The Right to a Speedy Trial

Speedy Trial Rights

The Right to a Speedy Trial

A speedy trial is guaranteed to anyone charged with a crime in Illinois or in a federal court. The right to speedy trial is guaranteed by the Sixth Amendment to the United States Constitution, which states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The Sixth Amendment  guarantees a trial within a set period of time and it prevents the prosecution from unnecessarily delaying your trial. Aside from the protections guaranteed by the United States Constitution, Illinois also provides a corresponding right in the Illinois Speedy Trial Act codified at 725 ILCS 5/103-5.

Barker v. Wingo– Constitutional Right to a Speedy Trial

In 1972, the United States Supreme Court issued its ruling in Barker v. Wingo, a case that dealt with the 6th Amendment. Barker involved a habeas corpus petition that sought review of Barker’s murder conviction. Barker was convicted in a state court in Kentucky in 1963 for a double murder that had occurred in 1958. The local police arrested Barker and his co-defendant, Manning, shortly after the murders. The prosecution believing that the case against Manning was stronger than the case against Barker chose to prosecute Manning first with the hope that after being convicted Manning would testify against Barker in exchange for a more lenient sentence. In October of 1958, the prosecution sought the first of 16 continuances in Barker’s case. Barker’s criminal defense attorney did not object to the vast majority of the prosecution’s continuances including the first 11 continuances but did object to continuances numbers 12, 15, and 16. Manning was convicted for his part in the double murder in December of 1962 in a trial where Manning exercised his 5th Amendment right to remain silent and the constitutional prohibition of self-incriination. Barker was convicted in October of 1963.

Barker challenged his conviction on 6th Amendment grounds to the the Kentucky appellate courts and to the Kentucky Supreme Court. After both reviewing courts in Kentucky affirmed his sentence, Barker filed his post-conviction petition to the federal district court in Kentucky, which affirmed his sentence as did the 6th Circuit Court of Appeals. The United States Supreme Court granted Barker’s writ of certiorari in 1972.

Although the Supreme Court held that the 5-year period between defendant’s arrest and conviction was “extraordinary” it still upheld Barker’s conviction in a unanimous vote despite the Court finding that only 7-months of the 5-years was a “justifiable” delay. In so doing, the Supreme Court created the standard to determine when a person’s speedy trial rights have been violated. The standard created by the Supreme Court was not based upon the passage of a certain number of days as the American Bar Association recommended. Instead, the Supreme Court created a balancing test to determine on a case-by-case basis whether a defendant’s constitutional right to a speedy trial had been violated. The Court created the following factors for lower courts to determine whether a defendant was prejudiced by the prosecution’s delay in bringing the defendant’s case to trial:

  1. The length of the delay
  2. The reason for the delay
  3. Whether the defendant ever asserted his right before trial
  4. The prejudice suffered by the defendant because of the delay

Illinois Statutory Right to a Speedy Trial

Illinois grants defendants not only the rights guaranteed by the 6th Amendment to the United States Constitution but it also has created a statutory right to a prompt and quick trial. In Baker v. Wingo, the American Bar Association recommended that the United States Supreme Court should create a constitutional rule that guaranteed a trial within a certain time period. The Supreme Court rejected this approach holding that it could not determine “how long is too long” of a delay. Despite the United States Supreme Court rejecting this approach, the Illinois General Assembly adopted such an approach for state courts located in Illinois. In Illinois, “how long is too long” depends upon whether the defendant is in pre-trial custody or whether the defendant is released on bond.

Defendants Released on Bond

Illinois treats defendants that are in pre-trial custody differently then it does defendants who are released on bond. Among the major reasons for the difference is because defendants that are on bond are less prejudiced by the delay in the trial then are defendants that are in custody. Defendants that are out of custody after posting the required bail bond, the statute requires the State to bring the defendant to trial within 160 days after the defendant formally demands a speedy trial.

Under Illinois criminal law, a defendant on bond must demand trial with a written a demand for trial. Defendants that do not take the requisite steps waive their rights to object to the State’s delay in bringing the case to trial. What that means is that to enforce your rights under the Speedy Trial Act you must take certain steps otherwise you will not enjoy your right to a speedy trial. Illinois requires a defendant out on bond to file a written demand for trial. In the written demand, the defendant must state the demand for trial is being made under the Illinois Speedy Trial Act. The demand must also list any prior demands under the Act. Time spent in pre-trial custody counts against the speedy trial period. However, after being released from custody the defendant must file a written demand upon being released from custody.

Defendants in Custody

The speedy trial period for defendants that are detained in pre-trial confinement are treated differently in Illinois. Defendants that are unable to post the bail bond amount and remain in custody while awaiting trial, have a shorter speedy trial period than defendants on bond. In custody defendants have a 120 day speedy trial period, which means the State must bring the defendant to trial within 120 days of the defendant being taken into custody by the State. The 120 day period begins to run automatically unless the delay in the trial was attributable to the defendant. Additionally, unlike a defendant released on bond, a defendant in custody does not need to file a written demand for trial to start the 120-day speedy trial period. However, to ensure that your right to a speedy trial is enforced you cannot agree to delaying the trial or consent to the State’s request for a continuance.

An important factor in computing the 120-day speedy trial period is the reason for the defendants incarceration. The speedy trial period does not apply to cases where the defendant is in custody as a result of a different offense. For example, if a defendant is facing two separate but simultaneous criminal charges and the defendant has an I-bond one charge and a no bail bond hold on another charge which is keeping the defendant in custody. The defendant cannot argue that the 120 day speedy trial period applies to the case that has an I-bond because that case in keeping him in custody. The 120-day period also does not apply to defendants who are in custody for a violation of parole or mandatory supervised release. The 120-day speedy trial period must be one continuous period of incarceration. In computing the 120-day term, separate periods of incarceration may not be combined. Also, if a defendant is taken into custody a second (or subsequent) time for the same offense, the term will begin again at day zero.

What is a Delay Occasioned by the Defendant?

The most important factor in the Illinois Speedy Trial Act is whether the delay was occasioned by the defendant. Regardless if the defendant is in custody or on pre-trial bond, the speedy trial period is tolled when the delay in the trial is caused by the defendant or if the defendant agrees to the continuance. Anytime a defendant files a pre-trial motion, even a motion for discovery, is a delay occasioned by the defendant because the prosecution is required to answer the motion prior to trial. The entire time that it takes to resolve the pre-trial motion is attributed to the defendant even in cases where the delay in proceeding to a pre-trial hearing is caused by the prosecution.

In most criminal defense cases, the defendant and the prosecution are in pre-trial negotiations. Those pre-trial discussions between the prosecution and the criminal defense lawyer sometimes involves plea negotiations, witness availability, trial stipulations, and a host of other items. Those discussions typically take several months to complete. During that time will likely involve several court appearances where the defendant, the criminal defense attorney, and the prosecution advise the trial court on the progress of the case. These continuances are usually agreed to by the defendant. These agreed continuances that are known as by agreement continuances also toll the speedy trial period.

A defendant can also waive his right to a speedy trial by his or her actions. All defendants that are on bond are required by the conditions of their bond to appear on time to their scheduled court dates. A failure to comply with this requirement will result in the defendant waiving his or her previous speedy trial demands. What that means is a defendant on bond who misses court will have the speedy trial period reset to Day 0 if the defendant ever is late or misses a court date. This result will occur regardless if the court issues a warrant for the defendants arrest.

What Can You Do to Enforce Your Right to a Speedy Trial

Both the United States Constitution and the Illinois Speedy Trial Act act as a shield to protect defendants against the prosecution unnecessarily delaying your trial and prejudicing the defendants right to due process that includes a right to a fair and impartial trial. The actual protections guaranteed are different whether the right being violated is the defendants right to a speedy trial under the United States Constitution or under Illinois law. Although the rights are different, the protections they provide are applied contemporaneously and separately, which to use depends upon the individual circumstances of your case.

That is why the most important thing you can do is to hire an criminal defense lawyer that not only understands both protections but a criminal defense attorney that can and is willing to communicate with you about your case. Time and time again as both a prosecutor and now as an Illinois criminal defense attorney, I have seen defendants agreeing to continuances without any explanation from their attorneys. The defendants look up and over a year has passed on their case without any benefit or end in sight. A criminal defense lawyer who will communicate with you the reasons for the continuance or the reasons why pre-trial motions have been filed will ease your mind that your case is processing as it should be. Only with an attorney that will communicate with you is how you can ensure rights to a speedy trial are protected and enforced.

At Jaleel Law, we pride ourselves on responding to our client’s questions as soon as we can and in most cases well within 24 hours. We never feel like our clients are bothering us or disturbing us, instead, we believe that an open communication between an attorney and the client is critical piece in a successful defense. We rely on our clients to speak to us truthfully and honestly just like our clients want the same. Whether you are charged with a crime and want to ensure that your rights are protected by a former prosecutor who actually cares what happens to you or whether your rights have been denied, we can help. We have successfully defended people just like you in the trial courts and in the appellate courts. We have the experience to win regardless of where your case is currently. Contact us today to see what we can do in your case.

Know Your Rights: Can the Police Make You Get Out of Your Car?

Can a Police Officer Order You Out of Your Car

Can a Police Officer Order You Out of Your Car

Know Your Rights: Can the Police Make You Get Out of Your Car?

Most encounters with the police occur after a traffic stop and while most traffic stops are routine, the cops are trained to view traffic stops as a potentially dangerous or deadly situation. That view sometimes can result in terrible outcomes, which is why it is imperative that everyone knows their rights.

A situation that arises more often than not is a police officer asking someone to get out of his or her car following a routine traffic stop. While common sense says that being asked by the police to get out of your car after being stopped for something as trivial as an expired registration sticker or not using a turn signal is unreasonable and an invasion of someone’s rights, the United States Supreme Court held otherwise. In a landmark decision, the Supreme Court held that the police can make you get out of your car after a valid traffic stop. This ruling applies to the driver and all the passengers in a car. Because of this ruling in Pennsylvania vs. Mimms, a person must exit their car if ordered to do so by the police.

Background of Pennsylvania vs. Mimms

Mimms involved a case where two Philadelphia police officer stopped a car being driven by Harry Mimms for driving with expired plates. After stopping his car, the police ordered Mimms to step out of his car, which was common practice for the police department. After Mimms complied with the officer’s order, the police observed an unusual bulge in Mimms’s jacket. The police then searched Mimms and discovered a handgun.

Mimms unsuccessfully sought to have the gun and bulk ammo suppressed on the grounds the police violated his 4th Amendment rights against unreasonable searches and seizures. The Pennsylvania Supreme Court ruled that the police did not have probable cause to order Mimms out of his car and reversed the conviction against him. However, the Supreme Court of the United States agreed to take the case on appeal to answer the question whether the police order to Mimms for him to get out of the car, which was given after Mimms was lawfully stopped for a traffic violation, was reasonable and thus permissible under the 4th Amendment?

In a 6-3 per curium opinion, SCOTUS held that the police routinely asked drivers who were being ticketed to exit their cars for the safety of the officer. The police stated that it would diminish the chance that person could get something from the car while the police officer is writing the ticket and attack the officer. Also if the stop was executed in a high traffic area, having the driver stand between the police car and the driver’s car allows the police to conduct the traffic stop away from moving traffic.

Why Can the Police Make You Get Out of Your Car?

The Mimms Court held that allowing the police to make a driver exit his car is a nothing more than a “mere inconvenience” to the driver especially when compared to the safety benefits to the police. The Court reasoned that since the car was stopped after a valid traffic stop and ordering the driver to get out of the car was a “minimal and reasonable intrusion” of his freedom. The Court further held that the search would have occurred regardless if the Mimms was out of his car or seated because the bulge in his jacket was visible while he was seated in the car. The Court held that the bulge allowed the police to assume that Mimms was armed and posed a danger to the police. Under these circumstances, the Mimms Court held that any cop of “reasonable caution” would likely have conducted the “pat down” of Mimms.

The dissenting opinions in Mimms that were written by Justices Marshall and Stevens argued that the new rule created by Pennsylvania vs. Mimms greatly expanded the police officer’s right in searching an individual that they stopped. The dissenting opinions predicted what would happen, the police were limited in searching an individual only to the extent they could an invent a justification for the search based upon officer safety.

After a traffic stop it is imperative that you do everything possible to protect your rights and that can only begin if you know your rights. If stopped by the police for a traffic stop, the officer can order you out of your car without violating your constitutional rights. However, that doesn’t prevent you from doing everything to protect your rights. Remember the interaction as best as you can and write it down, better yet record the interaction.

However, the most important thing you can do is hire a criminal defense attorney who knows what he or she is doing. Not all criminal defense lawyers are fully versed on the 4th amendment and search and seizure law. Contact Jaleel Law today to discuss how we can help win your case.


The current state of search and seizure law allows a police officer to order a driver and the passengers out of vehicle that is stopped for even a minor traffic violation. However, the law does not require you to answer any questions or to consent to a search of your vehicle. If a police officer orders you out of your car, you must comply and do what the officer orders but remember to not answer any questions and don’t allow the police officer to search your car.

If you have been arrested following a traffic stop, contact the Chicago criminal defense attorneys at Jaleel Law P.C. to discuss your options. We have successfully had the evidence against our clients suppressed because the police violated our clients’ 4th Amendment rights. Call us today to discuss what we can do for you.

At Jaleel Law P.C. we can help you appeal your case if you have been wrongfully accused of a crime. Contact us today via our Appeals website