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Serna Motion - Barker v. Wingo (1972) 407 U.S. 514

Posted by Christopher Martens | Nov 06, 2015 | 0 Comments

Whether looking for a new job, seeking promotions, or otherwise trying to improve one's position in life, unresolved criminal cases can cause a significant negative impact on those efforts. Under the 6th Amendment to the United States Constitution, the right to have a speedy trial is recognized. This right was reiterated by and incorporated into the California Constitution (Article I, Section 15). This right generally ensures that anyone accused of a criminal act is given priority in the courts, and will quickly have their case decided and concluded by either conviction or acquittal. However, on occasion a case does not get resolved quickly, leaving the accused in limbo, often for years, wondering what is going to be done with their case. In 1985 the California Supreme Court addressed this very significant problem in a case titled Serna v. Superior Court (1985) 40 Cal.3d 239. In the Serna case the Court held that delays of a year or more between the filing of a criminal case and the prosecution of that same case are presumptively prejudicial to the defendant, and should be dismissed. With that the Serna Motion was born, which allows defendants to dismiss cases that have not been prosecuted for periods longer than one year.

However, the Serna Motion is not unlimited, as it is only available in situations where the government has delayed in pursuing a case, not for situations when a defendant's own actions have created some kind of delay in the proceedings despite the efforts of the government. This limitation on the Serna Motion is addressed by the United States Supreme Court in the case of Barker v. Wingo (1972) 407 U.S. 514. In this case the Supreme Court considered four factors regarding delays in prosecution to determine whether the delay was a violation of the 6th Amendment right to a speedy trial. The factors considered by the court were (1) the length of delay, (2) the reason for the delay, (3) the time and manner in which the defendant has asserted his right, and (4) the degree of prejudice to the defendant which the delay has caused. In California, the Serna case answers the first and fourth factors, specifically that a delay of more then a year is presumptively prejudicial to a defendant. But if the court determines that the delay under factor two was caused not by the governments actions, or lack thereof, but because the defendant acted in such a way that he fled from the jurisdiction of the court, avoided attempts to be taken into custody once he knew about a criminal complaint against him, or otherwise acted in some active manner to delay the proceedings, then a Serna motion will not help that defendant, since under American jurisprudence bad behavior as a means for defendants to gain an advantage for themselves is not rewarded.

But for all other prejudicial delays in prosecution, the Serna Motion is available to dismiss old cases, giving defendants a clean slate to move on with their lives.

About the Author

Christopher Martens

Bio Visalia and Bakersfield criminal defense attorney who has dedicated his life to helping those who have been accused of crimes or injured due to the negligence of others.


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