The Purpose Of A Serna Motion

The right to a speedy trial is guaranteed under the federal and state constitution.  If a defendant has been denied a right to a speedy trial, then the defendant’s attorney can file a Serna Motion asking that the charges against the defendant be dismissed1.

Purpose of Speedy Trial Rights

The purpose in ensuring a defendant’s right to have a speedy trial is that he/she may be prejudiced in presenting a defense since witness recollections fade over time or witnesses disappear or pass away and evidence can be lost or destroyed.

Generally, the delay in having a trial must be a significant one and not caused by any conduct of the defendant such as a defendant who fled the state to escape prosecution or who intentionally ignored a notice of a court date. It also must have actually prejudiced the defendant if the delay was more than an year in a felony case.

In California, you have a right to a trial in a misdemeanor case within 45 days after being charged if you are not in custody and 30 days if you are2. If charged with a felony, you have a right to a trial within 60 days.

Constitutional Right To A Speedy Trial

Every criminal defendant has a 6th Amendment right to a speedy trial. This right is also guaranteed in the California Constitution as embodied in Article 1, Section 15.

However, there are different standards for determining if a defendant’s right to a speedy trial has been violated depending on whether the federal or state constitution applies. However, your defense attorney can assert both provisions in a Serna Motion unless you are solely charged with a federal crime.

Determination of 6th Amendment Violation of Speedy Trial Right

When Right To Speedy Trial Begins

As indicated above, your defense attorney can base a Serna Motion on both the federal and state constitutions guarantee of a speedy trial. Your 6th Amendment right to a speedy trial begins when:

  • You are arrested3
  • A holding order is issued following a preliminary hearing
  • An indictment or information is filed4.

A complaint that is issued in a felony case does not trigger your 6th Amendment right to a speedy trial if based on the federal constitution5.


When examining the motion under the 6th Amendment6, the court looks at:

  • Length of the delay
  • Justification for delay by the prosecution
  • If the defendant asserted his right in a timely fashion
  • If prejudice resulted that would affect your defense
Duration of Delay

Obviously, the longer the time between your arrest, indictment or information or holding order is issued and your being brought to trial, the more likely you will prevail.

Justification For Delay

There are numerous reasons for why a trial is delayed. A common one is that a key witness will be or was unavailable7.

If the delay is about one year or slightly longer, it is more likely the court will accept the delay as reasonable. If a witness disappeared but was found, a court may want to know what efforts were made to locate the witness.

But if the delay was to hinder the defense, then it is unlikely the delay will be construed as reasonable.

One example of an unjustified delay may be a clerical error in not sending out a notice of court date to the defendant. If a misdemeanor and one year has passed, the defendant is presumed to be prejudiced.

If it is less, then the defendant must show actual prejudice in forming a defense because of the delay. Another is the issuance of a bench warrant that has been outstanding for years.

However, if the defendant was aware that charges were to be filed or had a court date and fled the jurisdiction, then a Serna Motion is likely to fail.

Prejudice To Defendant

An essential element in this determination is if the delay was prejudicial to the defendant. In misdemeanor cases, a delay of one year is presumed prejudicial to the defense8. A defendant can also argue that in the interim:

  • He experienced extreme anxiety–will likely need verification from a medical or psychological source
  • He was incarcerated for nearly a year
  • His own defense has been prejudiced by the prosecution’s delay because his witnesses have moved away, cannot be located, passed away or no longer have a clear memory of what occurred

Determination of Speedy Trial Right Under State Constitution

Under Article 1, Section 15 of the California Constitution, your right to a speedy trial begins:

  • The date the complaint or other charging document was filed
  • Your arrest–so long as you were detained

Under the California Constitution, a judge will look at these factors in deciding whether your right has been violated:

  • If you experienced actual prejudice from the delay
  • If the prosecution has a plausible or reasonable justification for the delay

Simply because your trial was delayed for a year or more does not automatically guarantee that this is violation of your right to a speedy trial. There must be actual and demonstrable prejudice to you.

Your defense attorney can provide affidavits to the court from witnesses who can assert under oath that they no longer vividly recall the events on the day of the crime or that your attorney has made good faith efforts to locate witnesses who have disappeared. If a key witness has died in the interim or become incapacitated and unable to testify, then actual prejudice may be shown.

If you are asserting that a witness’ recollection has faded, then your attorney may want to attempt to refresh the witness’ recollection. If the witness gave a prior statement that was given to the witness to review but which did not refresh his/her recollection, then this is a much stronger argument that your defense has been profoundly prejudiced by the delay.

What is Waiving Time?

You have a right to a trial in a misdemeanor case within 45 days if out of custody; otherwise, it is 30 days. Felony trials are scheduled within 60 days. You do have a right to waive your right to a speedy trial at your arraignment.

If you do not waive time and your trial is continued, you do not necessarily have a valid argument for a Serna Motion since the delay is often for a few weeks or months and justified by lack of judges, courtroom unavailability, illness of the prosecutor or other reasonable justifications.

When Should Defendants Waive Time?

It is a strategic decision in whether to waive time or not. Many defense lawyers need a great deal of time to mount an adequate defense, especially in homicide or other serious cases.

There may be witnesses to locate and question, documents to be reviewed and scientific tests to conduct and review. The scene of the crime may be intricate and a reconstruction may be necessary and all evidence reviewed.

In a complex case, experts need to be located, retained and able to conduct their own analysis of the case as well as be available to testify.

When Is It A Bad Idea To Waive Time?

In most cases, your defense attorney will want you to delay or waive your right to a speedy trial so that your case can be thoroughly investigated and your defense prepared. Very often, defense attorneys are extremely busy and have to juggle motions, hearings, court appearances and preparation of other cases with your own.

Having additional time to prepare is usually advised so that all issues in your case are given the time and analysis required.

It may be a bad time to waive time if your attorney is fully prepared and confident that you have a valid defense and that no benefit would be gained by waiving time. If your witnesses may leave town or one is ill and is essential to your defense, then do not waive time.

Also, if the prosecutor is just out of law school and appears ill-prepared, then getting your case to trial quickly may be to your advantage so long as your attorney is set to go.

If you do waive time, then later asserting that your right to a speedy trial was denied may be difficult to assert.

Potential Outcomes of a Serna Motion

If a court grants your Serna Motion and rules your right to a speedy trial was violated, then all charges against you will be dismissed9.

Your attorney may want to have your arrest records sealed or expunged as well.

If unsuccessful, your attorney can appeal the ruling if you are convicted. The basis of an appeal is usually that the trial court erred in failing to find that you did demonstrate actual prejudice from the delay in trying you and that it should have been given more weight over the prosecution’s justification for the delay

If your charge was a misdemeanor and more than one year had passed but the court still denied your motion, you might argue the trial court erred in requiring that actual prejudice be demonstrated.

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  1. Serna v. Superior Court (1985) 40 Cal.3d 239 []
  2. “The defendant in a criminal cause has the right to a speedy public trial. …” (Cal. Const., art. I, § 15.) In a misdemeanor prosecution that right attaches under the California Constitution when a criminal complaint is filed. (Scherling v. Superior Court (1978) 22 Cal. 3d 493, 504 [149 Cal. Rptr. 597, 585 P.2d 219]; People v. Bradford (1976) 17 Cal. 3d 8, 18 [130 Cal. Rptr. 129, 549 P.2d 1225]; Jones v. Superior Court (1970) 3 Cal. 3d 734, 739 [91 Cal. Rptr. 578, 478 P.2d 10]; Harris v. Municipal Court (1930) 209 Cal. 55, 62 [285 P. 699]; Rost v. Municipal Court (1960) 184 Cal. App. 2d 507 [7 Cal. Rptr. 869]. []
  3. People v. Williams 207 Cal.App.4th Supp. 1 (2012). []
  4. People v. Martinez (2000) 22 Cal.4th 750, 755. []
  5. People v. DePriest (2007) 42 Cal.4th 1, 26 []
  6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ….” (U.S. Const., 6th Amend. []
  7. People v. Hannon (1977) 19 Cal.3d 588, 608 []
  8. See – Serna v. Superior Court, Footnote 1. “Therefore, although there may be cases in which a defendant is able to demonstrate actual prejudice from delays of shorter duration, he need not do so when the delay exceeds one year. Delays of that magnitude are presumptively prejudicial.” []
  9. People v. Hill (1984) 37 Cal.3d 491, 496 []


Hi Ms. Aizman, I apologize now if my question is silly. I just don’t know much about this.
I was wondering if the Serna Motion can be used in regards to an arrest warrent/revoked probation?… And is the Serna motion only valid in Cali.?

Hi Tara: You have a right to a speedy trial in every state. It is a constitutionally protected right, therefore the law applies nationwide. However, once the case is completed (i.e. a plea of no contest or guilty is entered), Serna no longer applies.

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