The Burden of Time: Government Negligence in Pandemic Planning as a Catalyst for Reinvigorating the Sixth Amendment Speedy Trial Right

67 Vill. L. Rev. 1, 1 (2022)

33 Pages Posted: 20 Jun 2022

See all articles by Sara Hildebrand

Sara Hildebrand

Widener University Delaware Law School

Date Written: June 17, 2022


In March 2020, due to public safety concerns posed by the virulent COVID-19 virus, many of this country’s courthouse doors closed to the public. Court closure was not novel—courthouses have closed on numerous occasions in our country’s history due to fires and natural disasters. An avian flu pandemic scare in the mid-aughts prompted the federal government and national state court organizations to release guidelines, urging courts to plan for continued operations during a pandemic, should one arise. Despite these warnings, many courts found themselves without a plan for continued operations when the COVID-19 pandemic began to rage. Even during a pandemic, courts bear a responsibility to honor the constitutional rights of those with cases before them, including the Sixth Amendment right to a speedy trial. Courts’ failure to plan to safely hold in-person jury trials during this pandemic forced shut-downs, which led to trial backlogs. Hundreds of thousands of criminally accused people languished in or out of pretrial detention for years, with the stress and anxiety of a criminal accusation hanging over their heads, while they awaited their jury trial.

Under currently controlling precedent, pretrial delay caused by a court’s negligent disregard of reasonably foreseeable circumstances is weighed only slightly against the government. What is worse, the burden placed on claimants to establish actual prejudice to their ability to present a trial defense makes it nearly impossible to prevail on a Sixth Amendment speedy trial claim. Extended pretrial delays occasioned by courts’ pandemic planning failures brings to light weaknesses in the analytical framework related to Sixth Amendment speedy trial claims and emphasizes the need to reinvigorate that right. This Article seeks to revive a decades-long scholarly conversation about the need to inject meaningfulness in the Sixth Amendment Speedy Trial Clause through a jurisprudence that serves the original aims of the speedy trial right and suggests a novel framework for doing so.

Suggested Citation

Hildebrand, Sara, The Burden of Time: Government Negligence in Pandemic Planning as a Catalyst for Reinvigorating the Sixth Amendment Speedy Trial Right (June 17, 2022). 67 Vill. L. Rev. 1, 1 (2022), Available at SSRN:

Sara Hildebrand (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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