How Long Can Someone Stay in Jail Awaiting Trial?

Under the federal Speedy Trial Act, a criminal trial must begin within 70 days of the indictment or the defendant’s first court appearance, whichever comes later, and state deadlines run anywhere from about 30 days for some misdemeanors to six months or longer for felonies. So the short answer to how long someone can stay in jail awaiting trial is: usually not more than a few months on paper, but often much longer in practice. The reason for that gap is that both systems allow long stretches of time to be excluded from the countdown, and defendants themselves often ask for more time to prepare.

The First 48 Hours After Arrest

Two clocks start running the moment police make a warrantless arrest. The Fourth Amendment requires a judge or magistrate to confirm there was probable cause for the arrest, and the Supreme Court set the outside limit at 48 hours in County of Riverside v. McLaughlin (1991).¹ If the government misses that mark, it has to prove an emergency. Weekends and administrative convenience do not qualify.

Federal Rule of Criminal Procedure 5 separately requires that anyone arrested be brought before a magistrate judge “without unnecessary delay.”² At that initial appearance, the judge reads the charges, explains the right to counsel, and makes the first decision about bail or detention. State rules impose similar requirements with different wording.

The Federal 70-Day Deadline

The Speedy Trial Act of 1974 sets two hard numbers in federal cases. After arrest, the government has 30 days to file an indictment or information. Once charges are filed, trial must begin within 70 days of either the filing or the defendant’s first appearance, whichever is later.³ In a clean case with no excluded time, that puts the outer boundary from arrest to trial at roughly 100 days.

Very few federal cases actually run that fast. The statute contains a long list of excludable delays, and most cases accumulate weeks or months of paused time before trial.

State Deadlines

Most criminal cases move through state courts, where deadlines vary widely. Felony defendants held in custody are usually entitled to trial somewhere between 60 days and six months after the clock starts. Misdemeanor deadlines are shorter, typically 30 to 90 days. Some states use statutes, some use court rules, and some rely mostly on constitutional case law rather than a fixed number.

The trigger point matters as much as the length. In some states the clock starts at arrest; in others, at the filing of charges or the first court appearance. If it starts at filing, a defendant can sit in jail for weeks before the speedy trial period even begins. And like the federal system, every state allows certain categories of delay to be excluded.

The Sixth Amendment Backstop

Behind the statutes sits the Sixth Amendment, which guarantees the right to a speedy and public trial.⁴ The constitutional right has no fixed number of days attached. In Barker v. Wingo (1972), the Supreme Court laid out a four-factor balancing test: the length of the delay, the reason for it, whether the defendant asserted the right, and whether the delay actually prejudiced the defense.⁵

The third factor catches people off guard. Barker made clear that “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.”⁵ Sitting quietly in jail is not a strategy. A defendant who wants to preserve the constitutional right has to affirmatively raise it on the record, through counsel, as the delay accumulates.

What Pauses the Clock

The 70-day federal deadline is not a continuous countdown, and neither is any state equivalent. Certain categories of delay are “excludable,” meaning they do not count. These carve-outs are why pretrial detention often runs so much longer than the raw statutory number suggests.

Pretrial Motions

Every pretrial motion filed by either side stops the clock from the date of filing until the court rules. Motions to suppress evidence, challenge the indictment, or compel discovery all pause the countdown, and complex cases with multiple rounds of motions can add months on that basis alone.³ Time spent considering a plea agreement is also excluded, as is up to 30 days while a ruling is under advisement.

Competency Evaluations and Unavailable Witnesses

Time spent on psychological evaluations of the defendant’s competency to stand trial is excluded, as is any period when the defendant is physically unable to participate. If a key witness for either side is unavailable and that absence is not the government’s fault, the resulting delay does not count.³

Codefendants and Transfers

When a defendant is joined for trial with a codefendant whose own clock has not run, the resulting delay is excluded as long as no severance has been granted. Transportation between districts and case transfers between jurisdictions are also excluded, though transportation delays over ten days are presumed unreasonable.³

Ends-of-Justice Continuances

A judge can grant additional time if the “ends of justice” outweigh the defendant’s and public’s interest in a speedy trial. This is the broadest and most commonly used exclusion. The judge must state reasons on the record and may consider whether denying the continuance would cause a miscarriage of justice, whether the case is unusually complex, and whether counsel needs more preparation time. The statute specifically bars using general court congestion or the prosecution’s lack of diligent preparation as grounds.³

Court Backlogs and Lab Delays

Under the federal statute, general calendar congestion cannot support an ends-of-justice continuance, but courts treat congestion differently under the constitutional analysis. The Supreme Court has called court congestion a “neutral reason” that weighs against the government less heavily than deliberate delay but still weighs against it, because “the ultimate responsibility for such circumstances must rest with the government.”⁶ Delays caused by backlogged crime labs are analyzed the same way.

When There Is No Bail at All

The speedy trial clock keeps running whether a defendant is in jail or out on bail, but for people held without release, the calendar is the whole story. The Eighth Amendment prohibits “excessive bail,” meaning bail higher than reasonably necessary to ensure appearance.⁷ Bail is not, however, guaranteed.

Under the federal Bail Reform Act, a judge can order pretrial detention with no bail if the government shows that no combination of release conditions will reasonably assure the defendant’s appearance and the safety of the community.⁸ Detention hearings are triggered in specific categories: crimes of violence, offenses carrying possible life or death sentences, serious drug trafficking charges with ten years or more of exposure, and felonies involving firearms or minor victims. In drug trafficking and certain other serious offenses, a rebuttable presumption of detention applies.

When release is possible, the judge weighs the nature of the offense, the weight of the evidence, and the defendant’s history including family ties, employment, criminal record, and substance abuse. The court can impose conditions short of cash bail: drug testing, electronic monitoring, curfews, travel restrictions, no-contact orders, or check-ins with a pretrial services officer.⁹ The statutory goal is the least restrictive conditions necessary.

Why Defendants Often Waive the Deadline

Defense attorneys frequently ask clients to waive the speedy trial deadline, and there is a real reason for it. In complex felony cases, 70 days is nowhere near enough to review discovery, interview witnesses, hire experts, and build a defense. Rushing to trial inside the statutory window can be more dangerous than posting bail and preparing from the outside, or even than staying in jail longer.

A waiver has to be knowing and voluntary. In practice, the defense asks for a continuance, the judge finds the ends of justice justify the extra time, and the court excludes that period from the calculation.³ A waiver is not all-or-nothing. Counsel can request a specific 30- or 60-day continuance for a defined purpose rather than an indefinite waiver of the entire right, which keeps pressure on the government while leaving room to prepare.

What Happens If the Deadline Is Missed

When the clock runs out with no excludable time to account for the gap, the remedy is dismissal. How that dismissal works depends on whether the violation is statutory or constitutional.

Dismissal Under the Speedy Trial Act

If the 70-day federal deadline expires, the defendant must file a motion to dismiss. Waiting until after a guilty plea or verdict waives the right entirely. The judge then decides whether to dismiss “with prejudice” (permanently) or “without prejudice” (allowing the government to refile). Courts weigh the seriousness of the offense, the reasons for the delay, and whether refiling would undermine the administration of justice.¹⁰ A minor possession case blown by a missed filing is more likely to be dismissed with prejudice than a violent felony delayed by a genuine logistical problem.

Constitutional Dismissal

A Sixth Amendment violation carries a harsher consequence. In Strunk v. United States (1973), the Supreme Court held that dismissal is the only possible remedy for a constitutional violation, and it is permanent. The government cannot refile the same charges. The bar for proving a constitutional violation is higher, though: the defendant has to show the Barker factors weigh in their favor, including actual prejudice such as lost evidence or faded witness memory.⁵ Most speedy trial wins come under the statute, but the constitutional claim matters when the statutory deadline was technically met through exclusions and the total time was still unreasonable.

Suing for Over-Detention

Beyond dismissal, someone held past legal limits may have a claim under 42 U.S.C. § 1983, the federal civil rights statute. A Section 1983 claim requires showing that a person acting under state authority deprived the plaintiff of a constitutional right. Holding someone without a timely probable cause hearing, past a court-ordered release date, or in conditions that violate due process can all support a suit for damages. These are separate civil actions, not part of the criminal case.

Credit for Time Served If Convicted

If pretrial detention ends in a conviction and prison sentence, every day spent in jail before sentencing counts toward the final term. Federal law requires credit for “any time he has spent in official detention prior to the date the sentence commences” as a result of the offense or a related arrest, as long as that time has not already been credited against another sentence.¹¹ Most states follow a similar rule.

In practice, six months of pretrial detention against a two-year sentence leaves 18 months to serve. If the eventual sentence is equal to or shorter than the pretrial jail time, the credit can produce immediate release at sentencing. The Bureau of Prisons calculates federal credit; state sentencing courts or corrections departments handle it in state cases. Errors are not rare, so verify the math independently with your attorney.

1
Cornell Law School. County of Riverside v. McLaughlin, 500 US 44 (1991)
2
Cornell Law School. Federal Rules of Criminal Procedure – Rule 5 Initial Appearance
3
Office of the Law Revision Counsel. 18 USC 3161 – Time Limits and Exclusions
4
Cornell Law School. Sixth Amendment
5
Justia Law. Barker v Wingo, 407 US 514 (1972)
6
Cornell Law School. Reason for Delay and Right to a Speedy Trial
7
Library of Congress. US Constitution – Eighth Amendment
8
Office of the Law Revision Counsel. 18 US Code 3142 – Release or Detention of a Defendant Pending Trial
9
United States Courts. Pretrial Services
10
Office of the Law Revision Counsel. 18 USC 3162 – Sanctions
11
Office of the Law Revision Counsel. 18 US Code 3585 – Calculation of a Term of Imprisonment