Photo by Mike on

Massachusetts criminal courts can dismiss the charges against a defendant if the prosecution has unreasonably delayed the proceedings and those delays have had a prejudicial effect on the case.

According to Rule 36(c) of the Massachusetts Rules of Criminal Procedure,

a defendant shall upon motion be entitled to a dismissal where the judge after an examination and consideration of all attendant circumstances determines that:

(1) the conduct of the prosecuting attorney in bringing the defendant to trial has been unreasonably lacking in diligence and

(2) this conduct on the part of the prosecuting attorney has resulted in prejudice to the defendant.

So what constitutes an unreasonable delay? All criminal defendants have a constitutional right to a “speedy trial.” Generally, this means that a defendant must be brought to trial within one year of his arraignment.

There are, of course, exceptions to the general rule.

Rule 36 contains a lengthy list of pretrial delays that are excluded from this dismissal rule. Such excluded delays include agreed-to continuances, competency evaluations of the defendant, interlocutory appeals, and basically all customary pretrial proceedings.

Excluding the allowed exceptions, a defendant who has not been tried within one year of his arraignment could file a motion with the court seeking dismissal of the case.

It should be noted that a footnote to Rule 36 states that

It is possible, although unusual, that a delay of less than twelve months could be deemed prejudicial and therefore violative of a defendant’s right to be tried with reasonable dispatch.

However, no cases are cited for this statement and it’s unclear under what circumstances charges could be dismissed in under a year.)

If the defendant is able to show that deliberate, unreasonable prosecutorial delay has operated to his prejudice, the appropriate sanction is dismissal of the charges with prejudice to the Commonwealth.

Whether dismissal is justified under Rule 36 will be a question for the trial judge to determine.