Read Full Article (PDF)


Unavoidable Necessities: How COVID-19 and Ali v. Commonwealth Illustrate the Need for a New Balancing Test for Speedy Trial Right Claims


The COVID-19 pandemic is still an ever-present phenomenon in the United States. Since the pandemic began in March 2020, over one million Americans have died as a result of this disease. During that time period, the pandemic impacted the everyday lives of Americans and the institutions we depend on. The judicial system in particular was affected by COVID-19. In Virginia, the Supreme Court of Virginia declared a judicial emergency in response to the pandemic. As a result of this judicial emergency, the trials of many criminal defendants were postponed for an indefinite period of time. This resulted in many criminal defendants languishing in jail during the pandemic. Many of these defendants, in Virginia and other states, have challenged their subsequent convictions, arguing that their Sixth Amendment right to a speedy trial was violated when their trials were not allowed to move forward. These challenges have been met with little to no success. On May 31, 2022, the Court of Appeals of Virginia decided a case, Ali v. Commonwealth, that sought to bring clarity to the law of the Commonwealth relating to speedy trial rights and COVID-19.

This Comment reviews the Ali decision, the history of speedy trial jurisprudence, and the continued impact of Barker v. Wingo. In Barker, the Supreme Court of the United States set out a four factor balancing test for analyzing a defendant’s speedy trial claim. The court in question looks at the facts of the case and analyze the following: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) the prejudice suffered by the defendant. Once the court has completed this analysis, it balances these factors and determines if the defendant’s right to a speedy trial had been violated.

Courts have followed this balancing approach for the last fifty years. However, this Comment illustrates how COVID-19 and previous natural disasters have shown that courts should no longer follow the Barker four-factor test. Instead, this Comment proposes a similar, but different test: the Unavoidable Necessities Test. Under this test, the government has the burden to show that it was not responsible for an intentional or negligent action that led to the defendant’s trial being delayed. If the government intentionally or negligently caused the delay in the defendant’s trial, the court would compare the intrinsic importance of the delay, the length of the delay, and its potential for prejudice to the defendant in determining whether the defendant’s speedy trial right was violated.

Roger D. Herring *

* J.D. Candidate, University of Richmond School of Law