In American procedural law, a continuance is the postponement of a hearing, trial, or other scheduled court proceeding at the request of either or both parties in the dispute, or by the judge sua sponte. In response to delays in bringing cases to trial, some states have adopted "fast-track" rules that sharply limit the ability of judges to grant continuances. However, a motion for continuance may be granted when necessitated by unforeseeable events, or for other reasonable cause articulated by the movant (the person seeking the continuance), especially when the court deems it necessary and prudent in the "interest of justice."
Criminal cases In general 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
The Federal Speedy Trial Act of 1974
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.
Continuance because of excessive press coverage 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
Absence of witness or evidence
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
Absence or incapacitation of counsel 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