Sometimes the prosecution or the defense in a criminal trial discovers that they will not be ready to present their case properly at the scheduled time. Either side can ask the court for a continuance, or the judge can order a continuance independently if they feel that it is necessary. Judges generally do not grant continuances freely unless proceeding to trial would violate the defendant’s rights. They have discretion to deny a continuance unless the law in their state requires a continuance to be granted in a certain situation.
A determination on a continuance usually comes down to whether the party seeking the continuance has acted with proper diligence in preparing their case. If a defendant decides to hire a lawyer or change their lawyer, for example, they should do this promptly. The party seeking the continuance needs to have made reasonable efforts to move the case forward, although they do not need to have done everything possible to develop the case to get a continuance.
Continuances Based on Inadequate Time
Perhaps the most common reason for a continuance is when one side did not have enough time to investigate the case and analyze the evidence. Many defense attorneys, especially public defenders, can move only so quickly because they are representing many clients. Presenting a case without being adequately prepared could violate the defendant’s Sixth Amendment right to counsel. If the defense appears to be seeking a continuance simply as a delay tactic, and no unexpected event has occurred, the judge will deny the continuance.
The prosecution may have some limits on whether they can request a continuance based on inadequate time to prepare, since the defendant has a right to a speedy trial under the Sixth Amendment. (Read more here about the right to a speedy trial.)
Continuances Based on Changing the Indictment or Attorney
The indictment is the legal document that contains the information about the defendant’s charge. If the prosecution makes meaningful changes to the facts contained in the indictment, the defense may be justified in seeking a continuance so that they can prepare for the changed facts. If the change is relatively minor and not relevant to the merits of the case, however, a continuance probably is not warranted.
Sometimes a defendant will seek a continuance when they are changing their attorney. They have a Sixth Amendment right to choose their own attorney, so a judge may grant a continuance if the defendant can show that changing their attorney is necessary. On the other hand, a defendant may not get a continuance if they delay in getting a new attorney, they have another attorney who is ready to represent them, or the new attorney would not be sufficiently prepared to present their case even with the continuance.
Continuances Based on Surprises
If the prosecution announces that it will introduce new evidence or new witnesses who were previously unknown to the defense, this will be a strong basis for a continuance. The defense also may seek a continuance if it is unable to locate a witness who was expected to testify on the defendant’s behalf. A judge may be reluctant to grant a continuance if the defense still has sufficient time to prepare, or if the evidence is related to evidence that had been disclosed to the defense.
A judge even may grant a continuance during a trial if a witness for the prosecution provides unexpected testimony that the defendant could not have anticipated. If the defense can gather contradictory evidence within a reasonable time, the judge likely will provide an opportunity to do so. However, a defendant probably will not get a continuance if their own witness provided unexpected testimony.