Continuances in Criminal Cases

A continuance is a grant of additional preparation time before or during a trial. Either the prosecution or the defense can request a continuance, and sometimes even the court can order a continuance of its own accord.

Reasons for a Continuance

Lawyers typically seek continuances because they want more time to prepare for trial. Common reasons for continuances include the following.

Insufficient time to prepare in general

Both the prosecution and the defense are entitled to a reasonable time to prepare for trial. Exactly what constitutes a reasonable time is open to interpretation, and depends on the circumstances and complexity of a particular case. In general, each side must be given sufficient time to:

• review the evidence
• investigate the facts
• consult with witnesses
• negotiate a plea agreement (if one is possible), and,
• in the case of the defense, hold lawyer-client meetings.

Neither side may excessively delay the trial for its own advantage, especially the prosecution: An unreasonable delay can violate the defendant’s Sixth Amendment right to a speedy trial.

Attorneys often request continuances because their work on other cases has prevented them from devoting the necessary time to the case at hand. Courts usually allow some leeway in these situations, especially for court-appointed defense attorneys.

Time for the defense. While both the prosecution and the defense are entitled to reasonable time to prepare, time shortages most often affect the latter. A lack of adequate time that renders an attorney ineffective in representing the client violates the Sixth Amendment right to counsel. On the other hand, if defense counsel has had ample time to prepare and no surprising event justifies a grant of additional time, a judge won’t hesitate to deny a continuance request. Courts will also deny continuance requests if the defendant or defense attorney caused the need for more time through negligence or delay (also known as “laches”).

Changes to the indictment or information

The addition of new facts or crimes to the indictment or information (the document that charges the defendant with crimes) will typically require additional time to prepare a defense. For example, the prosecution changing the alleged date of a crime might justify a continuance to allow the defendant to prepare an alibi for the date in question.

However, a continuance due to a change in a charging document is warranted only if the change (known as “variance”) compromises the defendant’s case. If the prosecution makes changes merely to correct technical defects and those defects don’t alter the case in any meaningful way, then a judge probably won’t grant a continuance.

Replacing counsel

The Sixth Amendment guarantees criminal defendants the right to counsel, but that right has limitations. Defendants have the right to counsel of their choosing—within reason. When a defendant wants to substitute one defense attorney for another, the court must consider several factors before granting a continuance to allow the new lawyer to prepare. A judge may not arbitrarily insist that the case move forward when it’s clear that a continuance is needed for a new lawyer.

A judge probably won’t grant a continuance if:

• the defendant has unreasonably delayed in getting a new attorney
• the defendant has another attorney who is prepared for trial
• the continuance wouldn’t help the new attorney adequately represent the defendant, or
• the defendant fails to explain why a new lawyer is necessary.

Surprise witnesses or evidence

New events or information previously unknown to the defense—for example, a new witness revealed the day before trial or new physical evidence supporting the prosecution’s case—will likely warrant a continuance. Similarly, in some cases the absence of a witness that the defendant expected to be present may necessitate additional time so the defendant can try to get the witness to court.

A judge may deny a continuance when:

• the new evidence is reasonably related to evidence the defendant already knows about
• the defendant has enough time without the continuance to prepare for the new evidence
• the defendant wasn’t diligent in anticipating the evidence (for example, defense counsel failed to read forensic reports turned over by the prosecution and was “surprised” when the prosecution’s forensic expert testified to test results contained in the reports), or
• the defendant fails to promptly inform the court of the surprise evidence or witness.

Surprise testimony

It’s not uncommon for the prosecution’s witnesses to say something at trial that they either never said before (for example, when interviewed by the police) or that contradicts statements they’ve made in the past. When this happens, continuances are proper if the defense can show that the defendant:

• didn’t anticipate and can’t be expected to have anticipated the testimony
• wants to present testimony or evidence to counter the surprise testimony, and
• can present that contradictory evidence in a reasonable period of time.

As always, if the defendant’s negligence contributed to the surprise, the judge can reject the continuance request. Additionally, a court usually won’t grant a continuance where the surprise testimony comes from one of the defendant’s own witnesses.

How Courts View Continuance Requests

Because continuances delay the resolution of a case, judges typically frown upon them. It’s usually only when the defendant’s rights might otherwise be violated that a court will grant a continuance request. Absent a law or constitutional right to the contrary, judges have broad discretion to determine whether to issue a continuance.

Diligence

Perhaps the most important consideration for a judge is whether the party requesting the continuance has been diligent—in other words, whether the party put in sufficient effort. Parties must be active in reviewing evidence, interviewing witnesses, issuing subpoenas, and testing forensic evidence. Additionally, defendants must be conscientious in obtaining counsel and in alerting the court to any problems with current counsel.

Exercising diligence means that the party has done everything reasonable, not everything possible. Like most issues relating to continuances, the definition of diligence depends upon the facts and circumstances of the particular case.