Criminal Law

Delaying or Getting a Continuance in a Criminal Case

By Janet Portman, Attorney
Criminal trials take precedence over civil matters, even when the defendants are not anxious to get to trial. But judges still are constrained when asked for continuances. They’ll be granted only for certain reasons, and not for long.

The value of bringing criminal cases swiftly to trial is recognized in all states and the federal system. The reasons for this approach begin with the wish to subject incarcerated pre-trial defendants to as little waiting time as possible. In addition, making defendants wait may expose them to the loss of witnesses, physical evidence, and witnesses’ memories. Dragging out a criminal case is particularly difficult for victims. On the other hand, allowing defendants to unnecessarily prolong the proceedings, in hopes that damning evidence will become unavailable, is not in the public’s interest of conducting fair trials.

For these reasons, speedy trials are required by statute in most states, which set “speedy trial” windows. Defendants can give up these speedy trial protections, by “waiving time,” but even when they do, continuances are explicitly disfavored.

In spite of this general approach, both the defense and the prosecution in a criminal case (and the court, on its own motion) may ask for and obtain a continuance, beginning with the defendant’s first appearance, which is typically the arraignment (where the defendant is appraised of the charges and asked how he wishes to plead). Requests (called “motions”) for a continuance can be made up to and including the sentencing hearing. But states typically narrow the reasons for which a defendant or a prosecutor may ask for a continuance. These scenarios are explained below.

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

  • 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?
  • If the prosecutor asks for a continuance and gets it, can I challenge the delay by filing a writ in the appellate court?
  • 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?
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