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Speedy Trials and Criminal Lawyer

Speedy Trials & West Virginia Felony Cases: A Criminal Lawyer Perspective

If criminal charges have been brought against you or a loved one, a basic concept your West Virginia criminal lawyer should keep in mind is the right to a speedy trial. The government is required to bring you to trial within a reasonable time. West Virginia statutory law, the West Virginia Constitution, and the United States Constitution require that citizens be timely brought to trial in West Virginia felony cases.
Generally, the right to speedy trial exists: to avoid prolonged detention prior to trial; to avoid prolonged public suspicion; to ensure that memories and evidence are fresh; and to guarantee the prompt administration of our criminal justice system.

When examining the right to speedy trial, it’s important to look at the specific source of the right. When constitutional prohibitions are violated, oftentimes the appropriate remedy is the dismissal of the criminal case. Your West Virginia criminal lawyer should closely examine the amount of time that has passed as well as the specific authority under which the speedy-trial right is asserted in your criminal case. This blog provides a brief overview of West Virginia felony speedy-trial issues. It is not a substitute for legal advice from a West Virginia criminal lawyer.

A. The Right to Speedy Trial Under The West Virginia Constitution and the United States Constitution

Both state and federal constitutional provisions provide that a defendant charged with a crime is entitled to a speedy trial. Article III, Section 14 of the West Virginia Constitution mandates that trials be conducted “without unreasonable delay.” The Sixth Amendment of the United States Constitution provides that “the accused shall enjoy the right to a speedy … trial[.]”

In addition to constitutional provision’s, statutory law provides similar rights to speedy trials in West Virginia felony cases. These specific rights are examined below.

B. The Speedy Trial Right in West Virginia Criminal Felony Cases

1. The One-Term Rule

The One-Term Rule is a statutory right under West Virginia Code § 62-3-1. This statute provides that where a person is indicted in a felony criminal case, he or she must be tried within the same judicial term of the indictment. This is not a constitutional right. The right to trial within one term must be asserted by the defendant. This right applies to any term in which the defendant asserts the right. Even then, for “good cause” trial can still be continued beyond the term of court in which the defendant asserts the right.

2. The Two-Term Rule

The Two-Term Rule is not necessarily a speedy trial right. However, it is a critical statute that protects a defendant from prolonged incarceration while awaiting indictment. West Virginia Code § 62-2-12 directs that a person shall be “discharged from imprisonment” if he or she is not indicted “before the end of the second term of court, at which he is held to answer…” This rule simply provides that if a defendant is in jail after being charged with a felony and is awaiting indictment by a grand jury, he or she cannot be kept in jail after the end of the second term of court. The statute provides some exceptions to the rule. For example, if a material witness has been prevented from attending a proceeding, the rule does not apply. Likewise, if the defendant was insane at the time of the offense, the rule likewise does not apply.

3. The Three-Term Rule

The Three-Term Rule is the West Virginia Legislature’s pronouncement of the criminal law speedy trial right contained within the West Virginia Constitution. West Virginia Code § 62-3-21 provides that if a defendant is charged by presentment or indictment and “if there be three regular terms of court, after the presentment is made or the indictment is found, without trial … it shall be forever discharged.” The statute provides exceptions to the general rule. Some exceptions to the rule are: where a defendant is insane; where a witness has been prevented from attending; where a defendant requests a continuance or fails to appear; or the inability of a jury to agree on a verdict. Importantly, when calculating the terms of court of the Three-Term Rule, the initial term of indictment is not counted. A violation of the Three-Term Rule requires that a West Virginia criminal case be dismissed.

C. The Speedy Trial Right Under The United States Constitution

As previously mentioned, in addition to state rights, the right to speedy trial is also guaranteed by the Sixth Amendment of the United States Constitution. Calculation for the federal right to a speedy trial begins to run at the time of actual arrest or when formal charges have been lodged. Generally, under the Sixth Amendment right to a speedy trial, courts look to the following factors when determining whether a speedy trial violation occurred:

• the length of delay;
• the reason for the delay;
• the defendant’s assertion of his right; and
• prejudice to the defendant.

The United States Supreme Court has found that post-accusational delay is assumed prejudicial as it approaches one year. Nevertheless, a court will still consider all four factors when determining whether a violation of the Sixth Amendment occurred. A speedy trial violation under the Sixth Amendment requires that a West Virginia criminal case be dismissed.

D. Contact a West Virginia Criminal Lawyer To Protect Your Rights.

The State of West Virginia has an obligation to timely bring a defendant to trial. When calculating speedy trial issues, the devil is often in the details. A West Virginia criminal lawyer will analyze the specific circuit court’s “term of court” in the context of speedy trial rights.
Speedy trial violations can cause a criminal case to get dismissed. Barney Law PLLC provides criminal defense for client in Putnam County, Kanawha County, and surrounding areas. Feel free to contact us at 304-932-8775, or through our website, to discuss the potential for representation.