Criminal Law

Delaying or Getting a Continuance in a Criminal Case

A delay in a court proceeding is known as a continuance. Either the prosecution or the defense may try to get a continuance in a criminal case. Also, the continuance may be sought before a trial or during the trial.

Getting a Pretrial Continuance

To get a pretrial continuance, either the prosecution or the defense must file a motion for a continuance. A motion is a written request to the court. The reasons why a delay is necessary must be fully explained in the motion.

A pretrial motion for a continuance may be filed at a defendant's pretrial hearing. The motion may also be filed any time before the defendant announces he is ready for trial.

Reasons for Pretrial Continuance

A pretrial continuance may be given for many reasons, including:

  • Inadequate time to prepare
  • Conflicting obligations of counsel
  • Inflamed public sentiment
  • Illness
  • Legislative continuance
  • A missing witness
  • An agreement between the parties
  • Required by law
  • Religious holidays

Not Enough Time to Prepare

Either side may get a pretrial continuance if either can show that there wasn't enough time to prepare for a trial. Factors that are considered include:

  • The amount of time between retention of counsel and the trial date
  • Other obligations of counsel
  • The counsel's health
  • The complexity of the case

Conflicting Obligations of Counsel

Either side may get a pretrial continuance if either can show they have a conflict that will make them unavailable for a trial. However, the trial court may require either party to get substitute counsel.

Inflamed Public Sentiment

Either side may get a pretrial continuance if there is inflamed public sentiment. The prosecution or defense would need to show defendant's right to a fair trial may be denied as a result of pretrial publicity.


A delay on the basis of illness may be the result of a defendant's illness, the defense counsel's illness or the prosecutor's illness. If the defendant is ill, he must show his illness will lessen his ability to assist counsel.

The defendant usually submits affidavits signed by his physician to prove illness. Either counsel's illness may be presented to the court by the counsel's own testimony. They must show that no substitute counsel is available.

Legislative Continuance

In some states, if a defendant's counsel is a member of a state legislature, counsel may get a pretrial continuance for periods during which the state legislature is in session.

Missing Witness

A defendant may have court proceedings delayed if a defense witness is missing and won't be available for trial. However, the defendant must provide the name and address of the witness and show:

  • He put forth a good effort to try and get the witness to attend
  • The testimony of the witness will be important
  • He did not cause the absence of the witness
  • The motion is not being made for the purpose of a delay
  • There is no reasonable expectation that the witness will become available for trial

Agreement between the Parties

The parties may delay the court proceedings if they agree on the continuance and a good cause is shown.

Required by Law

A continuance is required by law when:

  • A defendant hasn't been arrested
  • A corporate or association defendant hasn't been served with a summons
  • When there wouldn't be enough time during the trial court's term to complete the trial

Religious Holidays

Counsel for either side may get a pretrial continuance if either is required to appear in court on an observed religious holiday.

Questions for Your Attorney

  • When can a motion for a pretrial continuance be filed with the court?
  • Under what circumstances are motionsĀ for pretrial continuances granted? Does a court have the discretion to deny any motion for a pretrial continuance?

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