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The defendant may assert the right by clear and unambiguous communications to the court or prosecution seeking a speedy trial. Furthermore, the court may construe a failure to assert the right as an indication that the defendant suffered no prejudice from the delay.
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A failure to assert the right may be viewed as the defendant not having the desire for a speedy trial, but rather no trial. To claim a deprivation of a speedy trial right, the defendant must have asserted his right to a speedy trial. Defendant’s Burden: Assertion of the Right & Prejudice to His Case If a majority of the factors weigh in favor of the defendant, the court may find that his right has been violated and his charges may be dismissed. The court will evaluate the factors, separately and together, to determine whether they weigh in favor of the state or the defendant. Of the four factors, the state bears the burden with regards to the first two factors and the defendant bears the burden of proving the other two factors. Whether the delay resulted in prejudice to the accused.Whether the accused asserted his right and.Whether the reason for the delay was justified.
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The “silver lining” of this game is that the defendant’s charges may be fully dismissed if the court finds the accused was deprived of his or her right to a speedy trial. During this waiting game, evidence may get lost and witnesses may disappear, resulting in a weakened defense for the defendant. But neither source, nor Texas law, defines “speedy.” That means once a person is accused - either by being arrested or charged - he or she could wait months or even years before being brought to trial. Under the federal constitution and the Texas constitution, the accused in a criminal prosecution is guaranteed the right to a speedy trial.