NCJ Number
17848
Journal
Capital University Law Review Volume: 3 Issue: 2 Dated: (1974) Pages: 292-301
Date Published
1974
Length
10 pages
Annotation
THE U.S. MILITARY COURT OF APPEALS HELD IN 1973 THAT A PRESUMPTION OF A LACK OF SPEEDY TRIAL WILL EXIST IN THE ABSENCE OF DEFENSE REQUESTS FOR CONTINUANCE AND WHERE THE ACCUSED'S PRETRIAL CONFINEMENT HAS EXCEEDED THREE MONTHS.
Abstract
THIS PRESUMPTION WILL PLACE A BURDEN ON THE UNITED STATES GOVERNMENT TO SHOW DILIGENCE OR TO DEMONSTRATE EXTRAORDINARY CIRCUMSTANCES BEYOND NORMAL OCCURRENCES WHICH CONTRIBUTED TO THE DELAY, NOT JUST FOR THE PERIOD OF TIME IN EXCESS OF 90 DAYS, BUT FOR THE ENTIRE PERIOD INCLUDING THOSE 90 DAYS. IN THE ABSENCE OF SUCH A SHOWING THE CHARGES ARE TO BE DISMISSED SINCE THE DELAY BEYOND 90 DAYS CANNOT BE JUSTIFIED. THE AUTHOR EXAMINES THE RIGHT TO A SPEEDY TRIAL IN THE MILITARY BY REVIEWING ARTICLES 10, 38, AND 98 OF THE UNIFORM CODE OF MILITARY JUSTICE (UCMJ). THESE ARTICLES COVER THE RESTRAINT OF PERSONS CHARGED WITH OFFENSES, FORWARDING OF CHARGES, AND NONCOMPLIANCE WITH PROCEDURAL RULES. PERTINENT MILITARY LAW IS CITED TO TRACE THE DEVELOPMENT OF STANDARDS IN THIS AREA. THE NEW STANDARD FOR A SPEEDY TRIAL, SET UP IN UNITED STATES V. BURTON (1971) AND CITED IN THE INSTANT CASE (UNITED STATES V. MARSHALL), IS THEN DISCUSSED. IN BURTON, THE COURT STATED THAT AFTER PRETRIAL CONFINEMENT OF MORE THAN THREE MONTHS, THE EMPHASIS WILL SHIFT TO A CLOSE EXAMINATION OF THE GOVERNMENT'S DILIGENCE THROUGH THE USE OF A JUDICIALLY CREATED REBUTTABLE PRESUMPTION. THIS RULING WAS CLARIFIED BY MARSHAL (THE INSTANT CASE) WHICH HELD THAT, EXCEPT IN SPECIFICALLY DEFINED EXCEPTIONAL CASES, ALL NECESSARY PRETIAL PROCEDURES MUST BE COMPLETED AND A TRIAL STARTED WITHIN THE THREE-MONTH TIME PERIOD. (AUTHOR ABSTRACT MODIFIED)