Continuance

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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."

Continuances in criminal cases[edit]

In general[edit]

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.[1]

The burden of scheduling trials, which includes assembling the witnesses, lawyers and jurors at the same time, usually is a reason not to grant continuances in criminal cases except for compelling reasons.[2][3]

A person accused of a crime has certain rights defined by the federal constitution, state constitutions and various statutes. These include 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.[4][5]

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) [6]

One accused of a crime 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.[7]

The Federal Speedy Trial Act of 1974[edit]

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.[8][9]

The Federal Speedy Trial Act of 1974 operates to implement an accused person's constitutional right to a speedy trial.[10][11] Factors considered by the courts within the Speedy Trial Act are:

The result of this law has been that many continuances previously issued have been denied.[16]

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).[17][18] Case law of the Speedy Trial Act is found in 16 ALR 4th p. 1283 et seq.[8][19]

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." [20]

In the 1972 case of Barker v. Wingo [21] 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:

Appeal Courts routinely reject Sixth Amendment challenges to a speedy trial, after a criminal conviction.[22][23] The case of United States v. Loud Hawk [24] 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 [25] the United States Supreme Court considered an 8½ year delay between indictment and criminal trial excessive.

Continuance because of excessive press coverage[edit]

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.[26] 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)[27] 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.[28][29]

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.[30]

In the 1981 California case of Martinez v. Superior Court[31] 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 Court[32] 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.[33]

A more typical finding is seen in Swindler v. State,[34] 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.[35][36]

Perhaps the most famous case in pre-trial publicity is that of Sheppard v. Maxwell[37] 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.[38]

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.[39]

Absence of witness or evidence[edit]

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.[40][41][42]

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

Absence or incapacitation of counsel[edit]

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.[50]

When the absence of counsel is caused by an act or omission of the defendant, a continuance may be properly denied.[51][52][53]

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.[54]

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.[55] Case law discussed.[56]

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.[57]

A continuance may be granted if the counsel is legitimately engaged in another professional proceeding.[58][59]

Surprise[edit]

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.[60]

If the defendant has been deceived by the state in a criminal action, a continuance can be granted.[61][62][63]

A continuance can be granted if there is an amendment to the indictment or introduction of new information in the criminal complaint.[64][65]

A continuance may be granted because there has been unexpected evidence or testimony. This includes additional witnesses not named in the original indictment, or unaticipated testimony of witnesses, such as major differences of fact from deposition and trial. Minor differences in testimony do not constitute surprise.[66][67][68]

Other grounds[edit]

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.[69]

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.[70][71][72]

A criminal prosecution may be continued if the defendant is too ill to attend the trial.[73] 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.[73][74]

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.[75]

A continuance is proper when the accused is unable to assist counsel because of mental illness.[76]

Continuances in civil cases[edit]

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.[77][78]

Illness, death or withdrawal of counsel in civil cases are also reasons for granting a continuance.[79]

Absence of witness or evidence[edit]

A civil case may be continued due to a lack of evidence[80] or witnesses.[81][82] 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.[83]

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.[84][85]

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.[86][87]

The missing evidence must be material to some issue in the case.[88]

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.[89] The question of diligence is a matter of fact, addressed to the sound discretion of the court.[90]

In some jurisdictions, the issuance of a subpoena is evidence of due diligence.[91]

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.[92][93][94][95]

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.[96]

A continuance in a civil case can be granted because of the death or illness of a party to the action.[97]

Absence or incapacity of counsel[edit]

The absence of counsel is a recognized ground for continuance of a civil case.[98][99]

A court is not required to grant a postponement merely because a party's attorney is absent.[100]

The court may require that the party seeking the continuance to show the reasons that the counsel is absent.[101][102][103][104]

Absence of party[edit]

The absence of a party may be grounds for a continuance of a civil case.[105][106][107][108] Factors considered legitimate in an absence are illness or disability.[109][110][111]

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.[112]

Absence because of voluntary intoxication is not a proper reason to continue a civil case.[113] Absence because of mental illness may [114] or may not be a legitimate reason for a continuance of a civil trial.[115]

Surprise[edit]

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.[116][117]

Surprises include an amendment or substitution of pleadings.[118] Lack of time to prepare for a new complaint is a reason for a continuance.[119] If the amendment requires the production of new evidence, a continuance may be granted.[120]

Other grounds[edit]

A continuance may be granted because more time is needed to prepare for trial.[121]

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.[122] A civil case may be continued to allow proper service to another party.[123] A pending, intervening proceeding may be the legitimate reason for a continuance.[124]

Procedure[edit]

Application for a continuance[edit]

Applications for continuance usually must be in writing and given to both the court and the opposing party (other litigants).[125] The Federal Rules of Civil Procedure confers on federal district courts the authority to make local practice and procedure rules.[126] In general, written requests are required. Failure in this will lead to a refusal for a continuance.[127][128][129][130][131][132]

Affidavits outlining the reasons for application of a continuance are usually required to accompany the written request.[127]

Hearing and order for a continuance[edit]

A hearing may be held on the issue of the propriety of an application for a continuance.[133] However, there is no absolute requirement that a formal hearing in the matter of a continuance.[134] 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.[135]

A continuance is a judicial act and takes a judicial act to overturn it.[136][137][138]

It is within the discretion of the court to assign and impose costs for a continuance in a civil case. Extensive case law reviewed.[139] 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.[140][141]

References[edit]

  1. ^ 17 Am Jur 2nd "Continuance", section 1
  2. ^ State v. Taylor 107 NM 66, 752 P 2nd 781
  3. ^ 17 Am Jur 2nd "Continuance", section 59
  4. ^ State v. Saucier 128 NH 291, 512 A 2nd 1120
  5. ^ March v. State, 105 NM 453, 734 P 2nd 231
  6. ^ Powell v. State, 39 Ala 246 100, So. 2nd 38, cert den 267 Ala 100, 100 So 2nd 46
  7. ^ State v. Wilcox, 21 SD 532, 114 NW 687
  8. ^ a b 16 ALR 4th 1283
  9. ^ 17 Am Jur 2nd "Continuance", section 60
  10. ^ 18 USCS section 3161-3174
  11. ^ 88 Stat. 2080
  12. ^ 18 USCS section 3161 (h) (8) (B) (i)
  13. ^ Idem. at (ii)
  14. ^ Idem. at (iii)
  15. ^ Idem (iv)
  16. ^ United States v. Correia (CA 1 Mass) 531 F 2nd 1095
  17. ^ 71 ALR Fed 415
  18. ^ United States v. Rojas-Contreras 474 US 231 (1985)
  19. ^ 46 ALR Fed 358
  20. ^ United States v. Marion 404 US 307, 320 (1971)
  21. ^ Barker v. Wingo, 407 US 514 (1972)
  22. ^ United States v. Tannehill 49 F. 3rd 1049, cert den (CA 5th) 116 SC 167, (1995)
  23. ^ United States v. Baker, 63 F. 3rd. 1478, 1497, (CA 9), (1995) cert den 116 SC 824, (1996)
  24. ^ United States v. Loud Hawk 474 US 302 (1986)
  25. ^ Doggett V. United States 505 US 647 (1992)
  26. ^ Saltzburg, S. "American Criminal Procedure, Cases and Commentary, Second Edition" West Publishing Co. 1984 p. 948
  27. ^ Sheppard v. Maxwell, 384 US 333, (1966)
  28. ^ Rideau v. Louisiana 373 US 723, 727, (1963)
  29. ^ Irvin v. Dowd, 366, US 717, 718, (1961)
  30. ^ Durrough v. State 562, SW 2nd 488 (Tex Circuit App. 1978)
  31. ^ Martinez v. Superior Court, 29 Cal. 3rd 574, 174, Cal Rptr 701, 629, P 2nd 502, (1981)
  32. ^ Odle v. Superior Court, 32 Cal. 3rd 932, 187 Cal Rptr. 455, 654, P2nd 255, (1982)
  33. ^ People v. Botham 629, P 2nd 589 Colorado 1981
  34. ^ Swindler v. State Ark 418, 592 SW 2nd 91 (1991)
  35. ^ 39 ALR 2nd 1314, section 3
  36. ^ 17 Am Jur 2nd "Continuance", sections 114-115
  37. ^ Sheppard v. Maxwell, 384 US 333, 1966
  38. ^ Saltzburg, S. "American Criminal Procedure, Cases and Commentary", West Publishing Co. 1984, p. 926-934
  39. ^ 50 ALR 3rd 760, section 14
  40. ^ State v. Humphreys, Utah, 707 P 2nd 109
  41. ^ Federal Rules of Procedure 50, Section 50:8
  42. ^ People v. Leary, 28 Cal 2nd 727, 172 P 2nd 34
  43. ^ 83 ALR 1349
  44. ^ 44 ALR 2nd 711
  45. ^ 42 ALR 2nd 1129, section 3
  46. ^ 17 Am Jur 2nd "Continuance", section 70
  47. ^ 13 ALR 147
  48. ^ 18 ALR 2nd 789
  49. ^ 17 Am Jur 2nd "Continuance", section 73
  50. ^ Lopez v. State, 152, Tex Crim 562, 216 SW 2nd 183
  51. ^ Holt v. United States, CA 8 Mo, 267, F 2nd 497
  52. ^ Baca v. People 139, Colo, 111, 336, P 2nd 712
  53. ^ Mixon v. Commonwealth, 282, Ky 25, 137 SW 2nd 710
  54. ^ Dennis v. United States, 340 US 887, 95 L Ed. 644, 71 S. Ct. 133
  55. ^ 73 ALR 3rd 725, section 3
  56. ^ 17 Am Jur 2nd "Continuance", sections 83 et seq
  57. ^ 17 Am Jur 2nd "Continuance", section 88
  58. ^ 31 ALR 198
  59. ^ 17 Am Jur 2nd. Section 98
  60. ^ Blake v. State, Tex Crim 377, 43 SW 107
  61. ^ Fagan v. State, 112, Tex Crim 107, 13 SW 2nd 838, later superseded by statute
  62. ^ Salinas v. State 65 Tex Crim 18, 142 SW 908
  63. ^ Haggerty v. State 113 Tex Crim 428, 21 SW 298
  64. ^ Smith v. State 4 Okla Crim 328, 111 P 960
  65. ^ 85 ALR 2nd 1199
  66. ^ 66 ALR 360
  67. ^ 58 ALR 2nd 1141
  68. ^ 17 Am Jur 2nd "Continuance", sections 103-106
  69. ^ 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
  70. ^ Avery v. Alabama 308 US 444, 84 L. Ed. 377, 60 S. Ct. 321
  71. ^ 52 ALR 2nd 834
  72. ^ 23 ALR 1378
  73. ^ a b 66 ALR 2nd 232
  74. ^ Freeman v. State 91 Tex. Crim 410, 239, SW 969
  75. ^ Eastland v. State 223 Miss 115, 78, So 2nd 127
  76. ^ 66 ALR 2nd 232, section 9
  77. ^ 49 ALR 2nd 1073
  78. ^ 48 ALR 2nd 1155
  79. ^ 67 ALR 2nd 497
  80. ^ Turner v. Pope Motor Car Co. 79 Ohio St. 53, 86 NE 651
  81. ^ Harrah v. Margenthau 67 DC 119, 89 F 2nd 863
  82. ^ Ex Parte Drive 258 Ala 233, 62 So. 2nd 241
  83. ^ Tucson v. O'Reilly Motor Co. Ariz 168, P 2nd 245
  84. ^ Knowles v. Blue, 209 Ala 27, 97 So 481
  85. ^ Vaught v. Rider 83 Va 659, 3 SE 293
  86. ^ Cohn v. Brownestone 93 Cal 362, 28 P 953
  87. ^ Price v. Lauve 49 Tex 74
  88. ^ Krodel v. Houghtaling (CA 4 Va) 468 F 2nd 887, cert den 414 US 829, 38 L Ed. 2nd 64, 94 S. Ct. 57
  89. ^ 61 ALR 366
  90. ^ Maupin v. King Tex Civ App 25 SW 2nd 153, writ dism
  91. ^ Fritsch v. J. M. English Truck Line, Inc. 151 Tex 168, 246 SW 2nd 856
  92. ^ Kimbell & Mitchell v. Bryan 56 Iowa 632 10 NW 218
  93. ^ Thurman v. Virgin 57 Ky 785
  94. ^ Texas & P. R. Co. v. Hall 83 Tex 675, 19 SW 121
  95. ^ 15 ALR 3rd 1272
  96. ^ People v. Zentgraf 49 Cal App 226, 193 P 274
  97. ^ 68 ALR 2nd 470 section 4 (b)
  98. ^ Maistrosky v. Harvey, Fla App D2 133 So 2nd 103 cert den Fla 138 So 2nd 336
  99. ^ Epstein v. Insurance Co. of North America, 245 Pa. 132, 91 A 244
  100. ^ Baumberger v. Arff 96 Cal 261, 31 P 53
  101. ^ People v. Halfinger 91 Cal App 649, 267 P 366
  102. ^ Boyd v. Leith Tex Civ App 50 SW 618
  103. ^ 48 ALR 2nd 1150
  104. ^ 112 ALR 589
  105. ^ 68 ALR 2nd 470
  106. ^ 47 ALR 2nd 1058
  107. ^ 24 ALR Fed 929
  108. ^ 6 Am Jur Proof of Facts 434 "Insurance" Proof 2
  109. ^ 68 ALR 2nd 470, section 10 (b)
  110. ^ 4 ALR Fed 929
  111. ^ 68 ALR 2nd 457
  112. ^ 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
  113. ^ Cleeland v. Cleeland 249 NC 16, 105 SE 2nd 114
  114. ^ Stratford v. Stratford 92 NC 297
  115. ^ Chambers v. Anderson County Dept of Social Services (App) 280 SC 209, 311 SE 2nd 746
  116. ^ Hays v. Viscome 122 Cal App 2nd 135, 264 P 2nd 173
  117. ^ 39 ALR 2nd 1435
  118. ^ Hyman v. Grant 102 Tex 50, 112 SW 1042
  119. ^ McDougald v. Hulet 132, Cal 154, 64 P 278
  120. ^ Behan v. Ghio 75 Tex 87, 12 SW 996
  121. ^ People v. Murray 46 Cal App. 2nd 535, 116 P 2nd 141
  122. ^ San Antonio Portland Cement Co. v. Gschwender Tex Civ App 191 SW 599
  123. ^ Harter v. Harter 5 Ohio 318
  124. ^ Keller v. Cunningham 6 Pa 376
  125. ^ 17 Am Jur 2nd, section 117
  126. ^ Rule 83 Federal Rules of Civil Procedure
  127. ^ a b 23 ALR 1227
  128. ^ 68 ALR 2nd 470, section 8
  129. ^ 67 ALR 2nd 497, sections 5 and 8
  130. ^ 66 ALR 2nd 267 section 5 (a)
  131. ^ 66 ALR 2nd 232 section 4
  132. ^ 47 ALR 2nd 1058 section 6 (b)
  133. ^ Duncan v. State 89 Okla Crim 325, 207 P 2nd 324
  134. ^ State v. Kee 238 Kan 342, 711 P 2nd 746
  135. ^ Alderete v. Mosley Tex Civ App 200 SW 261
  136. ^ Shock v. Berry, 70 Pa Super 560
  137. ^ Fidelity Phenix Fire Ins. Co. v. Oliver 25 Tenn App 114, 152 SW 2nd 254
  138. ^ 7 AM Jur Pl & Pr Forms (Rev), "Continuance", Form 183
  139. ^ 17 Am Jur 2nd "Continuance", section 131
  140. ^ Clough v. Troutman (App Summit Co) 29 Ohio L Abs 262
  141. ^ Dudley v. Witter, 51 Ala 456 overruled on other grounds

See also[edit]