Continuance

Although a continuance is the result of a court order issued by the judge in a trial or hearing, it also can come from a statute or law. The terms continuance and postponement are frequently used interchangeably.17 Am Jur 2nd "Continuance", section 1

The burden of scheduling trials, which includes assembling witnesses, lawyers and jurors at the same time, is not usually a reason to grant continuances in criminal cases, except for compelling reasons.State v. Taylor 107 NM 66, 752 P 2nd 78117 Am Jur 2nd "Continuance", section 59

A person accused of a crime has certain rights defined by the federal constitution, state constitutions and various statutes, such as the right to be represented by counsel, the right to compulsory process (issue of subpoena ad testificandum and subpoena duces tecum) to secure the attendance of witnesses, gather evidence and the right to a speedy trial. In some cases, denial of a continuance may infringe on such rights and amount to a violation of due process—which could result in dismissal of an indictment, or provide grounds for reversal.State v. Saucier 128 NH 291, 512 A 2nd 1120March v. State, 105 NM 453, 734 P 2nd 231

Courts will lend a defendant all practicable help in securing evidence necessary for a defense, if it is sought in a timely manner. It is usual to grant a continuance if there is a problem in gathering evidence or the serving of subpoenas upon witnesses, if the defendant is not at fault for the delay. (See Powell v. Alabama)Powell v. State, 39 Ala 246 100, So. 2nd 38, cert den 267 Ala 100, 100 So 2nd 46

Once accused of a crime, the prosecutor has a right to a reasonable opportunity to secure the personal attendance of a witness. A continuance is proper if it appears due diligence has failed to procure the presence of a witness. It must be shown that it is reasonably certain the witness' presence will be subsequently secured, and that the expected testimony will be material to the accused's defense.State v. Wilcox, 21 SD 532, 114 NW 687

Under the Sixth Amendment to the United States Constitution, a person accused of a crime and facing a criminal prosecution, is guaranteed the right to a speedy trial. Various state constitutions also guarantee this right.16 ALR 4th 128317 Am Jur 2nd "Continuance", section 60

The Federal Speedy Trial Act of 1974 operates to implement an accused person's constitutional right to a speedy trial.18 USCS section 3161-317488 Stat. 2080 Factors considered by the courts within the Speedy Trial Act are:

• Whether the failure to grant a continuance in the proceeding would be a miscarriage of justice.18 USCS section 3161 (h) (8) (B) (i)
• Whether the trial is so complex, the gathering of witnesses and evidence so burdensome, or the fact situation so unusual that a continuance should be granted.Idem. at (ii)
• The arrest precedes the indictment or the fact situation is complex.Idem. at (iii)
• The failure to grant such a continuance in a case is enough to deny the defendant reasonable time to obtain counsel, or effective preparation.Idem (iv)

The result of this law has been that many continuances previously issued have been denied.United States v. Correia (CA 1 Mass) 531 F 2nd 1095

Unless the defendant consents in writing to the contrary, a trial may not commence less than 30 days from the date when the defendant first appears through counsel or expressly waives counsel or elects to proceed pro se (without a lawyer).71 ALR Fed 415United States v. Rojas-Contreras 474 US 231 (1985) Case law of the Speedy Trial Act is found in 16 ALR 4th p. 1283 et seq.46 ALR Fed 358

A defendant's rights under the Speedy Trial Clause of the Sixth Amendment are triggered by "either a formal indictment or information or else the actual restraints imposed by arrest and holding (imprisonment) to answer a criminal charge."United States v. Marion 404 US 307, 320 (1971)

In the 1972 Barker v. Wingo case,Barker v. Wingo, 407 US 514 (1972) the United States Supreme Court set out a four-factor test for determining whether delay between the initiation of criminal proceedings and the beginning of a trial violates the Sixth Amendment right to a speedy trial. The court must consider:

• The length of delay.
• The cause of the delay.
• The defendant's assertion of his rights to a speedy trial.
• The presence or absence of prejudice resulting from the delay.

Appeal Courts routinely reject Sixth Amendment challenges to a speedy trial, after a criminal conviction.United States v. Tannehill 49 F. 3rd 1049, cert den (CA 5th) 116 SC 167, (1995)United States v. Baker, 63 F. 3rd. 1478, 1497, (CA 9), (1995) cert den 116 SC 824, (1996) The case of United States v. Loud HawkUnited States v. Loud Hawk 474 US 302 (1986) did not consider a 90-month delay in trial excessive. In that case, there had been a series of motions consuming a great deal of time.

In the 1992 case of Doggett v. United States,Doggett V. United States 505 US 647 (1992) the United States Supreme Court considered an 8½ year delay between indictment and criminal trial excessive.

Sometimes press coverage of a criminal act and the trial can become excessive. This is usually greater in one part of the jurisdiction than others. Coverage is often greater in the time immediately following the commission of the crime and also after a high profile arrest. The question becomes: does the excessive coverage, including editorial speculation, so color the potential jury pool that a fair trial cannot be had? A continuance of the criminal trial can be granted to transfer the trial to another part of the jurisdiction, or to let passions cool.Saltzburg, S. "American Criminal Procedure, Cases and Commentary, Second Edition" West Publishing Co. 1984 p. 948 The movement of the trial is called a change of venue.

Federal Rule of Criminal Procedure 21 (a) provides for the transfer of proceedings to another district if the judge is satisfied that there exists a prejudicial atmosphere. To meet the requirements for a transfer, the trial judge must determine that there exists so great a prejudice in favor of the prosecution or against the defendant that there is a reasonable likelihood the defendant cannot obtain a fair and impartial trial. In the famous 1966 Sam Sheppard case, (Sheppard v. Maxwell)Sheppard v. Maxwell, 384 US 333, (1966) the United States Supreme Court held that where there was a reasonable likelihood that the prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. This doctrine has been annunciated in other cases.Rideau v. Louisiana 373 US 723, 727, (1963)Irvin v. Dowd, 366, US 717, 718, (1961)

There is reason to believe that courts do not generally grant a change of venue upon a reasonable likelihood of prejudice from pre-trial publicity. A showing of actual prejudice usually is required unless the state (prosecution) effectively concedes prejudice.Durrough v. State 562, SW 2nd 488 (Tex Circuit App. 1978)

In the 1981 California case of Martinez v. Superior CourtMartinez v. Superior Court, 29 Cal. 3rd 574, 174, Cal Rptr 701, 629, P 2nd 502, (1981) the court used the "reasonable likelihood of prejudice standard" to grant a mandamus petition and order a change of venue in a murder prosecution. The court emphasized extensive publicity over the course of a year prior to the trial, the small size of the county where the trial was to be held, and the gravity of the charge. The court observed that the status of the victim and the accused in the community are significant, but not necessarily controlling factors in ruling on a venue change request.

In the 1982 California case of Odle v. Superior CourtOdle v. Superior Court, 32 Cal. 3rd 932, 187 Cal Rptr. 455, 654, P2nd 255, (1982) the California Supreme Court did not find there had been any reasonable likelihood of prejudice from pretrial publicity.

The usual approach is to demand a showing of actual prejudice. In the 1981 case of People v. Botham, the Colorado court overturned the defendant's murder conviction partly because there had been a denial of a change of venue. The court emphasized the number of jurors who had expressed an opinion that the defendant was guilty, the number who had been exposed to pretrial publicity, the juror's knowledge of the details of the crime, and the information that was brought forth on voir dire to find that the defendant met the burden of showing a presumption of partiality.People v. Botham 629, P 2nd 589 Colorado 1981

A more typical finding is seen in Swindler v. State,Swindler v. State Ark 418, 592 SW 2nd 91 (1991) a 1991 case from Arkansas that upheld the death penalty and rejected challenges to jury bias and change of venue motion where three jurors were seated who had read and heard about the case, and over 80% of the jurors called were excused for cause. Extensive case law is discussed.39 ALR 2nd 1314, section 317 Am Jur 2nd "Continuance", sections 114-115

Perhaps the most famous case in pre-trial publicity is that of Sheppard v. MaxwellSheppard v. Maxwell, 384 US 333, 1966 argued by F. Lee Bailey. Sam Sheppard, a doctor was convicted of second degree murder of his wife. The case had been subjected to a large amount of pre-trial news coverage and widespread speculation about Sheppard's guilt. The United States Supreme Court ruled that the case should be remanded for a new trial, opining that the trial court should have limited news access prior to the trial.Saltzburg, S. "American Criminal Procedure, Cases and Commentary", West Publishing Co. 1984, p. 926-934

Change of venue requests, choice of a new venue and where the new venue is sought because of local prejudice varies in different jurisdictions. General case law is discussed.50 ALR 3rd 760, section 14

Continuances are traditionally granted to allow the defendant additional time for procuring an absent witness, or other evidence necessary for the defense or the prosecution of the applicant's case.State v. Humphreys, Utah, 707 P 2nd 109Federal Rules of Procedure 50, Section 50:8People v. Leary, 28 Cal 2nd 727, 172 P 2nd 34

Several factors are considered in issuing a continuance on the ground that a witness or evidence is absent:

• The expected evidence or witness is material and competent to the trial.83 ALR 134944 ALR 2nd 71142 ALR 2nd 1129, section 3
• There is a probability that the evidence will be forthcoming if the case is continued. (Case law reviewed)17 Am Jur 2nd "Continuance", section 7013 ALR 147
• The moving party (the party requesting the continuance) has exercised due diligence (issued a subpoena) to secure the evidence or witness.18 ALR 2nd 78917 Am Jur 2nd "Continuance", section 73

To obtain a continuance on the basis of absence of counsel in a criminal trial, the defendant must show that the absence was attributable to some unforeseeable cause.Lopez v. State, 152, Tex Crim 562, 216 SW 2nd 183

When the absence of counsel is caused by an act or omission of the defendant, a continuance may be properly denied.Holt v. United States, CA 8 Mo, 267, F 2nd 497Baca v. People 139, Colo, 111, 336, P 2nd 712Mixon v. Commonwealth, 282, Ky 25, 137 SW 2nd 710

The Supreme Court of the United States will not postpone argument for the purpose of giving a famous counsel an opportunity to appear for a party adequately represented by other able counsel.Dennis v. United States, 340 US 887, 95 L Ed. 644, 71 S. Ct. 133

Discretion for the criminal trial court to grant or deny a continuance is ultimately limited and defined by the Sixth Amendment to the United States Constitution and the Fourteenth Amendment of the United States Constitution. These include the right to have effective counsel.73 ALR 3rd 725, section 3 Case law discussed.17 Am Jur 2nd "Continuance", sections 83 et seq

A legitimate difference of opinion in trial tactics between the defendant and counsel (lawyer) can be a reason for dismissing the lawyer in a criminal case, and the seeking of a continuance.17 Am Jur 2nd "Continuance", section 88

A continuance may be granted if the counsel is legitimately engaged in another professional proceeding.31 ALR 19817 Am Jur 2nd. Section 98

A continuance may be granted in a criminal case where matters arise that could not have been reasonably anticipated. A continuance should be granted where depositions with information tending to create an alibi for the accused had been suppressed.Blake v. State, Tex Crim 377, 43 SW 107

If the defendant has been deceived by the state in a criminal action, a continuance can be granted.Fagan v. State, 112, Tex Crim 107, 13 SW 2nd 838, later superseded by statuteSalinas v. State 65 Tex Crim 18, 142 SW 908Haggerty v. State 113 Tex Crim 428, 21 SW 298

A continuance can be granted if there is an amendment to the indictment or introduction of new information in the criminal complaint.Smith v. State 4 Okla Crim 328, 111 P 96085 ALR 2nd 1199

A continuance may be granted because unexpected evidence or testimony has emerged. This includes additional witnesses not named in the original indictment, or unanticipated testimony of witnesses, such as major differences of fact from deposition and trial. Minor differences in testimony do not constitute surprise.66 ALR 36058 ALR 2nd 114117 Am Jur 2nd "Continuance", sections 103-106

In some cases, the denial of a continuance to allow for adequate trial preparation may constitute grounds for an allegation of denial of effective assistance of counsel as required by the Sixth Amendment. The propriety of the trial court's refusal of a continuance sought on the ground of a want of time for a preparation of the defense of a criminal case depends on the facts and circumstances of the individual case.Ungar v. Saradite 376, US 575, 11 L Ed. 2nd 921, 84 S. Ct. reh den 377 US 925, 12 L Ed. 2nd 217, 84 S. Ct. 1218

A conviction may be reversed if, in the discretion of the court, the accused was not given an adequate time to prepare a defense, and this was material in depriving the accused of a fair trial.Avery v. Alabama 308 US 444, 84 L. Ed. 377, 60 S. Ct. 32152 ALR 2nd 83423 ALR 1378

A criminal prosecution may be continued if the defendant is too ill to attend the trial.66 ALR 2nd 232 In cases where there is little hope that the accused's health will ever improve, and continuance can properly be denied. Notable is a case of an 80-year-old man who had many delays due to a chronic medical condition. In his trial, the judge ruled there was little hope he would ever be in a better condition, and denied the continuance.Freeman v. State 91 Tex. Crim 410, 239, SW 969

There has been opposite opinion where a continuance was allowed, and any question of a prospective improvement in the defendant was not the test and irrelevant.Eastland v. State 223 Miss 115, 78, So 2nd 127

A continuance is proper when the accused is unable to assist counsel because of mental illness.66 ALR 2nd 232, section 9

The absence of counsel is a recognized ground for continuance of a civil case and is in the discretion of the court to grant or deny.49 ALR 2nd 107348 ALR 2nd 1155

Illness, death or withdrawal of counsel in civil cases are also reasons for granting a continuance.67 ALR 2nd 497

A civil case may be continued due to a lack of evidenceTurner v. Pope Motor Car Co. 79 Ohio St. 53, 86 NE 651 or witnesses.Harrah v. Margenthau 67 DC 119, 89 F 2nd 863Ex Parte Drive 258 Ala 233, 62 So. 2nd 241 An affidavit is usually required to explain the issues involved in the request for a continuance. An affidavit for continuance that did not state the name and address of an absent witness and what the defendant expected to prove by his testimony failed to comply with the requirements of the statute, and denial thereof was not an abuse of the trial court's discretion.Tucson v. O'Reilly Motor Co. Ariz 168, P 2nd 245

If all the requirements of an application for a continuance are met and described in the affidavit submitted to the court, and it is not being done for purposes of delay, it may be an abuse of discretion to deny a continuance.Knowles v. Blue, 209 Ala 27, 97 So 481Vaught v. Rider 83 Va 659, 3 SE 293

To justify a continuance of a civil case due to the absence of evidence, the missing evidence must be shown to have relevance to the case.Cohn v. Brownestone 93 Cal 362, 28 P 953Price v. Lauve 49 Tex 74

The missing evidence must be material to some issue in the case.Krodel v. Houghtaling (CA 4 Va) 468 F 2nd 887, cert den 414 US 829, 38 L Ed. 2nd 64, 94 S. Ct. 57

Generally, in a civil case, a continuance sought due to absence of evidence will not be granted unless reasonable diligence has been used to procure it.61 ALR 366 The question of diligence is a matter of fact, addressed to the sound discretion of the court.Maupin v. King Tex Civ App 25 SW 2nd 153, writ dism

In some jurisdictions, the issuance of a subpoena is evidence of due diligence.Fritsch v. J. M. English Truck Line, Inc. 151 Tex 168, 246 SW 2nd 856

In many jurisdictions the service of a subpoena by itself, is insufficient to entitle a party to a continuance because of the absence of a witness.Kimbell & Mitchell v. Bryan 56 Iowa 632 10 NW 218Thurman v. Virgin 57 Ky 785Texas & P. R. Co. v. Hall 83 Tex 675, 19 SW 12115 ALR 3rd 1272

To demonstrate the absence of material evidence in the form of papers, documents and the like, it is usually necessary to show that a subpoena duces tecum has been issued.People v. Zentgraf 49 Cal App 226, 193 P 274

A continuance in a civil case can be granted because of the death or illness of a party to the action.68 ALR 2nd 470 section 4 (b)

The absence of counsel is a recognized ground for continuance of a civil case.Maistrosky v. Harvey, Fla App D2 133 So 2nd 103 cert den Fla 138 So 2nd 336Epstein v. Insurance Co. of North America, 245 Pa. 132, 91 A 244

A court is not required to grant a postponement merely because a party's attorney is absent.Baumberger v. Arff 96 Cal 261, 31 P 53

The court may require that the party seeking the continuance to show the reasons that the counsel is absent.People v. Halfinger 91 Cal App 649, 267 P 366Boyd v. Leith Tex Civ App 50 SW 61848 ALR 2nd 1150112 ALR 589

The absence of a party may be grounds for a continuance of a civil case.68 ALR 2nd 47047 ALR 2nd 105824 ALR Fed 9296 Am Jur Proof of Facts 434 "Insurance" Proof 2 Factors considered legitimate in an absence are illness or disability.68 ALR 2nd 470, section 10 (b)4 ALR Fed 92968 ALR 2nd 457

It must be determined by the court whether the absence of a party or witness is material to the case, and whether there have been prior continuances or delays.King v. United Ben. Fire Ins. Co. CA 10 Okla 377 F 2nd 728 11 FR Serv 2nd 1018 cert den 389 US 857, 19 L Ed 2nd 124, 88 S. Ct. 99

Absence because of voluntary intoxication is not a proper reason to continue a civil case.Cleeland v. Cleeland 249 NC 16, 105 SE 2nd 114 Absence because of mental illness mayStratford v. Stratford 92 NC 297 or may not be a legitimate reason for a continuance of a civil trial.Chambers v. Anderson County Dept of Social Services (App) 280 SC 209, 311 SE 2nd 746

A party may have a good ground for a continuance of a civil case when through no fault of their own, it is taken by surprise by the conduct of its adversary and would be unjustly prejudiced if forced to proceed without being given an opportunity to prepare to meet the new situation.Hays v. Viscome 122 Cal App 2nd 135, 264 P 2nd 17339 ALR 2nd 1435

Surprises include an amendment or substitution of pleadings.Hyman v. Grant 102 Tex 50, 112 SW 1042 Lack of time to prepare for a new complaint is a reason for a continuance.McDougald v. Hulet 132, Cal 154, 64 P 278 If the amendment requires the production of new evidence, a continuance may be granted.Behan v. Ghio 75 Tex 87, 12 SW 996

A continuance may be granted because more time is needed to prepare for trial.People v. Murray 46 Cal App. 2nd 535, 116 P 2nd 141

Where a defendant in a civil proceeding is entitled to have interested persons joined as parties (added to the list of plaintiffs or defendants in the case), and it is shown at the trial that those persons have not been included in the petition, he is entitled to a postponement of the trial until they can be joined.San Antonio Portland Cement Co. v. Gschwender Tex Civ App 191 SW 599 A civil case may be continued to allow proper service to another party.Harter v. Harter 5 Ohio 318 A pending, intervening proceeding may be the legitimate reason for a continuance.Keller v. Cunningham 6 Pa 376

Applications for continuance usually must be in writing and given to both the court and the opposing party (other litigants).17 Am Jur 2nd, section 117 The Federal Rules of Civil Procedure confers on federal district courts the authority to make local practice and procedure rules.Rule 83 Federal Rules of Civil Procedure In general, written requests are required. Failure in this will lead to a refusal for a continuance.23 ALR 122768 ALR 2nd 470, section 867 ALR 2nd 497, sections 5 and 866 ALR 2nd 267 section 5 (a)66 ALR 2nd 232 section 447 ALR 2nd 1058 section 6 (b)

Affidavits outlining the reasons for application of a continuance are usually required to accompany the written request.

A hearing may be held on the issue of the propriety of an application for a continuance.Duncan v. State 89 Okla Crim 325, 207 P 2nd 324 However, there is no absolute requirement that a formal hearing in the matter of a continuance.State v. Kee 238 Kan 342, 711 P 2nd 746 It is reversible error to deny a continuance because the trial court thought the defendant was malingering. This occurred when the court came to a conclusion outside the facts presented at trial, and were contradictory to a physician's testimony that it was unsafe for the defendant to appear.Alderete v. Mosley Tex Civ App 200 SW 261

A continuance is a judicial act and takes a judicial act to overturn it.Shock v. Berry, 70 Pa Super 560Fidelity Phenix Fire Ins. Co. v. Oliver 25 Tenn App 114, 152 SW 2nd 2547 AM Jur Pl & Pr Forms (Rev), "Continuance", Form 183

It is within the discretion of the court to assign and impose costs for a continuance in a civil case. Extensive case law reviewed.17 Am Jur 2nd "Continuance", section 131 As a condition to granting a continuance, a court may require a plaintiff to a file a bond securing a payment of all court costs incurred.Clough v. Troutman (App Summit Co) 29 Ohio L Abs 262Dudley v. Witter, 51 Ala 456 overruled on other grounds

• Barker v. Wingo
• Change of venue
• Due process
• Fourteenth Amendment of the United States Constitution
• Powell v. Alabama
• Sheppard v. Maxwell
• Sixth Amendment to the United States Constitution
• Subpoena ad testificandum
• Subpoena duces tecum

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Category:American legal terminology