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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.


http://criminal.lawyers.com/criminal-law-basics/delaying-or-getting-a-continuance-in-a-criminal-case.html