NCJ Number
14104
Journal
Marquette Law Review Volume: 55 Issue: 3 Dated: (WINTER 1972) Pages: 457-509
Date Published
1972
Length
53 pages
Annotation
THIS PAPER EXAMINES THE QUESTION OF WHETHER THE GOVERNMENT MAY APPEAL THE GRANTING OF A MOTION TO DISMISS A FEDERAL CRIMINAL PROSECUTION FOR WANT OF SPEEDY TRIAL, AND, IF SO, WHEN THE GOVERNMENT MAY DO SO.
Abstract
THE HISTORY OF APPEALABILITY IN FEDERAL COURTS IS FIRST EXAMINED. DISMISSAL ON THE CONSTITUTIONAL GROUNDS OF WANT OF SPEEDY TRIAL DOES NOT READILY FIT INTO ANY OF THE CATEGORIES OF APPEALABILITY ESTABLISHED IN THE CRIMINAL APPEALS ACT OF 1907. THEREFORE, IN ORDER TO EVALUATE THE WISDOM OF ALLOWING GOVERNMENT A RIGHT TO APPEAL ON THE ISSUE OF WANT OF SPEEDY TRIAL, THE AUTHOR EXAMINES THE SIMILARITY OF SUCH AN APPEAL TO EXISTING CATEGORIES IN WHICH THE GOVERNMENT MAY APPEAL. THESE POSSIBLE CATEGORIES FOR DETERMINING APPEALABILITY INCLUDE THE JURY QUESTION VERSUS NON-JURY QUESTION, QUESTIONS OF FACT VERSUS QUESTIONS OF LAW, PLEAS IN BAR, AND JEOPARDY. THE SCOPE OF APPELLATE REVIEW, THE BASIC OBJECTIONS TO GOVERNMENT APPEAL, ALTERNATIVE GROUNDS FOR GOVERNMENT APPEAL, COMPARISONS WITH STATE LAWS, AND THE RECENT REVISIONS OF THE CRIMINAL APPEALS ACT ARE DISCUSSED AS WELL. THE AUTHOR CONTENDS THAT GOVERNMENT APPEAL IN CRIMINAL CASES PRESENTS A DANGER OF ABUSE, AND THAT APPEAL OF DISMISSAL FOR WANT OF SPEEDY TRIAL PRESENTS SPECIAL DANGER OF ABUSE. SUCH DISMISSAL IMPLIES A FINDING OF UNREASONABLE PROSECUTORIAL DELAY, AND PERMITTING APPEAL BY THE PROSECUTION IN SUCH CASES WOULD ALLOW FURTHER DELAY TO REVIEW A FINDING OF DELAY WHICH HAS ALREADY BEEN FOUND UNREASONABLE. FOR THESE REASONS THE AUTHOR STATES THAT RELEASE OF THE ACCUSED ON RECOGNIZANCE AND OTHER PROTECTIONS IN THE CRIMINAL APPEALS ACT SHOULD BE MOST VIGOROUSLY INSISTED UPON AS A CONDITION TO PROSECUTORIAL APPEAL IN THE CASE OF DISMISSAL FOR WANT OF SPEEDY TRIAL. (AUTHOR ABSTRACT MODIFIED)