Typical Reasons Why Defendants Ask for
Continuances
Judges are often asked to continue a hearing or a trial for these reasons:
At arraignment, to secure counsel. An arrestee’s first court
appearance is often the arraignment, when the judge reads the charges
and asks for a plea. Defendants who have not secured counsel may ask
for a postponement, to give them time to hire a lawyer. These requests
are usually granted, but not indefinitely – if the defendant has been
given a reasonable amount of time to hire a lawyer and has not done
so, the court might go ahead and appoint the public defender or other
court-appointed counsel, and schedule an arraignment in short order.
Before a preliminary hearing, to secure counsel. Similarly,
defendants who are without counsel but facing a preliminary hearing are
often given a continuance to hire a lawyer (a preliminary hearing is a
“mini trial,” in which the prosecutor presents enough evidence to
convince the judge that “there’s a case here,” and that the matter should
be set for trial).
To prepare for trial. States typically provide defendants with a
minimum amount of time between entering the plea and going to trial.
But a defendant has a right to adequately prepare defense (which
includes the right of counsel to prepare). Defendants and their counsel
can ask the trial court for a continuance, but must convince the judge
that it’s necessary (and if the motion is made too close to the trial date
itself, the defendant may lose).
To secure witnesses. Sometimes, a defense witness becomes
unavailable or even disappears. When that happens, the defense may
ask for a continuance to locate that witness. Again, however, the
defense will have to convince the court that the witness’s testimony is
important and will have to show that the defense used due diligence in
trying to secure the witness’s appearance in the first place.
The incapacity of the defendant, counsel, or the court. The
defendant’s or counsel’s illness is good cause for a continuance, though
the court may demand proof (including medical testimony). Note that
this reason does not usually extend to prosecutors (see below); they are
expected to find a replacement from their office. If the judge is ill, local
or state rules may require the assignment of another judge.
Defense counsel’s competing commitments. It’s not unusual for
busy defense attorneys to handle multiple cases at the same time; and
it’s common for them to have overlapping courtroom commitments. If
their clients agree, their requests for a continuance will normally be
granted.
To find and hire replacement counsel. Sometimes defendants wish to
fire their lawyers mid-trial. Judges will hold a hearing on the request,
and determine whether good cause supports the defendant’s request. If
the defendant needs to find another lawyer, a court could also give the
defendant a reasonable amount of time to secure a new attorney.
To deal with adverse pre-trial publicity. Occasionally, defendants will
ask for a continuance on the grounds of prejudicial publicity. Whether
that motion will be granted depends on the facts of each case. Typically,
judges will inquire as to how widespread and negative the publicity
actually is; whether a change of venue (to another location within the
court system) will solve the problem; whether questioning potential
jurors about their exposure will result in a taint-free jury; and whether
admonishing the jury to disregard such publicity, or even sequestering
them, will alleviate the effects. Often, the effect of pre-trial publicity can
be mitigated using one or more of these approaches.
Typical Reasons Why Prosecutors Ask for
Continuances
Prosecutors must bring a case to trial within the speedy trial window unless
the defendant has waived time. If the defendant refuses to waive time in
response to the prosecutor’s request for a continuance, the case can be
dismissed. And even when the defendant has waived time, the prosecutor
must obtain the court’s approval for a continuance.
Typical reasons advanced by prosecutors include having another trial or other
court matter in progress, or when the case involves specified offenses (such
as certain sexual assault or child-abuse crimes). But even here, the length of
the continuance will typically be short. Asking for a continuance on the
grounds that the prosecutor is not prepared is typically a non-starter.
When the Judge Says, “No,” Does the Defendant Have
Any Recourse?
Judges are normally very careful to document the evidence offered in support
of the motion for a continuance, and their reasons for granting or denying it.
When they’ve denied a motion by the defense or prosecutor, do either have
recourse?
When criminal defendants lose motions at trial, most of the time they have to
finish the trial and then challenge the loss by filing an appeal in the next higher
court, the one that hears appeals. Occasionally, mid-trial losses can be
challenged right away, and the denial of a motion to continue is one of these
in many states. In fact, even the prosecution can challenge a denial of its
request for a continuance. The parties file what’s known as a “writ,” asking the
higher court to review the evidence and the reasons given by the trial court for
its denial. Most of the time, the lower court’s ruling is undisturbed, unless the
higher court finds that it is unsupported by the evidence or a flagrant abuse of
discretion.
Questions for Your Attorney
1. I’ve waived time and need more time to prepare my case. What do I
have to tell the judge to get the trial date pushed back?
2. If the prosecutor asks for a continuance and gets it, can I challenge the
delay by filing a writ in the appellate court?
3. I’d like to hire new counsel, because I think the one I have is not doing a
good job. What do I have to tell the judge to get time for finding a new
lawyer?
