407 U.S. 514
92 S.Ct. 2182
33 L.Ed.2d 101
Willie Mae BARKER, Petitioner,v.John W. WINGO, Warden.
No. 71—5255.
Argued April 11, 1972.
Decided June 22, 1972.
 
      Syllabus
 
      Petitioner was not brought to trial for murder until more
 than five years after he had been arrested, during which time the
 prosecution obtained numerous continuances, initially for the
 purpose of first trying petitioner's alleged accomplice so that
 his testimony, if conviction resulted, would be available at
 petitioner's trial. Before the accomplice was finally convicted,
 he was tried six times. Petitioner made no objection to the
 continuances until three and one-half years after he was arrested.
 After the accomplice was finally convicted, petitioner, after
 further delays because of a key prosecution witness' illness, was
 tried and convicted. In this habeas corpus proceeding the Court of
 Appeals, concluding that petitioner had waived his right to a
 speedy trial for the period prior to his demand for trial, and in
 any event had not been prejudiced by the delay, affirmed the
 District Court's judgment against petitioner. Held: A defendant's
 constitutional right to a speedy trial cannot be established by
 any inflexible rule but can be determined only on an ad hoc
 balancing basis, in which the conduct of the prosecution and that
 of the defendant are weighed. The court should assess such factors
 as the length of and reason for the delay, the defendant's
 assertion of his right, and prejudice to the defendant. In this
 case the lack of any serious prejudice to petitioner and the fact,
 as disclosed by the record, that he did not want a speedy trial
 outweigh opposing considerations and compel the conclusion that
 petitioner was not deprived of his due process right to a speedy
 trial. Pp. 519—536.
 
      442 F.2d 1141, affirmed.
 
      James E. Milliman, Cincinnati, Ohio, for petitioner, pro hac
 vice, by special leave of Court.

Page 515
 
      Robert W. Willmott, Jr., Asst. Atty. Gen., Frankfort, Ky.,
 for respondent, pro hac vice, by special leave of Court.
 
 djQ  Mr. Justice POWELL delivered the opinion of the Court.
 
      Although a speedy trial is guaranteed the accused by the
 Sixth Amendment to the Constitution,1 this Court has dealt with
 that right on infrequent occasions. See Beavers v. Haubert, 198
 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950 (1905); Pollard v. United
 States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United
 States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627
 (1966); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30
 L.Ed.2d 468 (1971). See also United States v. Provoo, 17 F.R.D.
 183 (D.Md.), aff'd, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761
 (1955). The Court's opinion in Kloper v. North Carolina, 386 U.S.
 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), established that the right
 to a speedy trial is 'fundamental' and is imposed by the Due
 Process Clause of the Fourteenth Amendment on the States.2 See
 Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969);
 Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26
 (1970). As Mr. Justice Brennan


1
Page 516
 
 pointed out in his concurring opinion in Dickey, in none of these
 cases have we attempted to set out the criteria by which the
 speedy trial right is to be judged. 398 U.s., at 40—41, 90 S.Ct.
 at 1570. This case compels us to make such an attempt.
 
                               I
 
      On July 20, 1958, in Christian County, Kentucky, an elderly
 couple was beaten to death by intruders wielding an iron tire
 tool. Two suspects, Silas Manning and Willie Barker, the
 petitioner, were arrested shortly thereafter. The grand jury
 indicted them on September 15. Counsel was appointed on September
 17, and Barker's trial was set for October 21. The Commonwealth
 had a stronger case against Manning, and it believed that Barker
 could not be convicted unless Manning testified against him.
 Manning was naturally unwilling to incriminate himself.
 Accordingly, on October 23, the day Silas Manning was brought to
 trial, the Commonwealth sought and obtained the first of what was
 to be a series of 16 continuances of Barker's trial.3 Barker made
 no objection. By first convicting Manning, the Commonwealth would
 remove possible problems of self-incrimination and would be able
 to assure his testimony against Barker.
 
      The Commonwealth encountered more than a few difficulties in
 its prosecution of Manning. The first trial ended in a hung jury.
 A second trial resulted in a conviction, but the Kentucky Court of
 Appeals reversed because of the admission of evidence obtained by
 an illegal search. Manning v. Commonwealth, 328 S.W.2d 421 (1959).
 At his third trial, Manning was again convicted, and the Court of
 Appeals again reversed


2
Page 517
 
 because the trial court had not granted a change of venue. Manning
 v. Commonwealth, 346 S.W.2d 755 (1961). A fourth trial resulted in
 a hung jury. Finally, after five trials, Manning was convicted, in
 March 1962, of murdering one victim, and after a sixth trial, in
 December 1962, he was convicted of murdering the other.4
 
      The Christian County Circuit Court holds three terms each
 year—in February, June, and September. Barker's initial trial was
 to take place in the September term of 1958. The first continuance
 postponed it until the February 1959 term. The second continuance
 was granted for one month only. Every term thereafter for as long
 as the Manning prosecutions were in process, the Commonwealth
 routinely moved to continue Barker's case to the next term. When
 the case was continued from the June 1959 term until the following
 September, Barker, having spent 10 months in jail, obtained his
 release by posting a $5,000 bond. He thereafter remained free in
 the community until his trial. Barker made no objection, through
 his counsel, to the first 11 continuances.
 
      When on February 12, 1962, the Commonwealth moved for the
 twelfth time to continue the case until the following term,
 Barker's counsel filed a motion to dismiss the indictment. The
 motion to dismiss was denied two weeks later, and the
 Commonwealth's motion for a continuance was granted. The
 Commonwealth was granted further continuances in June 1962 and
 September 1962, to which Barker did not object.
 
      In February 1963, the first term of court following Manning's
 final conviction, the Commonwealth moved to set Barker's trial for
 March 19. But on the day scheduled for trial, it again moved for a
 continuance until the June term. It gave as its reason the illness


3
Page 518
 
 of the ex-sheriff who was the chief investigating officer in the
 case. To this continuance, Barker objected unsuccessfully.
 
      The witness was still unable to testify in June, and the
 trial, which had been set for June 19, was continued again until
 the September term over Barker's objection. This time the court
 announced that the case would be dismissed for lack of prosecution
 if it were not tried during the next term. The final trial date
 was set for October 9, 1963. On that date, Barker again moved to
 dismiss the indictment, and this time specified that his right to
 a speedy trial had been violated.5 The motion was denied; the
 trial commenced with Manning as the chief prosecution witness;
 Barker was convicted and given a life sentence.
 
      Barker appealed his conviction to the Kentucky Court of
 Appeals, relying in part on his speedy trial claim. The court
 affirmed. Barker v. Commonwealth, 385 S.W.2d 671 (1964). In
 February 1970 Barker petitioned for habeas corpus in the United
 States District Court for the Western District of Kentucky.
 Although the District Court rejected the petition without holding
 a hearing, the court granted petitioner leave to appeal in forma
 pauperis and a certificate of probable cause to appeal. On appeal,
 the Court of Appeals for the Sixth Circuit affirmed the District
 Court. 442 F.2d 1141 (1971). It ruled that Barker had waived his
 speedy trial claim for the entire period before February 1963, the
 date on which the court believed he had first objected to the
 delay by filing a motion to dismiss. In this belief the court was
 mistaken, for the record re-


4
Page 519
 
 veals that the motion was filed in February 1962. The Commonwealth
 so conceded at oral argument before this Court.6 The court held
 further that the remaining period after the date on which Barker
 first raised his claim and before his trial—which it thought was
 only eight months but which was actually 20 months—was not unduly
 long. In addition, the court held that Barker had shown no
 resulting prejudice, and that the illness of the exsheriff was a
 valid justification for the delay. We granted Barker's petition
 for certiorari. 404 U.S. 1037, 92 S.Ct. 719, 30 L.Ed.2d 729
 (1972).
 
                              II
 
      The right to a speedy trial is generically different from any
 of the other rights enshrined in the Constitution for the
 protection of the accused. In addition to the general concern that
 all accused persons be treated according to decent and fair
 procedures, there is a societal interest in providing a speedy
 trial which exists separate from, and at times in opposition to,
 the interests of the accused. The inability of courts to provide a
 prompt trial has contributed to a large backlog of cases in urban
 courts which, among other things, enables defendants to negotiate
 more effectively for pleas of guilty to lesser offenses and
 otherwise manipulate the system.7 In addition, persons released on
 bond for lengthy periods awaiting trial have an opportunity to
 commit other crimes.8 It must be of little comfort to the
 residents of Christian County, Kentucky, to know that Barker was
 at large on bail for over four years while accused of a vicious


5
Page 520
 
 and brutal murder of which he was ultimately convicted. Moreover,
 the longer an accused is free awaiting trial, the more tempting
 becomes his opportunity to jump bail and escape.9 Finally, delay
 between arrest and punishment may have a detrimental effect on
 rehabilitation.10
 
      If an accused cannot make bail, he is generally confined, as
 was Barker for 10 months, in a local jail. This contributes to the
 overcrowding and generally deplorable state of those
 institutions.11 Lengthy exposure to these conditions 'has a
 destructive effect on human character and makes the rehabilitation
 of the individual offender much more difficult.'12 At times the
 result may even be violent rioting.13 Finally, lengthy pretrial
 detention is costly. The cost of maintaining a prisoner in jail
 varies from $3 to $9 per day, and this amounts to millions across


6
Page 521
 
 the Nation.14 In addition, society loses wages which might have
 been earned, and it must often support families of incarcerated
 breadwinners.
 
      A second difference between the right to speedy trial and the
 accused's other constitutional rights is that deprivation of the
 right may work to the accused's advantage. Delay is not an
 uncommon defense tactic. As the time between the commission of the
 crime and trial lengthens, witnesses may become unavailable or
 their memories may fade. It the witnesses support the prosecution,
 its case will be weakened, sometimes seriously so. And it is the
 prosecution which carries the burden of proof. Thus, unlike the
 right to counsel or the right to be free from compelled
 self-in-crimination, deprivation of the right to speedy trial does
 not per se prejudice the accused's ability to defend himself.
 
      Finally, and perhaps most importantly, the right to speedy
 trial is a more vague concept than other procedural rights. It is,
 for example, impossible to determine with precision when the right
 has been denied. We cannot definitely say how long is too long in
 a system where justice is supposed to be swift but deliberate.15
 As a consequence, there is no fixed point in the criminal process
 when the State can put the defendant to the choice of either
 exercising or waiving the right to a speedy trial. If, for
 example, the State moves for


7
Page 522
 
 a 60-day continuance, granting that continuance is not a violation
 of the right to speedy trial unless the circumstances of the case
 are such that further delay would endanger the values the right
 protects. It is impossible to do more than generalize about when
 those circumstances exist. There is nothing comparable to the
 point in the process when a defendant exercises or waives his
 right to counsel or his right to a jury trial. Thus, as we
 recognized in Beavers v. Haubert, supra, any inquiry into a speedy
 trial claim necessitates a functional analysis of the right in the
 particular context of the case:
 
      'The right of a speedy trial is necessarily relative. It is
      consistent with delays and depends upon circumstances. It
      secures rights to a defendant. It does not preclude the
      rights of public justice.' 198 U.s., at 87, 25 S.Ct. at 576,
      49 L.Ed. 950.
 
      The amorphous quality of the right also leads to the
 unsatisfactorily severe remedy of dismissal of the indictment when
 the right has been deprived. This is indeed a serious consequence
 because it means that a defendant who may be guilty of a serious
 crime will go free, without having been tried. Such a remedy is
 more serious than an exclusionary rule or a reversal for a new
 trial,16 but it is the only possible remedy.
 
                              III
 
      Perhaps because the speedy trial right is so slippery, two
 rigid approaches are urged upon us as ways of eliminating some of
 the uncertainty which courts ex-


8
Page 523
 
 perience in protecting the right. The first suggestion is that we
 hold that the Constitution requires a criminal defendant to be
 offered a trial within a specified time period. The result of such
 a ruling would have the virtue of clarifying when the right is
 infringed and of simplifying courts' application of it.
 Recognizing this, some legislatures have enacted laws, and some
 courts have adopted procedural rules which more narrowly define
 the right.17 The United States Court of Appeals for the Second
 Circuit has promulgated rules for the district courts in that
 Circuit establishing that the government must be ready for trial
 within six months of the date of arrest, except in unusual
 circumstances, or the charge will be dismissed.18 This type of
 rule is also recommended by the American Bar Association.19
 
      But such a result would require this Court to engage in
 legislative or rulemaking activity, rather than in the
 adjudicative process to which we should confine our efforts. We do
 not establish procedural rules for the States, except when
 mandated by the Constitution. We find no constitutional basis for
 holding that the speedy trial right can be quantified into a
 specified number of days or months. The States, of course, are
 free to prescribe a reasonable period consistent with
 constitutional standards, but our approach must be less precise.
 
      The second suggested alternative would restrict con-


9
Page 524
 
 sideration of the right to those cases in which the accused has
 demanded a speedy trial. Most States have recognized what is
 loosely referred to as the 'demand rule,'20 although eight States
 reject it.21 It is not clear, however, precisely what is meant by
 that term. Although every federal court of appeals that has
 considered the question has endorsed some kind of demand rule,
 some have regarded the rule within the concept of waiver,22
 whereas others have viewed it as a factor to be weighed


10
Page 525
 
 in assessing whether there has been a deprivation of the speedy
 trial right.23 We shall refer to the former approach as the
 demand-waiver doctrine. The demandwaiver doctrine provides that a
 defendant waives any consideration of his right to speedy trial
 for any period prior to which he has not demanded a trial. Under
 this rigid approach, a prior demand is a necessary condition to
 the consideration of the speedy trial right. This essentially was
 the approach the Sixth Circuit took below.
 
      Such an approach, by presuming waiver of a fundamental
 right24 from inaction, is inconsistent with this Court's
 pronouncements on waiver of constitutional rights. The Court has
 defined waiver as 'an intentional relinquishment or abandonment of
 a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464,
 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Courts should 'indulge
 every reasonable presumption against waiver,' Aetna Ins. Co. v.
 Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177
 (1937), and they should 'not presume acqui-


11
Page 526
 
 escence in the loss of fundamental rights,' Ohio Bell Tel. Co. v.
 Public Utilities Comm'n, 301 U.S. 292, 307, 57 S.Ct. 724, 731, 81
 L.Ed. 1093 (1937). In Carnley v. Cochran, 369 U.S. 506, 82 S.Ct.
 884, 8 L.Ed.2d 70 (1962), we held:
 
 
 
      'Presuming waiver from a silent record is impermissible. The
      record must show, or there must be an allegation and evidence
      which show, that an accused was offered counsel but
      intelligently and understandably rejected the offer. Anything
      less is not waiver.' Id., at 516, 82 S.Ct., at 890.
 
      The Court has ruled similarly with respect to waiver of other
 rights designed to protect the accused. See, e.g., Miranda v.
 Arizona, 384 U.S. 436, 475—476, 86 S.Ct. 1602, 1628—1627, 16
 L.Ed.2d 694 (1966); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.
 1709, 23 L.Ed.2d 274 (1969).
 
      In excepting the right to speedy trial from the rule of
 waiver we have applied to other fundamental rights, courts that
 have applied the demand-waiver rule have relied on the assumption
 that delay usually works for the benefit of the accused and on the
 absence of any readily ascertainable time in the criminal process
 for a defendant to be given the choice of exercising or waiving
 his right. But it is not necessarily true that delay benefits the
 defendant. There are cases in which delay appreciably harms the
 defendant's ability to defend himself.25


12
Page 527
 
 Moreover, a defendant confined to jail prior to trial is obviously
 disadvantaged by delay as is a defendant released on bail but
 unable to lead a normal life because of community suspicion and
 his own anxiety.
 
      The nature of the speedy trial right does make it impossible
 to pinpoint a precise time in the process when the right must be
 asserted or waived, but that fact does not argue for placing the
 burden of protecting the right solely on defendants. A defendant
 has no duty to bring himself to trial;26 the State has that duty
 as well as the duty of insuring that the trial is consistent with
 due process.27 Moreover, for the reasons earlier expressed,
 society has a particular interest in bringing swift prosecutions,
 and society's representatives are the ones who should protect that
 interest.
 
      It is also noteworthy that such a rigid view of the
 demand-waiver rule places defense counsel in an awkward position.
 Unless he demands a trial early and often, he is in danger of
 frustrating his client's right. If counsel is willing to tolerate
 some delay because he finds it reasonable and helpful in preparing
 his own case, he may be unable to obtain a speedy trial for his
 client at the end of that time. Since under the demandwaiver rule
 no time


13
Page 528
 
 runs until the demand is made, the government will have whatever
 time is otherwise reasonabel to bring the defendant to trial after
 a demand has been made. Thus, if the first demand is made three
 months after arrest in a jurisdiction which prescribes a six-month
 rule, the prosecution will have a total of nine months—which may
 be wholly unreasonable under the circumstances. The result in
 practice is likely to be either an automatic, pro forma demand
 made immediately after appointment of counsel or delays which, but
 for the demand-waiver rule, would not be tolerated. Such a result
 is not consistent with the interests of defendants, society, or
 the Constitution.
 
      We reject, therefore, the rule that a defendant who fails to
 demand a speedy trial forever waives his right.28 This does not
 mean, however, that the defendant has no responsibility to assert
 his right.  We think the better rule is that the defendant's
 assertion of or failure to assert his right to a speedy trial is
 one of the factors to be considered in an inquiry into the
 deprivation of the right. Such a formulation avoids the rigidities
 of the demand-waiver rule and the resulting possible unfairness in
 its application. It allows the trial court


14
Page 529
 
 to exercise a judicial discretion based on the circumstances,
 including due consideration of any applicable formal procedural
 rule. It would permit, for example, a court to attach a different
 weight to a situation in which the defendant knowingly fails to
 object from a situation in which his attorney acquiesces in long
 delay without adequately informing his client, or from a situation
 in which no counsel is appointed. It would also allow a court to
 weigh the frequency and force of the objections as opposed to
 attaching significant weight to a purely pro forma objection.
 
      In ruling that a defendant has some responsibility to assert
 a speedy trial claim, we do not depart from out holdings in other
 cases concerning the waiver of fundamental rights, in which we
 have placed the entire responsibility on the prosecution to show
 that the claimed waiver was knowingly and voluntarily made. Such
 cases have involved rights which must be exercised or waived at a
 specific time or under clearly identifiable circumstances, such as
 the rights to plead not guilty, to demand a jury trial, to
 exercise the privilege against self-incrimination, and to have the
 assistance of counsel. We have shown above that the right to a
 speedy trial is unique in its uncertainty as to when and under
 what circumstances it must be asserted or may be deemed waived.
 But the rule we announce today, which comports with constitutional
 principles, places the primary burden on the courts and the
 prosecutors to assure that cases are brought to trial. We hardly
 need add that if delay is attributable to the defendant, then his
 waiver may be given effect under standard waiver doctrine, the
 demand rule aside.
 
      We, therefore, reject both of the inflexible approaches—the
 fixed-time period because it goes further than the Constitution
 requires; the demandwaiver rule because it is insensitive to a
 right which he have deemed


15
Page 530
 
 fundamental. The approach we accept is a balancing test, in which
 the conduct of both the prosecution and the defendant are
 weighed.29
 
                              IV
 
      A balancing test necessarily compels courts to approach
 speedy trial cases on an ad hoc basis. We can do little more than
 identify some of the factors which courts should assess in
 determining whether a particular defendant has been deprived of
 his right. Though some might express them in different ways, we
 identify four such factors: Length of delay, the reason for the
 delay, the defendant's assertion of his right, and prejudice to
 the defendant.30
 
      The length of the delay is to some extent a triggering
 mechanism. Until there is some delay which is presumptively
 prejudicial, there is no necessity for inquiry into the other
 factors that go into the balance. Nevertheless, because of the
 imprecision of the right to speedy trial, the length of delay that
 will provoke such an inquiry is necessarily dependent upon the
 pecu-


16
Page 531
 
 liar circumstances of the case.31 To take but one example, the
 delay that can be tolerated for an ordinary street crime is
 considerably less than for a serious, complex conspiracy charge.
 
      Closely related to length of delay is the reason the
 government assigns to justify the delay. Here, too, different
 weights should be assigned to different reasons. A deliberate
 attempt to delay the trial in order to hamper the defense should
 be weighted heavily against the government.32 A more neutral
 reason such as negligence or overcrowded courts should be weighted
 less heavily but nevertheless should be considered since the
 ultimate responsibility for such circumstances must rest with the
 government rather than with the defendant. Finally, a valid
 reason, such as a missing witness, should serve to justify
 appropriate delay.
 
      We have already discussed the third factor, the defendant's
 responsibility to assert his right. Whether and how a defendant
 asserts his right is closely related to the other factors we have
 mentioned. The strength of his efforts will be affected by the
 length of the delay, to some extent by the reason for the delay,
 and most particularly by the personal prejudice, which is not
 always readily identifiable, that he experiences. The more serious
 the deprivation, the more likely a defendant is to complain. The
 defendant's assertion of his speedy trial right, then, is entitled
 to strong evidentiary weight in determining


17
Page 532
 
  whether the defendant is being deprived of the right. We
 emphasize that failure to assert the right will make it difficult
 for a defendant to prove that he was denied a speedy trial.
 
      A fourth factor is prejudice to the defendant. Prejudice, of
 course, should be assessed in the light of the interests of
 defendants which the speedy trial right was designed to protect.
 This Court has identified three such interests: (i) to prevent
 oppressive pretrial incarceration; (ii) to minimize anxiety and
 concern of the accused; and (iii) to limit the possibility that
 the defense will be impaired.33 Of these, the most serious is the
 last, because the inability of a defendant adequately to prepare
 his case skews the fairness of the entire system. If witnesses die
 or disappear during a delay, the prejudice is obvious. There is
 also prejudice if defense witnesses are unable to recall
 accurately events of the distant past. Loss of memory, however, is
 not always reflected in the record because what has been forgotten
 can rarely be shown.
 
      We have discussed previously the societal disadvantages of
 lengthy pretrial incarceration, but obviously the disadvantages
 for the accused who cannot obtain his release are even more
 serious. The time spent in jail awaiting trial has a detrimental
 impact on the individual. It often means loss of a job; it
 disrupts family life; and it enforces idleness. Most jails offer
 little or no recreational or rehabilitative programs.34 The time
 spent in


18
Page 533
 
 jail is simply dead time. Moreover, if a defendant is locked up,
 he is hindered in his ability to gather evidence, contact
 witnesses, or otherwise prepare his defense.35 Imposing those
 consequences on anyone who has not yet been convicted is serious.
 It is especially unfortunate to impose them on those persons who
 are ultimately found to be innocent. Finally, even if an accused
 is not incarcerated prior to trial, he is still disadvantaged by
 restraints on his liberty and by living under a cloud of anxiety,
 suspicion, and often hostility. See cases cited in n. 33, supra.
 
      We regard none of the four factors identified above as either
 a necessary or sufficient condition to the finding of a
 deprivation of the right of speedy trial. Rather, they are related
 factors and must be considered together with such other
 circumstances as may be relevant. In sum, these factors have no
 talismanic qualities; courts must still engage in a difficult and
 sensitive balancing process.36 But, because we are dealing with a
 fundamental right of the accused, this process must be carried out
 with full recognition that the accused's interest in a speedy
 trial is specifically affirmed in the Constitution.
 
                               V
 
      The difficulty of the task of balancing these factors is
 illustrated by this case, which we consider to be close. It is
 clear that the length of delay between arrest and trial—well over
 five years—was extraordinary. Only


19
Page 534
 
 seven months of that period can be attributed to a strong excuse,
 the illness of the exsheriff who was in charge of the
 investigation. Perhaps some delay would have been permissible
 under ordinary circumstances, so that Manning could be utilized as
 a witness in Barker's trial, but more than four years was too long
 a period, particularly since a good part of that period was
 attributable to the Commonwealth's failure or inability to try
 Manning under circumstances that comported with due process.
 
      Two counterbalancing factors, however, outweigh these
 deficiencies. The first is that prejudice was minimal. Of course,
 Barker was prejudiced to some extent by living for over four years
 under a cloud of suspicion and anxiety. Moreover, although he was
 released on bond for most of the period, he did spend 10 months in
 jail before trial. But there is no claim that any of Barker's
 witnesses died or otherwise became unavailable owing to the delay.
 The trial transcript indicates only two very minor lapses of
 memory—one on the part of a prosecution witness—which were in no
 way significant to the outcome.
 
      More important than the absence of serious prejudice, is the
 fact that Barker did not want a speedy trial. Counsel was
 appointed for Barker immediately after his indictment and
 represented him throughout the period. No question is raised as to
 the competency of such counsel.37 Despite the fact that counsel
 had notice of the motions for continuances,38 the record shows no
 action whatever taken between October 21, 1958, and February 12,
 1962, that could be construed as the assertion of the speedy trial
 right. On the latter date, in response to another motion for
 continuance, Barker moved


20
Page 535
 
 to dismiss the indictment. The record does not show on what ground
 this motion was based, although it is clear that no alternative
 motion was made for an immediate trial. Instead the record
 strongly suggests that while he hoped to take advantage of the
 delay in which he had acquiesced, and thereby obtain a dismissal
 of the charges, he definitely did not want to be tried. Counsel
 conceded as much at oral argument:
 
      'Your honor, I would concede that Willie Mae Barker probably
      I don't know this for a fact—probably did not want to be
      tried. I don't think any man wants to be tried. And I don't
      consider this a liability on his behalf. I don't blame him.'
      Tr. of Oral Arg. 39.
 
      The probable reason for Barker's attitude was that he was
 gambling on Manning's acquittal. The evidence was not very strong
 against Manning, as the reversals and hung juries suggest, and
 Barker undoubtedly thought that if Manning were acquitted, he
 would never be tried. Counsel also conceded this:
 
      'Now, it's true that the reason for this delay was the
      Commonwealth of Kentucky's desire to secure the testimony of
      the accomplice, Silas Manning. And it's true that if Silas
      Manning were never convicted, Willie Mae Barker would never
      have been convicted. We concede this. Id., at 15.39


21
Page 536
 
      That Barker was gambling on Manning's acquittal is also
 suggested by his failure, following the pro forma motion to
 dismiss filed in February 1962, to object to the Commonwealth's
 next two motions for continuances. Indeed, it was not until March
 1963, after Manning's convictions were final, that Barker, having
 lost his gamble, began to object to further continuances. At that
 time, the Commonwealth's excuse was the illness of the ex-sheriff,
 which Barker has conceded justified the further delay.40
 
      We do not hold that there may never be a situation in which
 an indictment may be dismissed on speedy trial grounds where the
 defendant has failed to object to continuances. There may be a
 situation in which the defendant was represented by incompetent
 counsel, was severely prejudiced, or even cases in which the
 continuances were granted ex parte. But barring extraordinary
 circumstances, we would be reluctant indeed to rule that a
 defendant was denied this constitutional right on a record that
 strongly indicates, as does this one, that the defendant did not
 want a speedy trial. We hold, therefore, that Barker was not
 deprived of his due process right to a speedy trial.
 
      The judgment of the Court of Appeals is affirmed.
 
      Affirmed.
 
 djQ  Mr. Justice WHITE, with whom Mr. Justice BRENNAN joins,
 concurring.
 
      Although the Court rejects petitioner's speedy trial claim
 and affirms denial of his petition for habeas corpus,


22
Page 537
 
 it is apparent that had Barker not so clearly acquiesced in the
 major delays involved in this case, the result would have been
 otherwise. From the Commonwealth's point of view, it is fortunate
 that the case was set for early trial and that postponements took
 place only upon formal requests to which Barker had opportunity to
 object.
 
      Because the Court broadly assays the factors going into
 constitutional judgments under the speedy trial provision, it is
 appropriate to emphasize that one of the major purposes of the
 provision is to guard against inordinate delay between public
 charge and trial, which, wholly aside from possible prejudice to a
 defense on the merits, may 'seriously interfere with the
 defendant's liberty, whether he is free on bail or not, and that
 may disrupt his employment, drain his financial resources, curtail
 his associations, subject him to public obloquy, and create
 anxiety in him, his family and his friends.' United States v.
 Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468
 (1971). These factors are more serious for some than for others,
 but they are inevitably present in every case to some extent, for
 every defendant will either be incarcerated pending trial or on
 bail subject to substantial restrictions on his liberty. It is
 also true that many defendants will believe that time is on their
 side and will prefer to suffer whatever disadvantages delay may
 entail. But, for those who desire an early trial, these personal
 factors should prevail if the only countervailing considerations
 offered by the State are those connected with crowded dockets and
 prosecutorial case loads. A defendant desiring a speedy trial,
 therefore, should have it within some reasonable time; and only
 special circumstances presenting a more pressing public need with
 respect to the case itself should suffice to justify delay. Only
 if such special considerations are in the case and if they
 outweigh the inevitable personal prejudice resulting from delay
 would


23
Page 538
 
 it be necessary to consider whether there has been or would be
 prejudice to the defense at trial. '(T)he major evils protected
 against by the speedy trial guarantee exist quite apart from
 actual or possible prejudice to an accused's defense.' United
 States v. Marion, supra, at 320, 92 S.Ct., at 963.
 
      Of course, cases will differ among themselves as to the
 allowable time between charge and trial so as to permit
 prosecution and defense adequately to prepare their case. But
 unreasonable delay in run-of-the-mill criminal cases cannot be
 justified by simply asserting that the public resources provided
 by the State's criminal-justice system are limited and that each
 case must await its turn. As the Court points out, this approach
 also subverts the State's own goals in seeking to enforce its
 criminal laws.



1
 The Sixth Amendment provides:
 
      'In all criminal prosecutions, the accused shall enjoy the
 right to a speedy and public trial, by an impartial jury of the
 State and district wherein the crime shall have been committed,
 which district shall have been previously ascertained by law, and
 to be informed of the nature and cause of the accusation; to be
 confronted with the witnesses against him; to have compulsory
 process for obtaining Witnesses in his favor, and to have the
 Assistance of Counsel for his defense.'2.'We hold here that the right to a speedy trial is as
 fundamental as any of the rights secured by the Sixth Amendment.'
 386 U.S., at 223, 87 S.Ct., at 993.


3
 There is no explanation in the record why, although
 Barker's initial trial was set for October 21, no continuance was
 sought until October 23, two days after trial should have begun.


4
 Apparently Manning chose not to appeal these final two
 convictions.


5
 The written motion Barker filed alleged that he had
 objected to every continuance since February 1959. The record does
 not reflect any objections until the motion to dismiss, filed in
 February 1962, and the objections to the continuances sought by
 the Commonwealth in March 1963 and June 1963.


6
 Tr. of Oral Arg. 33.7 Report of the President's Commission on Crime in the
 District of Columbia 256 (1966).8 In Washington, D.C., in 1968, 70.1% of the persons
 arrested for robbery and released prior to trial were re-arrested
 while on bail. Mitchell, Bail Reform and the Constitutionality of
 Pretrial Detention, 55 Va.L.Rev. 1223, 1236 (1969), citing Report
 of the Judicial Council Committee to Study the Operation of the
 Bail Reform Act in the District of Columbia 20—21 (1969).


9
 The number of these offenses has been increasing. See
 Annual Report of the Director of the Administrative Office of the
 United States Courts, 1971, p. 321.10 '(I)t is desirable that punishment should follow offence
 as closely as possible; for its impression upon the minds of men
 is weakened by distance, and, besides, distance adds to the
 uncertainty of punishment, by affording new chances of escape.' J.
 Bentham, The Theory of Legislation 326 (Ogden ed. 1931).11 To Establish Justice, To Insure Domestic Tranquility,
 Final Report of the National Commission on the Causes and
 Prevention of Violence 152 (1969).12 Testimony of James V. Bennett, Director, Bureau of
 Prisons, Hearings on Federal Bail Procedures before the
 Subcommittee on Constitutional Rights and the Subcommittee on
 Improvements in Judicial Machinery of the Senate Committee on the
 Judiciary, 88th Cong., 2d Sess., 46 (1964).13 E.g., the 'Tombs' riots in New York City in 1970. N.Y.
 Times, Oct. 3, 1970, p. 1, col. 8.


14
 The Challenge of Crime in a Free Society, A Report by the
 President's Commission on Law Enforcement and Administration of
 Justice 131 (1967).15 '(I)n large measure because of the many procedural
 safeguards provided an accused, the ordinary procedures for
 criminal prosecution are designed to move at a deliberate pace. A
 requirement of unreasonable speed would have a deleterious effect
 both upon the rights of the accused and upon the ability of
 society to protect itself.' United States v. Ewell, 383 U.S. 116,
 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966).


16
 Mr. Justice White noted in his opinion for the Court in
 Ewell, supra, 383 U.S., at 121, 86 S.Ct., at 777, that overzealous
 application of this remedy would infringe 'the societal interest
 in trying people accused of crime, rather than granting them
 immunization because of legal error. ..'


17
 For examples, see American Bar Association Project on
 Standards for Criminal Justice, Speedy Trial 14—16 (Approved Draft
 1968); Note, The Right to a Speedy Criminal Trial, 57 Col.L.Rev.
 846, 863 (1957).18 Second Circuit Rules Regarding Prompt Disposition of
 Criminal Cases (1971).19 ABA Project, supra, n. 17, at 14. For an example of a
 proposed statutory rule, see Note, The Lagging Right to a Speedy
 Trial, 51 Va.L.Rev. 1587, 1619, (1965).


20
 E.g., Pines v. District Court of Woodbury County, 233
 Iowa 1284, 10 N.W.2d 574 (1943). See generally Note, The Right to
 a Speedy (Criminal Trial, 57 Col.L.Rev. 846, 853 (1957); Note, The
 Lagging Right to a Speedy Trial, 51 Va.L.Rev. 1587, 1601—1602
 (1965).21 See State v. Maldonado, 92 Ariz. 70, 373 P.2d 583 (en
 banc), cert. denied, 371 U.S. 928, 83 S.Ct. 299, 9 L.Ed.2d 236
 (1962); Hicks v. People, 148 Colo. 26, 364 P.2d 877 (1961) (en
 banc); People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891 (1955);
 Zehrlaut v. State, 230 Ind. 175, 102 N.E.2d 203 (1951); Flanary v.
 Commonwealth, 184 Va. 204, 35 S.E.2d 135 (1945); Ex parte
 Chalfant, 81 W.Va. 93, 93 S.E. 1032 (1917); State v. Hess, 180
 Kan. 472, 304 P.2d 474 (1956); State v. Dodson, 226 Or. 458, 360
 P.2d 782 (1961). But see State v. Vawter, 236 Or. 85, 386 P.2d 915
 (1963).22 See United States v. Hill, 310 F.2d 601 (CA4 1962); Bruce
 v. United States, 351 F.2d 318 (CA5 1965), cert. denied, 384 U.S.
 921, 86 S.Ct. 1370, 16 L.Ed.2d 553 (1966); United States v. Perez,
 398 F.2d 658 (CA7 1968), cert. denied, 393 U.S. 1080, 89 S.Ct.
 851, 21 L.Ed.2d 772 (1969); Pietch v. United States, 110 F.2d 817
 (CA10), cert. denied, 310 U.S. 648, 60 S.Ct. 1100, 84 L.Ed. 1414
 (1940); Smith v. United States, 118 U.S.App.D.C. 38, 331 F.2d 784
 (1964) (en banc). The opinion below in this case demonstrates that
 the Sixth Circuit Takes a similar approach.
 
      'As an indication of the importance which these courts have
 attached to the demand rule, see Perez, supra, in which the court
 held that a defendant waived any speedy trial claim, because he
 knew of an indictment and made no demand for an immediate trial,
 even though the record gave no indication that he was represented
 by counsel at the time when he should have made his demand, and
 even though he was not informed by th court or the prosecution of
 his right to a speedy trial.


23
 Although stating that they recognize a demand rule, the
 approach of the Eighth and Ninth Circuits seems to be that a
 denial of speedy trial can be found despite an absence of a demand
 under some circumstances. See Bandy v. United States, 408 F.2d 518
 (CA8 1969) (a purposeful or oppressive delay may overcome a
 failure to demand); Moser v. United States, 381 F.2d 363 (CA9
 1967) (despite a failure to demand, the court balanced other
 considerations).
 
      The Second Circuit's approach is unclear. There are cases in
 which a failure to demand is strictly construed as a waiver. E.g.,
 United States v. DeMasi, 445 F.2d 251 (1971). In other cases, the
 court has seemed to be willing to consider claims in which there
 was no demand. E.g., United States ex rel. Solomon v. Mancusi, 412
 F.2d 88, cert. denied, 396 U.S. 936, 90 S.Ct. 269, 24 L.Ed.2d 236
 (1969). Certainly the District Courts in the Second Circuit have
 not regarded the demand rule as being rigid. See United States v.
 Mann, 291 F.Supp. 268 (SDNY 1968); United States v. Dillon, 183
 F.Supp. 541 (SDNY 1960).
 
      The First Circuit also seems to reject the more rigid
 approach. Compare United States v. Butler, 426 F.2d 1275 (1970),
 with Needel v. Scafati, 412 F.2d 761, cert. denied, 396 U.S. 861,
 90 S.Ct. 133, 24 L.Ed.2d 113 (1969).24 See n. 2, supra.


25
 'If a defendant deliberately by-passes state procedure
 for some strategic, tactical, or other reason, a federal judge on
 habeas corpus may deny relief if he finds that the by-passing was
 the considered choice of the petitioner. The demand doctrine
 presupposes that failure to demand trial is a deliberate choice
 for supposed advantage on the assumption that delay always
 benefits the accused, but the delay does not inherently benefit
 the accused any more than it does the state. Consequently, a man
 should not be presumed to have exercised a deliberate choice
 because of silence or inaction that could equally mean that he is
 unaware of the necessity for a demand.' Note, The Lagging Right to
 a Speedy Trial, 51 Va.L.Rev. 1587, 1610 (1965) (footnotes
 omitted).


26
 As Mr. Chief Justice Burger wrote for the Court in Dickey
 v. Florida:
 
      'Although a great many accused persons seek to put off the
 confrontation as long as possible, the right to a prompt inquiry
 into criminal charges is fundamental and the duty of the charging
 authority is to provide a prompt trial.' 398 U.S. 30, 37—38, 90
 S.Ct. 1564, 1569, 26 L.Ed.2d 26 (footnote omitted).27 As a circuit judge, Mr. Justice Blackmun wrote:
 
      'The government and, for that matter, the trial court are not
 without responsibility for the expeditious trial of criminal
 cases. The burden for trial promptness is not solely upon the
 defense. The right to 'a speedy . . . trial's is constitutionally
 guaranteed and, as such, is not to be honored only for the
 vigilant and the knowledgeable.' Hodges v. United States, 408 F.2d
 543, 551 (CA8 1969).


28
 The American Bar Association also rejects the rigid
 demand-waiver rule:
 
      'One reason for this position is that there are a number of
 situations, such as where the defendant is unaware of the charge
 or where the defendant is without counsel, in which it is unfair
 to require a demand . . . Jurisdictions with a demand requirement
 are faced with the continuing problem of defining exceptions, a
 process which has not always been carried out with uniformity . .
 . More important, the demand requirement is inconsistent with the
 public interest in prompt disposition of criminal cases. . . .
 (T)he trial of a criminal case should not be unreasonably delayed
 merely because the defendant does not think that it is in his best
 interest to seek prompt disposition of the charge.' ABA Project,
 supra, n. 17, at 17.


29
 Nothing we have said should be interpreted as
 disapproving a presumptive rule adopted by a court in the exercise
 of its supervisory powers which establishes a fixed time period
 within which cases must normally be brought. See n. 18, supra.30 See, e.g., United States v. Simmons, 338 F.2d 804, 807
 (CA2 1964), cert. denied, 380 U.S. 983, 85 S.Ct. 1352, 14 L.Ed.2d
 276 (1965); Note, The Right to a Speedy Trial, 20 Stan.L.Rev. 476,
 478 n. 15 (1968).
 
      In his concurring opinion in Dickey, Mr. Justice Brennan
 identified three factors for consideration: the source of the
 delay, the reasons for it, and whether the delay prejudiced the
 interests protected by the right. 398 U.S., at 48, 90 S.Ct., at
 1574. He included consideration of the defendant's failure to
 assert his right in the cause-of-delay category, and he thought
 the length of delay was relevant primarily to the reasons for
 delay and its prejudicial effects. Id., n. 12. In essence,
 however, there is little difference between his approach and the
 one we adopt today. See also Note, The Right to a Speedy Trial,
 supra, for another slightly different approach.


31
 For example, the First Circuit thought a delay of nine
 months overly long, absent a good reason, in a case that depended
 on eyewitness testimony. United States v. Butler, 426 F.2d 1275,
 1277 (1970).32 We have indicated on previous occasions that it is
 improper for the prosecution intentionally to delay 'to gain some
 tactical advantage over (defendants) or to harass them.' United
 States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 466, 30 L.Ed.2d
 468 (1971). See Pollard v. United States, 352 U.S. 354, 361, 77
 S.Ct. 481, 485—486, 1 L.Ed.2d 393 (1957).


33
 United States v. Ewell, 383 U.S., at 120, 86 S.Ct., at
 776; Smith v. Hooey, 393 U.S. 374, 377—378, 89 S.Ct. 575, 576—577,
 21 L.Ed.2d 607 (1969). In Klopfer v. North Carolina, 386 U.S. 213,
 221—222, 87 S.Ct. 988, 992—993, 18 L.Ed.2d 1 (1967), we indicated
 that a defendant awaiting trial on bond might be subjected to
 public scorn, deprived of employment, and chilled in the exercise
 of his right to speak for, associate with, and participate in
 unpopular political causes.34 See To Establish Justice, To Insure Domestic Tranquility,
 Final Report of the National Commission on the Causes and
 Prevention of Violence 152 (1969).


35
 There is statistical evidence that persons who are
 detained between arrest and trial are more likely to receive
 prison sentences than those who obtain pretrial release, although
 other factors bear upon this correlation. See Wald, Pretrial
 Detention and Ultimate Freedom: A Statistrical Study, 39
 N.Y.U.L.Rev. 631 (1964).36 For an example of how the speedy trial issue should be
 approached, see Judge Frankel's excellent opinion in United States
 v. Mann, 291 F.Supp. 268 (SDNY 1968).


37
 Tr. of Oral Arg. 39.38 Id., at 4.


39
 Hindsight is, of course, 20/20, but we cannot help noting
 that if Barker had moved immediately and persistently for a speedy
 trial following indictment, and if he had been successful, he
 would have undoubtedly been acquitted since Manning's testimony
 was crucial to the Cmmonwealth's case. It could not have been
 anticipated at the outset, however, that Manning would have been
 tried six times over a four-year period. Thus, the decision to
 gamble on Manning's acquittal may have been a prudent choice at
 the time it was made.


40
 At oral argument, counsel for Barker stated:
 
      'That was after the sheriff, the material witness, was ill;
 the man who had arrested the petitioner, yes. And the Sixth
 Circuit held that this was a sufficient reason for delay, and we
 don't deny this. We concede that this was sufficient for the delay
 from March 1963 to October, but it does not explain the delays
 prior to that.' Tr. of Oral Arg. 19—20.


