of America

The Constitution of United States creates a federal form of government for the

United Sates of America.2 In federal form of government powers of the government are

demarcated between the federal government and the states government. The states

government and federal government are supreme in their respective powers. Therefore,

two types of justice administration system prevail in the U.S.A i.e., Federal Justice

administration and state justice administration.3

The judicial power of the United States shall be vested with one Supreme Court

and in such inferior courts as the congress may from time to time ordain and

establish.4The federal jurisdiction is divided into three main levels. At the bottom, there

are the federal district courts which have original jurisdiction in most of the federal law.

There are more than 1 to 20 judges in each district. The District Court judges are

appointed by the President, and they serve for life. Cases handled by the Federal District

2
The Constitution of United States of America, Preamble
3
Id, at article III
4
Id

149
Courts include violations of the constitution and other Federal law, maritime disputes,

cases directly involving the State or Federal government etc.5

The state courts consist of three levels of courts. The lowest level of State courts

is generally known as inferior courts which include Magistrate Courts, Municipal Court,

Justice of peace Court, Police Court, Traffic Court, County Court etc. They handle

minor civil and criminal cases. More serious offences are handled by superior courts

known as State District Courts or Circuit Courts. They hear appeals from inferior courts

and original jurisdiction from major and civil cases. The major portions of the judicial

trials occur in these courts. ThehighestStatecourtiscalledtheStatecourtofappealsorState.6

4.1.1Speedy Trial in the United States of America

The right to speedy trail is a fundamental constitutional right granted to the

individual accused of crimes in the United States. This right is provided by the Sixth

Amendment to the constitution of United States.7The Constitution protect against undue

delay in criminal prosecution through a series of measures rather than through one

overreaching requirement of timely prosecution. These serial constitutional protections,

in turn are supplemented by statutory protection.8The right toa speedy trialalso finds

expression in the State and Federal Statutory Laws, and the State and Federal Case

Laws.

5
Outline of U.S Legal system, available at https://usa.usembassy.de/etexts/gov/outlinelegalsystem.pdf(
last visited on 4-7-2023)
6
Id
7
Sixth Amendment to the Constitution of United States -In all criminal prosecutions, the accused the
accused shall enjoy the right to a speedy and public trail 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 the nature and causes of accusation; to be confronted with the witness against
him, to have compulsory process for obtaining witnesses in his favor and to have assistance of counsel
for his defence .
8
Betterman v. Montona ,(2006) 578 US 437

150
 The Sixth Amendment to the United States Constitution is a part of the United

States Bill of Rights originally applied only against the Federal Government. The

Supreme Court has applied the protections of this amendment to the states through the

Due Process Clause of the Fourteenth Amendment.9. The framers designed the right to

protect a person from prolonged de facto punishment, extended accusations that limit

his liberty and besmirch his good name before he had full and fair chance to defend

himself. If government accuses someone, it must give him the right speedily so that he

can clear himself at the trial and regain his good name and full liberty and if government

holds the accused in extended pre-trial detention courts must ensure that the accuracy of

the trial itself will not thereby be undermined as might occur if a defendant's prolonged

detention itself causes the loss of key exculpatory evidence.

The same language was incorporated into the Virginia Declaration of Rights of

1776 and from there into the Sixth Amendment of the Constitution of United States of

America10.The provision is an important safeguard to prevent undue and oppressive

incarceration prior to trial, to minimize anxiety and concern accompanying the

accusation and to limit the possibility that long delay will be impairing the ability of an

accused to defend himself.11

The passage of time alone may lead to the loss of witnesses through death or

other reasons and the blurring of memories of available witnesses. But on the other

hand, there is a societal interest in providing a speedy trial which exists separately from

and at times in opposition to the interests of the accused. Persons in jail must be

supported at considerable public expense and often families must be assisted as well.

9
Barron v. Baltimore,(1833) 32 U.S. (7 Pet) 243
10
Ibid
11
Ibid

151
Persons free in the community may commit other crimes, may be tempted over a

lengthening period to "jump" bail, and may be able to use the backlog of cases to

engage in plea bargaining for charges or sentences which do not give society justice.

And delay often retards the deterrent and rehabilitative effects of the criminal law.12

4.1.2. Types of Trials

There are many kinds of trials that take place in United States courtrooms every

day. All trial types, however, can be categorized into four different case types: civil,

criminal, juvenile and traffic.13

• Civil Trial – Civil trial consists of a disagreement between two or more people

or businesses. Examples: disputes between a landlord and tenant, divorce

actions, small claims cases and a case where one person is suing another for

damages.

• Criminal Trial - A trial involves prosecution of individual accused of

committing a crime. The purpose of this trial is to determine the guilt or

innocence of the defendant. The guilty or innocence of the defendant is

determine by the jury or judge based of evidence, witness and legal argument

produced or argued before judge or jury.

• Juvenile Case - A trial that usually involves a minor who is under the age of

seventeen. Juvenile cases are heard by the family division of the Circuit Court.

There are three types of juvenile cases: juvenile delinquency, child protective

hearings and traffic cases.

12
Supra note. 9
13
Supra note 507 at 45

152
 • Traffic Case - This is the most common type of trial, related to a traffic

violation. A traffic violation can be considered either a civil infraction or a

misdemeanour.

4.1.3. Basic Trial Procedure

1. Selection of a Jury- Jurors are selected for a trial from a pool of available

jurors. The judge and attorneys question prospective jurors to find out if

a juror has a personal interest in the trial, or a prejudice or bias that may

influence them during the course of the trial. The attorneys may

challenge undesirable jurors and ask that they be excused from the trial.14

2. Opening Statements - Each side begins the trial by outlining the proof

that they will present to the jury during the course of the trial. Opening

statements are not to be considered evidence, only the expectations of

what each side hopes to prove throughout the trial.15

3. Presentation of Evidence and Testimony of Witnesses - The plaintiff or

prosecution begins the trial by presenting their case first. When a witness

is called to testify in a trial, the side that called the witness first asks

questions in direct examination. The opposing side then has their

opportunity to ask questions in a cross-examination of the witness. Any

physical evidence: documents, weapons or photographs, for example, are

admitted numbered for identification to be presented in the trial.16

14
Offices of the United States Attorneys, U.S Department of Justice, Steps in the federal Criminal
Process, available at https://www.justice.gov/usao/justice-101/trial( last visited on 4-7-2023)
15
Ibid
16
Outline of U.S Legal system, 108, available at https://usa.usembassy.de/etexts/gov/outlinelegalsystem.
pdf( last visited on 4-7-2023)

153
 During the trial, if an attorney finds an objection to a question that is being

asked to a witness, they present their objection to the judge. Questions that are objected

to are of legal technicality and may be argued out of the trial. The judge will then let the

jury know of any pertinent information needed to make their decision or instruct them

to disregard anything that is not relevant to the trial. The judge's ruling to either sustain

or overrule an objection is decided by applying the law that either permits or does not

permit the question to be asked or answered during a trial.17

When each side has presented all their evidence pertaining to the trial, they "rest" their

case.

4. Closing Arguments - The attorneys summarize the evidence that was

presented throughout the trial and try to persuade the jury to find in favor

of the client they are representing. Since plaintiff has the burden of

proof, their side has the first opportunity to open and close the trial.18

5. Presentation of Jury Instructions (Charging the Jury) - The judge reads

the instructions of law to the jury, defines all issues the jurors must

decide on and informs them of the law that governs their specific trial.

Jurors are not allowed to decide the outcome of trials based on how they

would like the laws to be, but rather on as the laws are. This is the sworn

duty of the jury, taken before every trial.19

6. Deliberation - The jury retires to a deliberation room to consider the trial

and reach a verdict. First, the jury elects a foreperson who ensures

discussions regarding the trial are conducted in a sensible and orderly

17
Ibid
18
Ibid
19
Id at 109

154
 fashion, all issues presented during the trial are fully and fairly discussed,

and that every juror is given a fair chance to participate. If the jurors

have a question about any part of the trial during their deliberation, they

may write it down and have the bailiff deliver it to the judge.20

Most states require that a 12-person jury find the trial in favor unanimously for

the defendant. Some states, however, allow for a trial's decision to be based on a

majority as low as 7. If the jury fails to reach a unanimous (verdict and finds itself at a

standstill (what is known as a hung jury), then the judge can declare a mistrial. If a

mistrial is declared, the trial may be simply dismissed, or the trial may have to start over

again from the jury selection stage.21

When a verdict for the trial has been reached, the jurors that agree with the

verdict sign the form and notify the bailiff. The clerk then reads the verdict aloud, and

the judge dismisses the jurors from the trial.22

The researcher find that the United States of America is the only country which

has enacted a legislation to implement the constitutional guarantee of speedy trial to all

accused persons and the law on this point is the Speedy Trial Act, 1974 as amended on

August 2, 1979. The Act mandates time limits for completing various stages of a federal

criminal prosecution.

The major impact of the Speedy Trial Act is due to its imposition of time limits

with respect to three separate intervals in the period from arrest to trial. The first limit

requires that any information or indictment be filed within 30 days from the date on

which the accused was arrested or served with a summons in connection with the

20
Ibid
21
Ibid
22
Id at 112

155
offense.23The second limit requires that arraignment of the accused be held within 10

days of either the filing date of the information or indictment, or of the date the accused

is ordered held to answer and appears before a judicial officer in the court in which the

charge is pending, whichever date occurs last.24 The third time limit requires that, where

a plea of not guilty is entered, trial must begin within 60 days from the date of

arraignment.25

The Speedy Trial Act explicitly prescribes a set of time limit for carrying out

major events in criminal proceedings. If there is a violation of the provisions of the

Speedy Trial Act the indictment against the defendant must be dismissed.26

The District Court, however, retains the discretion to dismiss the indictment

either with or without prejudice.27 In the case of United States v. Taylor28 the question

was of determining whether a dismissal of an indictment for noncompliance with the

Speedy Trial Act should be with or without prejudice. The Court observed that the

District Court must at least consider the seriousness of the offence, the facts and

circumstances of the cases, which can lead to the dismissal and the impact of a re-

prosecution on the administration of the Speedy Trial Act as well as on the

administration of justice.

Hence, in determining whether to dismiss with or without prejudice, a District

Court shall consider, among others, each of the following factors:

• The seriousness of the offense;

23
The Speedy Trial Act, §§ 3161(b),
24
Id,§ 3161(c)
25
Ibid
26
The Speedy Trial Act ,1974, § 3162 lack of preparation by the government is not considered as
legitimate delay
27
Id, § 3161(b)
28
487 US 326(1988).

156
 • The facts and circumstances of the case which led to the dismissal;

• The impact of a re-prosecution on the administration of justice.

A District Court is not required to dismiss an indictment with prejudice for every

violation of the Speedy Trial Act. The decision whether to dismiss a complaint under

the Speedy Trial Act with or without prejudice is entrusted to the sound discretion of the

District Judge and no preference is accorded to either kind of dismissal. Although not as

harsh a sanction as dismissal with prejudice, dismissal without prejudice is meaningful

because it, inter alia, forces the Government to obtain a new indictment if it decides to

re-prosecute as well as exposes the prosecution to dismissal on the ground of law of

limitation.29

The right to a speedy trial is not only a vital safeguard to prevent undue and

oppressive incarceration but it serves to minimize anxiety and concern that accompany

the accusation. This right helps to limit the possibility of impairing the ability of an

accused person to defend himself.

It is a true that the guarantee of a speedy trial is one of the most basic rights

preserved by the Constitution of USA, the protection afforded by this guarantee is

activated only when a criminal prosecution has begun and extends only to those persons

who have been accused during that prosecution. Invocation of the right need not await

indictment, information or other formal charge but begins with the actual restraints

imposed by arrest if those restraints precede the formal preferring of charges30.

29
Ibid
30
Carl J. Franklin, Constitutional Law for the Criminal Justice Professional50 (CRC Press, United States,
1stedn., 1999).

157
 Moreover, in order to ensure that accused persons are not rushed to trial without

an adequate opportunity to prepare their cases, the Congress amended the Act in 1979 to

provide a minimum time period during which trial must commence. The amended Act

provides that trial may not begin less than 30 days from the date the defendant first

appears in court, unless the defendant agrees in writing to an earlier date.31 In United

States v. Rojas Contreras32, the U.S. Supreme Court held that this 30-day trial

preparation period is not restarted upon the filing of a substantially similar superseding

indictment. If the indictment is dismissed at the defendant's request, the provisions of

the Act apply afresh upon reinstatement of the charge. If the indictment is dismissed at

the request of the government, the 70-days time begins to run again upon the filing of

the second indictment. If trial ends in a mistrial or the court grants a motion for a new

trial, the second trial must begin within 70 days from the date the decision of retrial

becomes final.

Certain pretrial delays are automatically excluded from the Act's time limits,

such as delays caused by pre-trial motions. In Henderson v. United States33, the

Supreme Court held that the Act excludes "all time between the filing of a motion and

the conclusion of the hearing on that motion, whether or not a delay in holding that

hearing is 'reasonably necessary." Other delays excluded from the Act's time limits

include: delays caused by the unavailability of the defendant or an essential witness;

delays attributable to a co-defendant; and delays attributable to the defendant's

involvement in other proceedings, including delay resulting from an interlocutory

appeal.

31
The Speedy Trial(Amendment) Act , 1979 § 961
32
474 US 231 (1985)
33
476 US 321 (330) (1986)

158
 In United States v. MacDonald34, the Court held that the speedy trial clause was

not implicated by the action of the United States when, in May 1970, it proceeded with

a charge of murder against defendant under military law but dismissed the charge in

October of that year, and he was discharged in December. In June of 1972, the

investigation was reopened but the grand jury was not convened until August of 1974,

and MacDonald was not indicted until January of 1975. The period between dismissal

of the first charge and the later indictment had none of the characteristics which called

for application of the speedy trial clause. The period between arrest and indictment must

be considered in evaluating a speedy trial claim.

MacDonald Case was applied in United States v. Loud Hawk35 by holding that

the speedy trial guarantee was inapplicable to the period during which the government

appealed for dismissal of an indictment, since during that time the suspect had not been

subject to bail or otherwise restrained. Further there was no denial of speedy trial since

prosecution's position on appeal was strong, and there was no showing of bad faith or

dilatory purpose. If the interlocutory appeal is taken by the defendant, he must "bear the

heavy burden of showing an unreasonable delay caused by the prosecution or wholly

unjustifiable delay by the appellate court" in order to win dismissal on speedy trial

grounds.

A defendant may not expressly waive of his rights under the Speedy Trial Act.

This was categorically decided in United States v. Saltzman36. However, if the trial

judge determines that "ends of justice" served by a continuance of the trial outweigh the

interest of the public and the defendant in a speedy trial, delay occasioned by such

34
456 US 1 (1982).
35
474 US 302(1986).
36
984 F.2d 1087.

159
continuance is excluded from the Act's time limits. The judge must set forth, orally or in

writing, his reasons for granting the continuance. The government should never rely on

a defendant's unilateral waiver of his rights under the Act. It is the duty of the

prosecution to bring a defendant to trial, and the failure of the defendant to demand the

right is not to be construed as a waiver of the right; yet, the defendant's acquiescence in

delay when it works to his advantage should be considered against his later assertion

that he was denied the guarantee, and the defendant's responsibility for the delay would

be conclusive.

Finally, a court should look to the possible prejudices and disadvantages

suffered by a defendant during a delay. While the accused/ defendant cannot unilaterally

waive of his rights under the Speedy Trial Act, he can forfeit his right to obtain a

dismissal of the case for a claimed violation of the Act by failing to move for dismissal

prior to trial. The law provides that failure of the defendant to move for dismissal prior

to trial shall constitute a waiver of the right to dismissal under this section37.

There are several cases38decided by the Supreme Court during the second half of

the twentieth century wherein laid down seven general propositions concerning the

constitutional right to a speedy trial:

1. The Court has repeatedly identified three major and distinct interests

protected by the Sixth Amendment in speedy trial clause namely an

interest in avoiding prolonged pretrial detention, an interest in

minimizing the anxiety and loss of reputation accompanying formal

37
United States v. Saltzman, 984 F.2d 1087.
38
United States v. Marion, (1971) 307 U.S 404, United states v. Watson (1976) 431 U.S. 411, 431

160
 public accusation, and an interest in assuring the ultimate fairness of a

delayed trial.

2. The Court has made clear that the major evils of pre-trial restraints on

liberty and loss of reputation occasioned by accusation exist quite apart

from the third major evil of possible prejudice to an accused's defence at

trial.

3. The Court has held that the clause simply does not apply to the time

between the commission of the crime and the time that the defendant is

in some way "accused" (usually by arrest or indictment) by the

government. In other words, the clause applies only to the formal

"accusation period"-the period between governmental accusation and

trial.

4. Relatedly, the Court has held that the clause does not apply to any period

during which the government drops its initial charges while retaining the

right to reindict later. In such a case the defendant is not "accused"

during this time, and so the speedy trial clock stops ticking against the

government during this period.

5. The Court has held that if pre-accusation delay compromises the

defendant's ability to defend himself or herself, the main safeguard

against injustice comes from the applicable statute of limitations. In

cases of substantial prejudice to a fair trial caused by a prosecutor's

purely strategic delay in bringing the initial accusation, defendants may

also seek relief by appealing to general due process principles.

161
 6. The Court has said that the judicial remedy for speedy trial violations of

dismissing the case with prejudice that is, dismissing with no possibility

of refilling charges later is unsatisfactorily severe because it means that a

defendant who may be guilty of a serious crime will go free, without

ever having been tried. Such a remedy, the Court has noted, is more

severe than the Fourth Amendment exclusionary rule, which limits the

introduction of certain evidence, but typically does not altogether bar a

trial.

7. Nonetheless, the Court has repeatedly held that dismissal with prejudice

is the only possible remedy for speedy trial clause violations.

The American Bar Association in Criminal Justice Section has laid down

standard in which the purposes of the standards of Speedy Trial and Timely Resolution

of Criminal cases are provided.39 These are-

a. The Standards on Speedy Trial and Timely Resolution of Criminal Cases have

three main purposes:

(1) to effectuate the right of accused to a speedy trial,

(2) to further the interests of the public, including victims and witnesses, in the

fair, accurate, and timely resolution of criminal cases; and

(3) to ensure the effective utilization of resources.

b. These standards should be read in conjunction with other American Bar

Association (ABA) Standards of Criminal Justice, and with recognition that

fairness and accuracy are essential components of the criminal justice process.

The standards are not intended to emphasize speedy disposition of cases to the

39
American Bar Association, Criminal Justice Standards Speedy Trial and Timely Resolution of Criminal
Cases , Standard 12.1.1.

162
 detriment of the interests of the parties and the public, including victims and

witnesses, in the fair, accurate and timely resolution of cases. In implementing

these standards in individual cases and in developing policies for overall

management of caseloads, jurisdictions should seek to ensure that both

prosecutors and defense counsel have adequate opportunity to investigate their

cases, consult with witnesses, review documents, make appropriate motions, and

conduct other essential aspects of case preparation.

4.1.4. Defendants Right to Speedy Trial

Defendants in criminal cases, under the Sixth Amendment, have the right to a

speedy trial.40 In the case of Barker v. Wingo41, the U.S. Supreme Court laid down a

four-part ad hoc balancing test for determining whether the defendant's speedy trial

right has been violated:

1. Length of Delay: A delay of a year or more from the date on which the speedy

trial right "attaches" (the date of arrest or indictment, whichever occurs first)

was termed "presumptively prejudicial," but the Court has never explicitly ruled

that any absolute time limit applies.

2. Reason for the delay: The prosecution may not excessively delay the trial for

its own advantage, but a trial may be delayed securing the presence of an absent

witness or other practical considerations.

3. Time and way the defendant has asserted his right: If a defendant acquiesces

to the delay when it works to his own benefit, he cannot later claim that he has

been unduly delayed.

40
United States v. Wilson, 72 M.J 347
41
(1972) 514 U.S.407

163
 4. Degree of Prejudice: Degree of prejudice to the defendant which the delay has

caused.

If the reviewing court finds that a defendant's right to a speedy trial was violated,

then the indictment must be dismissed and/or the conviction overturned. The Supreme

Court has held that, since the delayed trial itself is the state action which violates the

defendant's rights, no other remedy would be appropriate. Thus, a reversal or dismissal

of a criminal case on speedy trial grounds means that no further prosecution for the

alleged offence can take place.42

4.1.5. Effects of exceeding the speedy trial time limit period

There should be a proper mechanism to check the cause of delay and the victim

or the defendant can approach the court and allege violation of Fundamental right.

Thereafter Court would see the other factors to decide on whether the right has been

violated or not. If court concludes that accused right has been violated it should

ordinarily dismiss the charges with prejudice,43 provided that after affording the parties

an opportunity to be heard, the court may in the interests of justice extend the time limit.

4.1.6. Right to Public Trial

The Court in United States of America has categorically ruled that the right to a

public trial as guaranteed by the Sixth Amendment is not absolute. In cases where

excess publicity would serve to undermine the defendant's right to due process,

limitations can be put on public access to the proceedings. Trials are often closed at the

behest of the government with claims that there is an overriding interest based on

42
United States v. Becker ,53 M.J. 229
43
Supra note 39, standard 12.2.7

164
findings that closure is essential to preserve higher values and is narrowly tailored to

serve that interest.44

4.1.7. Right to a Jury

In addition to guaranteeing the right to an attorney, the Sixth Amendment to

U.S. Constitution guarantees a criminal defendant a speedy trial by an impartial jury.45

This means that a criminal defendant must be brought to trial for his or her alleged

crimes within a reasonable short time after arrest, and that before being convicted of

most crimes, the defendant has a constitutional right to trial by a jury, which must find

the defendant guilty beyond a reasonable doubt. The right to a jury has always depended

on the nature of the offence with which the defendant is charged. Petty offences, that is,

those punishable by imprisonment for not more than six months are not covered by the

jury requirement46. Even where multiple petty offences are concerned, where the total

time of imprisonment possibly exceeding six months, the right to a jury trial does not

exist47.

Another factor in determining the impartiality of the jury is the nature of the

panel from which the jurors are selected. Panel must represent a fair cross-section of the

community; the defendant may establish that the requirement was violated by showing

that the allegedly excluded group is a distinctive one in the community or that the

representation of such a group in the panel is unreasonable and unfair in regard to the

number of persons belonging to such a group and that the underrepresentation is caused

by a systematic exclusion in the selection process48.

44
Sheppard v. Maxwell, 384 U.S. 333 (1966).
45
Supra note,509
46
District of Columbia v. Clawans, 300 U.S. 617 (1937) and Baldwin v. New York, 399 U.S. 66 (1970).
47
Lewis v. United States, 518 U.S. 322 (1996)
48
Id

165
 The Sixth Amendment guarantees a criminal defendant the right to be tried

before an "impartial jury," representative of a cross section of the community, who will

consider the evidence against the defendant and decide whether to find him or her guilty

of the Crime (s) charged. The latest position is that in almost all states, six jurors must

agree to find a defendant guilty or not guilty.In such states, if the jury fails to reach a

unanimous verdict and finds itself at a standstill (a hung jury), the judge may declare a

"mistrial," after which the case may be dismissed, or the trial may start all over again.49

Thus, in Taylor v. Loussianna50, the Supreme Court invalidated a state law that

exempted women who had not made a declaration of willingness to serve in the jury,

while not doing the same for men.

The Constitution originally required that defendants be tried by juries selected

from the State in which the crime was committed. The Sixth Amendment extends the

rule by requiring trials to occur in districts ascertained by statute. As the Supreme Court

found in Beavers v. Henkel51, the place where the offence is charged to have occurred

determines the trial's location. Where multiple districts are alleged to have been

locations of the crime, any of them may be chosen for the trial. In cases of offences not

committed in any State (for example, offences committed at sea), the place of trial may

be determined by Congress.

4.1.8. Right to Notice of Accusation

A defendant has, under the Sixth Amendment to the United States Constitution, the

right to be informed of the nature and cause of the accusation against him. Therefore, an

indictment must allege all the ingredients of the crime to such a degree of precision that

it would allow the accused to assert double jeopardy if the same charges are brought up
49
Supra note 16 at 104
50
419 US 522 (1975).
51
194 US 73 (1904)

166
in subsequent prosecution. The Supreme Court held in United States v. Carll52 that "in

an indictment it is not sufficient to set forth the offence in the words of the statute,

unless those words of themselves fully, directly and expressly, without any uncertainty

or ambiguity, set forth all the elements necessary to constitute the offence intended to be

punished." Vague wording, even if taken directly from a statute, does not suffice.

However, the government is not required to hand over written copies of the indictment

free of charge.

4.1.9. Right to Confrontation

The defence, under the Sixth Amendment, must have an opportunity to "confront"

and cross-examine the witnesses.53 The confrontation clause relates to the Common

Law rule preventing the admission of hearsay testimony by one witness as to the

statements and observations of a person for the purpose of proving that the statement or

observation was accurate. In Cawford v. Washington54, the Supreme Court increased

the scope of the confrontation clause in the trials. Justice Scalia's observations made any

"testimonial" out-of-court statements inadmissible if the accused did not have the

opportunity to cross-examine that accuser. "Testimonial" becomes a term of art here,

meaning any statements that an objectively reasonable person in the declarant's situation

would have deemed likely to be used in Court. The most common application of this

would come after a declarant made a statement to a police officer, and then that officer

testifies about that statement at the trial.

The defendant must also be permitted to call witnesses in his favor. If such

witnesses refuse to attend, they may be compelled to do so by the Court at the request of

the defendant. In some cases, however, the Court may refuse to permit a defence
52
105 US 611 (1881).
53
Supra note 509
54
(2004) 36 U.S.541

167
witness to testify. If, for instance, a defence lawyer fails to notify the prosecution of the

identity of its witnesses in order to gain a tactical advantage, the witnesses whose

identities were undisclosed may be precluded from testifying.

The right to confront and cross-examine witnesses also applies to physical evidence;

the prosecution must present physical evidence to the jury, providing the defence ample

opportunity to cross-examine its validity and meaning. Prosecution generally may not

refer to evidence without first presenting it.

4.1.10. Right to Counsel

The Sixth Amendment guarantees a defendant the Right to assistance of counsel

during trial. The defendant has the right not only to be heard through such attorneys as

he pleases but furthermore, the defendant may represent himself.55 The Court may,

however, deny the defendant such a right when it is deemed that the defendant is

incompetent to waive the right to counsel. If a defendant cannot afford an attorney, the

government is required to provide the defendant with an attorney. Such defendants

receive legal representation from the Public Defender's Office. The Federal Rules of

Criminal Procedure provide that an accused shall have access to counsel at every stage

of the proceedings, beginning with the defendant's initial appearance. If a defendant

demands the presence of counsel during police interrogation, police must stop the

interrogation until the defendant's counsel is present. However, if a defendant

voluntarily and intelligently chooses to waive assistance of counsel and self-represent,

the defendant may do so. This is called "pros se" representation.

The legal counseling received must also constitute "effective counseling."

Ineffective assistance of counsel may serve as grounds for a new trial. Establishing

55
Supra note ,509

168
ineffective assistance of counsel requires establishing that the prevailing professional

norms at the time of trial render the actual assistance received inadequate and that the

ineffective assistance caused a fundamentally unfair result. Originally, the clause was

not interpreted as requiring the state to appoint counsel where the defendant could not

afford to do so. The Supreme Court began to expand the interpretation of the clause in

Powel v. Alabama56 in which it held, "in a capital case, where the defendant is unable to

employ counsel, and is incapable adequately of making his own defence because of

ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the Court, whether

requested or not, to assign counsel for him." In Jhonson v. Zerbst57, the Supreme Court

ruled that in all federal cases, counsel would have to be appointed for defendants who

were too poor to hire their own. When deciding Betts v. Baddy58, the Court declined to

extend this requirement to the State Courts under the Fourteenth Amendment unless the

defendant demonstrated "special circumstances" requiring the assistance of counsel.

In 1960, the Court extended the rule that applied in Federal Courts to State

Courts. It held in Hamilton v. Alabama59 that counsel had to be provided at no expense

to defendants in capital cases when they so requested, even if there was no "ignorance,

feeble mindedness, illiteracy, or the like as stated in Brewer v. Williams60 the rights

granted by Sixth and Fourteenth Amendments "mean at least that a person is entitled to

the help of a lawyer at or after the time that judicial proceedings have been initiated

against him, whether by formal charge, preliminary hearing, indictment, information, or

arraignment." Once adversaries proceeding has begun against a defendant, he has a right

to legal representation when the government interrogates him.

56
287 U.S. 45(1932).
57
Ibid
58
316 US 455 (1942).
59
422 U.S. 806 (1975)
60
430 US 387 (1977)

169
4.1.11. Right to Self-Representation

In Faretta v. California61 the Supreme Court has expounded the right to

represent yourself by holding that the power to choose or waive counsel lies with the

accused, and the State cannot intrude, though it later held in Godinez v. Moran62, that

the State could deny the waiver if it believed the accused less than fully competent to

adequately proceed without counsel. The Supreme Court also held in Bounds v. Smith63

that the constitutional right of "meaningful access to the courts" can be satisfied by

counsel or access to legal materials.

4.1.12. Innocent Until Proven Guilty

The basis for these rights is the supposition that all individuals are innocent until

proven guilty. The following rights stem from this supposition and are guaranteed to all

those accused of a crime: -

• For a defendant to be found guilty, the prosecution must prove beyond a

reasonable doubt that the accused did in fact commit the crimes that he/she has

been charged with.

• The accused are protected from self-incrimination. This protection pre-empts

torture and other forms of coercion by rendering the confessions or

incriminating testimony inadmissible in Court.

• The accused has a right to remain silent until he/she has had the opportunity to

confer with legal counsel.

• The accused has the right to adequate legal representation. If he/she cannot

afford to hire an attorney, the Court must provide legal counsel at no charge.

61
368 US 52 (1961)
62
509 U.S. 389(1993)
63
430 U.S. 817(1977)

170
 • The accused has the right to know what the charges are and to confront witness

testifying against him/her. The defendant also has the right to gather his/her own

evidence and witnesses.

• Those charged with serious crimes must be indicted by a grand jury.

• An individual cannot be tried for the same crime twice.

• The defendant has the right to a public and speedy trial by jury if desired.

• The accused has the right to be free of unreasonable search and seizure. There

are many circumstances where law enforcement must obtain a search warrant

before searching private property for people or evidence. To ensure that this

right is upheld, a judge must not allow any evidence gathered unlawfully to be

admitted in Court.

4.1.13. Sentencing

Sentencing usually occurs immediately for infractions and misdemeanours. For such

minor infractions, penalties may include probation; fines; short-term incarceration;

long-term incarceration; suspended sentence, which only takes effect if the convict fails

to meet certain conditions; payment of restitution to the victim; community service; or

drug and alcohol rehabilitation."64

More serious crimes result in the trier of fact hearing evidence and arguments

from both the prosecution and the defense regarding the appropriate sentence. Some

jurisdictions allow the judge, alone, to determine the sentence; others will have a

separate sentencing phase trial, complete with a new jury, to determine the sentence for

certain crimes.'65

64
Cornell University Law School, Legal Information Institute, Criminal Procedure available at: http://
www.
law.comell.edu/wex/criminal_procedure? [last visited on July 07, 2022].
65
Ibid

171
During a sentencing trial, the prosecution presents evidence of aggravating factors, and

the defense presents evidence of mitigating factors. The U.S. Supreme Court has

interpreted the U.S. Constitution to protect the right to a jury sentencing trial for all

defendants facing the death penalty66.

Before the judge announces the sentence, a defendant is entitled to allocution.

Allocution is the right of the defendant to directly address the judge without the help of

counsel. During this direct address, the defendant may offer a personal explanation of

any unknown facts, may ask for mercy, or may offer an apology for the criminal

behavior. This opportunity for defendants to show remorse or to offer the motivations

behind their

In Barker v. Wingo67, 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

Conn 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 the instant 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.

In Klopfer v. North Carolina68, US Supreme Court held that by indefinitely

postponing prosecution on the indictment over petitioner's objection and without stated

justification, the State denied petitioner the right to a speedy trial guaranteed to him by

the Sixth and Fourteenth Amendments of the Federal Constitution.

66
Ibid
67
407 U.S. 514 (1972)
68
386 U.S. 213 (1967)

172
 In Smith v. Hooey69, a defendant in Federal prison charged with a Texas State

crime was denied the right to a speedy trial when Texas still had not prosecuted him for

the crime after seven years. The Court held that the case must be thrown out.

In Barker v. Wingo70, the Court held that violation of the speedy trial clause

must be decided on a case-by-case basis, taking into account four factors: (i) length of

delay (lower court, generally 6-8 months); (ii) reason for delay; (iii) whether and when

the defendant asserted his right to a speedy trial; (iv) degree of harm to the defendant

caused by delay.

In Strunk v. United States71, the Court held that a defendant in custody on

different charges maintains the Sixth Amendment right to a speedy trial on new charges.

The Court dismissed the case after a 279 day wait.

In Estes v. Texas72, attracted national media attention, the Supreme Court ruled

media presence in the courtroom could negatively affect the defendant's ability to

receive a fair trial, and allowed the courts to put reasonable restrictions on media in the

courtroom.

In Waller v. Georgia73, the Court held that the public trial clause may be waived,

but only in circumstances where an open hearing would be prejudicial. Four criteria

apply in making a decision:

(i) party seeking to close the hearing must advance an overriding interest

that is likely to be prejudiced;

(ii) the closure must be no broader than necessary to protect that interest;

69
393 US 374 (1969)
70
407 US 514 (1972)
71
412 US 434 (1973)
72
381 US 532 (1965)
73
467 US 39 (1984)

173
 (iii) the trial Court must consider reasonable alternatives to closing the

hearing;

(iv) the Court must make findings adequate to support the closure.

In Press-Enterprise v. Superior Court74, the Court held that trials may be closed

if a public trial damages the defendant's ability to receive a fair hearing, but transcripts

must be made available after the trial is completed.

In United States v. Cruikshank75, the Court categorically held that the details of

the indictment must specify the manner in which the defendant violated the law or

another person's constitutional rights so he (or she) could devise an appropriate defense

against the allegations and also held that the Bill of Rights did not apply to the States.

4.1.14. Plea Bargaining in U.S.A.

The Sixth Amendment to the Constitution of United States has granted

the right to fair and speedy trail. The concept of plea bargaining has not been mentioned

in the Sixth Amendment. The practice of plea bargaining has been prevailing in the

justice administration system of the United States. The classic case of adoption plea

bargaining is the famous case of assassination of Martin Luther King Junior.76 In 1969

accused Jams Earl Ray pleaded guilty to the murder of Martin Luther King Junior to

avoid death penalty. He got 99 years imprisonment.77Plea bargaining has over the years

emerged as a prominent feature of the American Criminal Justice system where over

97% federal conviction and 94% state conviction are secured in criminal cases by plea

74
478 US 1 (1986)
75
92 US 542 (1876)
76
William Bradford huie, He Slew the Dreamer: My Search for the truth about James Earl Ray and the
Murder of Marin Luther King 114 (University of Mississippi,3285, Ridgewood Rd, Revised edn. 2018)
77
Ray v. State 846 N.E.2d 1064

174
bargaining rather than by a jury trial.78 Thus, less than ten percent of criminal cases go

to trial. The United States experiment shows that plea bargaining helps the disposal of

the accumulated cases and expedites delivery of justice.79Most of the criminal case is

now conducted by Plea bargaining and today it is often said that the American Criminal

Justice would collapse if plea bargaining were removed from it.

The success of plea bargaining as a procedure leading to high convictions has

been proven in the United States, where the apex court of USA in several cases has

upheld its Constitutionality and significance80.The United States Supreme Court

recognized the practice of plea bargaining but it should be properly conducted and

controlled. Voluntariness and judicial scrutiny are two important aspects of plea

bargaining. The courts have been given a very vital role to play and it has to see that the

entire thing is voluntary, and the accused is given the protection of secrecy and all the

parties may participate freely and no one is subjected to any coercion or duress of

another.

4.1.15. Speedy Trial in United Kingdom

The right to speedy trial first found formal expression in Magna Carta in the

statement81-"Nullivendemus, nullinegabimusautdifferemusretumveljusticiam." "To no

one will we sell to no one will we delay rights or justice”. The right to speedy trial is

78
Bureau of Justice statistics,2015
79
Justice A.K. Sikri, “Reforming Criminal Justice System: Can Plea Bargaining be the Answer?” 8 Naya
Deep 43-44 (2007).
80
Brady v. United States (1970)397 US 724, Santobello v. New York, (1971)404 US 257
81
No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free
customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against
him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of
delay right or justice( Magna Carta Charter 29)

175
implicit in the right to ‘fair trial’ and in ‘due process of law’. The right to speedy trail

finds expression in both English Common law and the statute law.

The English criminal Justice system recognizes accused's right as far back as

1679 in the Habeas Corpus Act82. Section 6 of the Habeas Corpus Act, provided for

release on bail or discharge of persons detained on accusation of high treason or felony

in the courts of Assizes or Sessions, if indictment could not take place in the second

term after committal. Assizes Relief Act 1889, Section 3 provided for released on bail

of persons committed for trial to courts of sessions if they are not tried in the next

sessions83 The Criminal Justice Act, 1925, Section 14 (5) which was replaced by

Section 10 (3) of Magistrates Courts Act 1952 also provided for release on bail of

persons who could not be tried at the next Quarter sessions. These provisions only limit

the pre-conviction custody of the accused.

4.1.16. Statutory Regulations

Some steps to regulate and limit the actual duration of the prosecution process

was made in the Crown Court Rules and Indictment Rules, which are statutory

regulations, issued in 1982 and 1983. Under these rules, the bill of indictment is to be

prepared within 28 days of Committal84 and the trial is to commence within 8 weeks of

committal85. Both these limits may be extended by the court.

4.1.17. The Prosecution of Offences Act, 1985

The Prosecution of Offences Act ,1985 was a further step in this direction.

Section 22 of the Act enables the Secretary of State to prescribe custodial and overall

82
Md. Junaid, Speedy Trial In Criminal Justice System: An Appraisal 78 (Aligarh Muslim University,
Aligarh,2009)
83
Ibid
84
Halsbury's Laws of England, 4th ed., reissue VS. 11(2) para 916.
85
Idpara 979.

176
time limits, in respect of preliminary stages of a trial. “Preliminary stage” means, in

Crown Court, proceedings prior to arraignment, and in summary trials, proceedings

prior to taking of evidence for the prosecution86. The actual time limit has to be

prescribed by the Secretary of State through delegated legislation87.

The consequence of non-adherence with custodial time limits is bail88.

Consequence of non-adherence with overall time limits is acquittal89. However, till date

only the former has been enforced.

According to the provisions now in force, the custodial limit vary between 58 to

112 days, depending on whether the offence is triable summarily or indictable and other

factors, like place of trial. The courts have the power to extend time limits on a case to

case basis, depending on factors like “good cause,” where prosecution has “acted with

all due expedition”90 etc., and where the accused escapes or jumps bail91, such orders

are appealable, except when the accused is convicted92.

The principle of Speedy trial has been authoritatively extended by the Privy

Council to the Commonwealth countries as well in 1985 in Bell v. Director of Public

Prosecutions of Jamaica93. That was a case from Jamaica and the relevant provision of

law was in the following terms:

“Whenever any person is charged with a criminal offence he shall, unless the charge is

withdrawn, be afforded a fair hearing within a reasonable time by an independent and

impartial court established by law....... ”

86
Prosecution of Offences Act, 1985, s. 22 (11)
87
Ids. 22(1) and (2)
88
Prosecution of offences (Custody time limit) Regulations, 1987
89
Supra note 85 s. 22(4)
90
Prosecution of Offences Act, 1985, s. 22(3)
91
Id,,s.22(5) and (6)
92
Id, s 22(7), (8), (9) and (10)
93
(1985) 2 All ER 585

177
 However, the Privy Council observed as under on general principles as well:

“Their Lordships do not in any event accept the submission that prior to the

Constitution the law of Jamaica, applying the common law of England, was powerless

to provide a remedy against unreasonable delay, nor do they accept the alternative

submission that a remedy could only be granted if the accused proved some specific

prejudice, such as the supervening of the death of a witness. Their Lordships consider

that, in a proper case without positive proof of prejudice, the courts of Jamaica would

and could have insisted on a date of trial and then, if necessary dismissing the charges

for the want of prosecution. Again, in a proper case, the court could treat the renewal of

charges after the lapse of a reasonable time as an abuse of the process of the

court...........”

4.1.18. Speedy Trial in Australia

In Australia, there is no express provision of speedy trial governing the time,

which may be taken for completion of criminal proceedings. The right to speedy trial is

the creation of the courts. This right is a spin-off from the “abuse of court’s

proceedings” doctrine, as enunciated by the English House of Lords in Connelly v.

DPP94 and DPP v. Humphrys95 and developed by the High Court of Australia in

Barton v. The Queen.96 None of these cases deal with delay. All that was laid down in

these cases is that the courts have the power to dismiss prosecutions for abuse of their

process.

94
(1964) AC 1254
95
(1977) AC 1
96
147 CLR 75 (1990)

178
 Therefore, relying on these decisions, the lower courts in the country developed

a proposition that mere efflux of time will amount to an abuse of their process97.

This was reversed by the High Court of Australia in Jago v. District Court of

New South Wales98. In Jago, the accused, an ex-company director was indicted of an

offence related with misuse of company funds, committed between April 1976 and June

1979. The High Court found that there is no common law right to a speedy trial in

Australia. However, a proceeding may be permanently stayed if abuse of proceedings is

proved as a matter of fact. Whether delay amounts to abuse is a question to be decided

on a case-to-case basis99.

The court expressly laid down that permanent stay orders granting immunity

from trial are undesirable and ought to be the last resort. It was realistically accepted by

the court that delay, especially in complex cases, is inevitable and in facts, found that

Jago did not involve unreasonable delay.

97
Md. Junaid, Speedy Trial In Criminal Justice System: An Appraisal (2009) (Aligarh Muslim
University).
98
63 ALJR 340 (1989)
99
Jago v. District Court of New South Wales, 63 ALJR 340 (1989)

179
 Different aspect of criminal Justice system in U.S.A., U.K., Australia, and India

Aspects of U.S.A. U.K. Australia India

Justice
Administration

Reducing (in the Reducing (In the There is 4% Pendency increasing

year 3023 till year 2022 in reduction of
March ,2023 Magistrate Court pending cases (In the year 2022 till
total Case filed total case filed was December 2022 total
was 374,943 and 1,231,661 and case original cases filed
case terminated terminated 30,594,67 and cases
433,442100 1,246,845)101 disposed off
Pending status 11,061,763)102
of cases

Sixth Charter 19 of the The Australian Includes within the

Amendment to Magna Carta.104 Constitution ambit of article 21 of
the Constitution does not the Constitution by
103
expressly the judiciary.
Constitutional
provide the
Provision
right to speedy
trial.

Procedure Adversarial Adversarial Adversarial Adversarial

follows procedure procedure procedure procedure

Statutory The Speedy The Habeas The Federal Various provisions

provision Trial Act ,1974 Corpus Act, The Court of of the Code of
Prosecution of Australia Act Criminal Procedure,
Offences Act ,1985 1973

Judge – 107 per million 51 per million.106 107 per 21 per million108
Population ratio people105 million.107

100
United states district Courts , National judicial caseload profile available at
https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0331.2023.pdf ( last vested
on 6-7-2023)
101
Available at https://www.statista.com/topics/6150/criminal-justice-system-in-the-uk/#topicOverview(
last visited on 6-7-2023
102
National Judicial Data Grid available at https://njdg.ecourts.gov.in/njdgnew/index.php( last visited on
6-7-2023)
103
Supra note 7
104
Supra note 68
105
Anand Sagar, “Raising Court Case and deciding “Judge – Population Ratio” in India “ available at
http://www.iraj.in/journal/journal_file/journal_pdf/14-267-1468562832137-139.pdf (last visited on 5-6-
2023)
106
Ibid

180
From an analysis of the above positions prevailing in US, UK and Australia, three

models of the right to speedy trial emerge. First is the per se doctrine, which holds that

mere efflux of time would amount to violation of the right without the accused having

to prove anything further. This doctrine is applied by the Speedy Trial Act in the United

States to the first two stages of the proceedings, and by the Australian courts before

Jago v. District Court of New South Wales109case.

The Second is the approach whereby each case is approached on its own facts.

This is the view taken by the U.S. Supreme Court in Barker110 case. Under this

approach, there is a burden cast upon the accused to prove that he has been prejudiced

by the lapse of time.

The third is a sort of hybrid of the above two approaches, exemplified by the

U.S. Speedy Trial Act at the third stage of proceedings and English Prosecution of

Offences Act. Lapse of specified period raises a rebuttable presumption as to the

violation of the right. The burden of defeating the presumption lies on the prosecution.

107
Ibid
108
The Economic Time available at https://economictimes.indiatimes.com/topic/judge-population-ratio(
Last visited on 6-7-2023)
109
Supra note 99
110
Supra note 67

181