What is the 180 Day Rule?
The 180 day rule is one of the most important pre-trial rules that a person who is arrested in Michigan will deal with during their case. The purpose of the Court Rule is to allow Defendants to be brought to trial within a reasonable period of time. Generally speaking this Rule provides that a person charged with a crime has a right to a trial within 180 days after an arraignment in the District Court (if they are a prisoner) or 365 days if they are not a prisoner. While the Rule is worded in general terms, other rules provide certain exceptions when the Rule can be tolled or extended . Just as is commonly done in other areas of the law, this Rule must be strictly followed by the Court or any subsequent trial is considered invalid. In any criminal case the prosecutor must be able to show good cause for any delays past this time and show that they have acted with due diligence (meaning that they have done everything they should have in a timely manner). As a result, this Rule is a powerful tool that can be used to force prosecutors to follow the strict criminal trial timetable set forth by the Michigan Supreme Court and allow the Courts and the criminal justice system to collectively avoid unnecessarily delaying criminal cases for reasons that do not benefit the Defendant.
Historical and Jurisdictional Context
The 180 Day Rule finds its legal origin in the New York state legislature, specifically Section 30.30(1)(a) of the New York Criminal Procedure Law, which governs when a criminal case can be deemed ready for trial. The 180 Day Rule states that "no person shall be tried for any offense in a court unless the action is commenced by the filing of an accusatory instrument within six months of the commencement of the action." While this statute only seems to apply to felony actions in New York State, it’s also worth noting that prior case law involving both felonies and misdemeanors has established that the same time restrictions apply in lower courts.
In spite of the 180 day time restriction of criminal prosecution, these statutes do not apply to cases charged as lesser included offenses. Therefore, if an original felony charge is reduced to a misdemeanor that carries with it a maximum sentence of 365 days incarceration, then the 180 day time limit no longer applies. The Court of Appeals held in People v Velasquez, 80 NY2d 3 (1992) that "the Legislature intended that Where a defendant is charged with a felony, . . . the limitation period for speedy trial is governed by CPL 30.30(1)(a), even where the charges are subsequently reduced to a misdemeanor."
Although the 180 Day Rule was created in the New York State legislature, there are significant federal applications to the statute as well. In order to protect against manipulated statutory speedy trial rights, the United States Congress created the Speedy Trial Act in 1974 as a response to constitutional violations, particularly those related to the Sixth Amendment. Because the statute limits the amount of time between an arrest and indictment, this equitable tolling provision parallels the New York 180 day rule, and is "designed to prevent ‘dilatory tactics’ by the government."
Effects of the 180 Day Rule on Defendants
Under the Michigan Constitution, a defendant in a State criminal proceeding is entitled to a speedy trial. Constitutional speedy trial rights may be waived through voluntary act or inaction or through a knowing and intelligent relinquishment of the protected right. . . . Constitutions and statutes concerning speedy trials work in concert with each other and are meant to be complementary. . . . "As a matter of policy, the entire system works together to assure that criminal defendants have the right to a speedy trial." State statutory law gives Michigan courts subject-matter jurisdiction to hear cases in a manner going beyond that required by the Michigan and United States constitutions. In Carman, supra, the Michigan Supreme Court held that under the statutes, the state court has jurisdiction to enforce the 180-day rule through dismissal and that the court need not apply constitutional speedy trial standards when ruling on a motion for such a sanction. Therefore, violation of the 180 day rule entitles the defendant to dismissal regardless of the merits of his or her constitutional speedy trial argument. See MCR 6.504(G)(2) (1996). In People v. Williams, 386 Mich. 227; 192 N.W.2d 241 (1971), the Court held that the constitutional right to a speedy trial ‘is implemented by a rule of court [GCR 785.5(2)] that, like similar rules in many other states [citation omitted], provides[ ] for dismissal of charges when defendants are not tried within 180 days of demand, regardless of whether they have suffered any prejudice as a result of the delay.’ (Emphasis added.) The Williams Court held that the one-hundred eighty day demand statute may be invoked by a defendant even if he has been released on bail with no state imposed conditions or restrictions. The demand statute can be invoked by the filing of a motion or by demand in open court. People v. Collins, 38 Mich. App. 412, 416; 197 N.W.2d 432 (1972). People v. White: Court of Appeals finds defendant’s trial delayed by two and one-half years violated his right to speedy trial as set forth in MCL 780.131. In People v. White, 68 Mich. App. 673; 243 N.W.2d 733 (1976), the defendant was charged with felonious assault which allegedly occurred in late March, 1973. On April 3, 1973, after the defendant had filed his demand for trial, the defendant was incarcerated for violation of probation in another case. A bench warrant was not entered to try the defendant on the assault charge until June, 1975, at which time he was brought back to Wayne County. Thereafter, the defendant filed a motion to dismiss alleging that more than two the statute provided, on October 10, 1975, the Court held that ‘1 [the defendant] was denied his absolute right to be tried within one hundred and eighty days after his demand for trial was made, and, therefore, the charges against him must be dismissed.’ See also, People v. Collins, 38 Mich. App. 408; 197 N.W.2d 432 (1972). But see, People v. Clyde, 58 Mich. App. 471; 228 N.W.2d 430 (1975)(defendant’s constitutional right to a speedy trial was satisfied despite a two-year delay in bringing him to trial).
Limitations and Exceptions
The 180 day rule is not inflexible and there are many exceptions to it. One of the most common is the concept of a "good cause extension." Essentially, this is a delay that is caused by the prosecution’s needing more time to prepare for trial—often called a special proceeding. In very specific circumstances, a criminal complaint can also be dismissed if the defendant is not brought to trial in less than 180 days from the date on which they were arraigned. Although prosecutors are required to use due diligence in the prosecution of their cases and must ask for a special proceeding extension to the 180 day rule that was caused by the prosecutor themselves (e.g.,, slow or unavailable witnesses, unavailable officers, clerical errors, etc.). Unfortunately, situations arise that may necessitate such a special proceeding. Delays can be permissible in the following cases: A court-appointed delay. A continuance in which the defendant is represented by counsel. A mistrial. A prior appeal. These situations allow the time in which the prosecutor must file charges to potentially be extended from 90 days, up to 180 days, and then beyond. Once the 180 day time period passes, however, the right to be tried in a timely manner still exists for a defendant and he or she may have the case against them dismissed. There are numerous other limitations and exceptions to the 180 day rule, but those are the most significant. It is important to note that the defendant can waive any of those exceptions or limitations. The defendant will partially do that by retaining a defense attorney who files their motion. Although defendants have the right to a speedy trial, there are limits on their rights as well. For example, inmates in court-locals can only appear on certain pretrial matters if they waive their right to a speedy trial for hearings. Any continuation must be for good cause with approval by the court.
Effect on Prosecution Tactics
The 180 Day Rule also has a significant impact on the strategies employed by the prosecution. Similar to defendants , the prosecution must develop their case within the 180-day period to ensure their evidence is fully admissible at trial. The ticking clock may cause the prosecution to feel pressure to rush their case preparation and whether this results in additional strain placed on prosecutorial teams or whether they aggressively move forward with cases that they might have been inclined to dismiss in the past due to resource concerns is unknown.
Recent Changes and Implications
Recent developments include the automatic tolling provisions of the Interstate Agreement on Detainers Act (or IAD), which are now in place for New Jersey crime victims due to the amendments enacted in June 2015 pursuant to N.J.S.A. 52:14B-3.1. Under New Jersey’s law, "Any period of time during which, by reason of error or administrative oversight, a trial could not reasonably have been scheduled shall not be counted as part of the 180 days" (emphasis added). This provision appears to codify "out-of-court" delays, such as those caused by administrative errors.
A recent decision from the United States Court of Appeals for the Fourth Circuit, however, suggests that there are still limits to delays counted towards the 180 day time period. In United States v. Coady, No. 15-7176 (4th Cir. Aug. 2, 2016), a majority of the court decided that the defendant’s waiver of his constitutional right to a speedy trial did not waive any protections contained in the IAD. The majority also held that where a defendant’s counsel is responsible for a delay, the resulting "out of court" delay should not be charged against the government. In that case, Mr. Coady’s attorney failed to move for a prompt trial after his removal to New Jersey from an out-of-state detainer. As a result, Mr. Coady could not be tried before the statute of limitations expired. The majority held that in such circumstances, the delay in Mr. Coady’s federal prosecution was properly charged against him, not the Government, and therefore did not implicate the 180-day time requirement for trying the interstate detainer. In dissent, Judge Agee cited to United States v. Cole, 27 M.J. 126 (C.M.A. 1988) for the proposition that the defendant may waive his rights under the IAD even if the State cannot "initiate a[] new prosecution against him before his [3- or 5- year] statute of limitations has run." The majority declined to address that aspect of "whether a defendant can waive his interstate detainer rights."
An additional recent case before the New Jersey Appellate Division did hold that delays attributable to a delay in the Section 105 certification process may be charged against the State. State v. Areeb Majeed, No. A-0453-14T2 (App. Div. July 27, 2016). The Court found that where the Prosecutor submitted the certification to the Superior Court to be reported promptly after a defendant was sentenced on unrelated State charges but failed to certify his status on non-State charges for over six months, and the defendant was prejudiced thereby, then the 180-day period should have stopped during that time, ultimately holding that his violation of probation should have been vacated.
Given the severity of sanctions which include dismissal of charges, this is a developing area in which criminal practitioners should remain up-to-date. The 180 day time period should not be regarded as a "black and white" issue, but attorneys should recognize the recent changes and decisions which may affect the 180 day rule and its application.
Practical Considerations for Attorneys
A practical tip for prosecutors dealing with the 180 day rule is to set a timer. Even if the prosecution isn’t worried about getting custody of a defendant again to keep the case alive, simply setting a calendar reminder gives you the reminder that the time limit has passed and the case has to be dismissed from Superior Court.
From defense-side, even when the court is taking forever scheduling a preliminary hearing, read the clock carefully. Often, defendant’s are at liberty during the waiting period between arrest and the preliminary hearing, and when the hearing is delayed, that defendant will now have their freedom (and possibly visitation, financial, work status, etc.) compromised. Making sure you are conscious of the 180 days and the property rights that go along with it is essential to being a good public defense lawyer.
Some examples of how to avoid mistakes:
Attorney A gets PHD set for January 15th and Defense attorney A realizes that the witnesses have not been interviewed and that the information received from the investigator was not reflective of the clients case. Attorney A continues to do an investigation, but by January 10th, they learn that the victim will not be available on the date of the preliminary hearing. So attorney A calls the DDA to get a continuance in the preliminary hearing; the DDA responds that he doesn’t believe that it’s a "good cause" continuance, and that he will consider it- but that doesn’t mean more than 10 days out. So the prosecutor asks for a new date of March 1st. Attorney A takes the date and on the 90th day finds out that it’s now set for April 2nd.
While this situation was good cause, the prosecutor probably wouldn’t have been able to deny the investigation delay, because then Defense A would be released from custody and the case would be dismissed . On something like a probable cause determination, it’s not a big problem. In this scenario, there is no way out of jail until the preliminary hearing is held.
In Attorney B’s case, she gets a preliminary hearing on February 2nd, but it doesn’t work out for some reason. As an example, the defendant does not appear in court. Defense attorney B does get a continuance and the date found is the April 1st date. Then they wait and wait, until finally they receive notice that the hearing is set to be continued again. This time, the proposal is that they are going to set the hearing for June 23rd. In California Penal Code section 1382, there is a set of rules that say that if the matter is set for preliminary hearing, then every time there’s a continuance, it will be on a hearing not to exceed 60 days from the date of the last continuance. And this is the situation here. So they ask for a new date of June 23rd, but that means that the timeline has now gone beyond 60 days, and so the court would likely have to consider that a good cause continuance, but that means that the statute of limitations is now reached. This defendant is now in custody, and now the case is either finished for now, or it’s a Bremerton case, where you find some way to file charges all over again and get the whole thing into custody again. Because if not, the defendant will now be out there somewhere, and not available for Preliminary Hearing.
Essentially, the practical tip is: focus on good use of your time. More so than avoiding the actual language of the statute, make sure that you have a following for the trial date, and keep that trial date as a benchmark and put reminders on your calendar at 1 month, 2 weeks, and a week before.