What You May Not Know About the Right to a Speedy Trial

Individuals have many familiar Constitutional rights. Freedom of Speech and the Fifth Amendment protection against self-incrimination are notable. Nobody but the individual may claim or waive those rights. So, for example, I cannot appear in court and demand that you testify against yourself.

The right to a speedy trial is an exception to that rule. This right applies to individuals AND to society. The courts have repeatedly held that justice is best served when a defendant’s trial occurs as soon as reasonably practicable. The benefits to society of a speedy trial are many and varied. A delayed trial may affect the availability of witnesses and memories of particular events. In more egregious cases, it limits the amount of time a defendant can use to intimidate witnesses or to attempt to try the case in the media.

Interestingly, the ability (and duty) to schedule a trial as soon as practicable is one of the most valuable arrows in a judge’s quiver. In some cases, it is impractical to hold a defendant in jail pending trial. Assessing fines for improper conduct may not deter wealthy individuals. And, most significantly, issuing a gag order may arguably violate the defendant’s free speech rights.

In cases where the alternatives are ineffective, society is protected by having the trial date accelerated. A judge frequently asks both the prosecutor and defendant for a proposed trial date and, absent a clear abuse of discretion, the judge’s determination will stand.

Sometimes defendants desperately want a trial delayed. Well-disciplined prosecutors can short circuit many delay attempts. Consider what the prosecutors in the DC case against Donald Trump did.

First, they only named one defendant. The more defendants there are in a case, the more individual delay arguments that can be raised.

Second, they limited the charges to those that have a strong history of judicial interpretation, even though there were other potential charges available to them. Many delays are caused by a defendant claiming that the charges they face are “unique.”

Third, they provided trial evidence (often called “discovery”) to the defendant promptly and well outlined, giving them more time to prepare a defense. 

Parenthetically, you will hear that there are millions of pages of discovery that have been turned over. Defendants claim that it will take years to read it all. This is a red herring. The state-of-the-art in reviewing discovery is to use computer-aided, key word searches. The idea that there are paralegals actually sitting down and reading millions of pages harkens back to a bygone era. It is simply unnecessary and no longer happens in the real world. Sounds good, though.

On August 28, the judge is scheduled to hear arguments about when the trial should begin. Prosecutors will argue in favor of a speedy trial, suggesting a highly aggressive date of January 2, 2024. Defendants will counter with a date of April 2026 or the Rapture, whichever occurs first.

The judge will set the trial date based largely on the elements discussed above.

Trump’s Greatest Vulnerability—the Deposition

Vulnerability is not the same as guilt. I need to emphasize that up front.

Today, New York’s highest state court ruled that Summer Zervos may proceed with her lawsuit against Donald Trump. Zervos claims that Trump sexually assaulted her a number of years ago. He responded by calling her a liar. She filed suit against him for defamation. The litigation was placed on hold, due to Trump’s claim of presidential immunity. In essence, the court today said that since Trump is no longer president, the immunity arguments have disappeared.

Now that the case can continue, Zervos will be entitled to take Trump’s deposition. Why is that so immportant?

Depositions are a formal pre-trial process where an individual answers questions under oath. In a criminal case, a defendant has little to fear by being deposed. The defendant has the right to refuse to answer questions (5^th Amendment right to not incriminate yourself). The fact that the defendant has refused to answer questions may not be introduced into evidence at the later trial.

In civil cases (where money damages are the usual goal), you have no 5^th amendment rights. There are only three ways to answer a question, and all of these answers may create later problems.

First, you can answer the question. This answer had better be truthful. If is later shown to be a lie, you can be later charged separately for lying under oath (perjury). Even if you are not charged with perjury, the jury can use the lie to help them decide your credibility.

Second, you can refuse to answer the question. That refusal can be entered into evidence at trial, affecting your credibility to the jury. Separately, the other side may go to the judge after the deposition is over and have the judge require you to answer the question.

Third, you can say you do not know the answer or don’t remember. Again, your lack of knowledge or memory may be considered by the jury to determine your credibility.

This is not where deposition problems end. One of the issues that plaintiffs have is that some of the information they need to prove their case may be only known to or available to the defendant.

Answers to deposition questions often reveal the names of other people with knowledge of the circumstances. They may become witnesses later. Perhaps more importantly, depositions may reveal the existence of documents that may be relevant to the case. The plaintiff may follow the deposition by requesting that these documents be produced.

Defendants such as Trump are extremely guarded about written information that they think will make them vulnerable or the names of people with individual knowledge of what happened. The deposition process has the potential to open the door to that evidence.

If there were only one case pending or threatened against Trump, the opened door might not be a big deal. However, once the evidence comes to light, other cases may find a way to make use of it as well. And that is where the true vulnerability lies.