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Speedy Trial Wisconsin and Federal


Defendants in criminal cases are afforded protection against prejudicial delays in their criminal cases. Depending on the length of delay, reasons for delay, and whether and when the defendant was arrested and or charged, the defendant may need to file a motion to dismiss for violation of due process and or speedy trial rights. In Wisconsin, the statutory right to a speedy trial is: 971.10(1) (1) In misdemeanor actions trial shall commence within 60 days from the date of the defendant's initial appearance in court. 971.10(2)(a) (a) The trial of a defendant charged with a felony shall commence within 90 days from the date trial is demanded by any party in writing or on the record. If the demand is made in writing, a copy shall be served upon the opposing party. The demand may not be made until after the filing of the information or indictment. For remedies, see 971.10(4) (4) Every defendant not tried in accordance with this section shall be discharged from custody but the obligations of the bond or other conditions of release of a defendant shall continue until modified or until the bond is released or the conditions removed.

Violation of the Constitutional right to a speedy trial may result in dismissal of the charges. Both the Sixth Amendment to the United States Constitution and article I, section 7 of the Wisconsin Constitution guarantee an accused the right to a speedy trial.  [4] In order to determine whether an accused’s right to a speedy trial has been violated under the Federal Constitution, we use the four-part balancing test established in Barker, 407 U.S. at 530, and we use the same test under the Wisconsin Constitution. Day v. State, 61 Wis. 2d 236, 244, 212 N.W.2d 489 (1973). We consider (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530. The right to a speedy trial is not subject to bright-line determinations and must be considered based on the totality of circumstances that exist in the specific case. Id. Essentially, the test weighs the conduct of the prosecution and the defense and balances the right to bring the defendant to justice against the defendant’s right to have that done speedily. Id. The only remedy for a violation of the right to a speedy trial is dismissal of the charges. Id. at 522.  [4] The Sixth Amendment to the United States Constitution provides that “the accused shall enjoy the right … in prosecutions by indictment or information to a speedy public trial.” Article I, section 7 of the Wisconsin Constitution provides in part that “[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.” State of Wisconsin v. Urdahl 2005 WI App 191