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
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.
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.
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.
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)
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.
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.
The Federal Speedy Trial Act of 1974 operates to implement an accused person's constitutional right to a speedy trial. 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.
- 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.
- The arrest precedes the indictment or the fact situation is complex.
- The failure to grant such a continuance in a case is enough to deny the defendant reasonable time to obtain counsel, or effective preparation.
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). Case law of the Speedy Trial Act is found in 16 ALR 4th p. 1283 et seq.
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."
In the 1972 case of Barker v. Wingo 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. The case of United States v. Loud Hawk 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.
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. 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) 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.
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.
In the 1981 California case of Martinez v. Superior Court 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.
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.
A more typical finding is seen in Swindler v. State, 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.
Perhaps the most famous case in pre-trial publicity is that of Sheppard v. Maxwell 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.
Absence of witness or evidence
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.
- There is a probability that the evidence will be forthcoming if the case is continued. (Case law reviewed)
- The moving party (the party requesting the continuance) has exercised due diligence (issued a subpoena) to secure the evidence or witness.
Absence or incapacitation of counsel
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. Case law discussed.
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.
A continuance may be granted because there has been unexpected evidence or testimony. 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.
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.
A criminal prosecution may be continued if the defendant is too ill to attend the trial. 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.
Continuances in civil cases
Absence of witness or evidence
A civil case may be continued due to a lack of evidence or witnesses. 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.
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.
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. The question of diligence is a matter of fact, addressed to the sound discretion of the court.
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.
Absence or incapacity of counsel
Absence of party
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.
Surprises include an amendment or substitution of pleadings. Lack of time to prepare for a new complaint is a reason for a continuance. If the amendment requires the production of new evidence, a continuance may be granted.
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. A civil case may be continued to allow proper service to another party. A pending, intervening proceeding may be the legitimate reason for a continuance.
Application for a continuance
Applications for continuance usually must be in writing and given to both the court and the opposing party (other litigants). The Federal Rules of Civil Procedure confers on federal district courts the authority to make local practice and procedure rules. In general, written requests are required. Failure in this will lead to a refusal for a continuance.
Affidavits outlining the reasons for application of a continuance are usually required to accompany the written request.
Hearing and order for a continuance
A hearing may be held on the issue of the propriety of an application for a continuance. However, there is no absolute requirement that a formal hearing in the matter of a continuance. 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.
It is within the discretion of the court to assign and impose costs for a continuance in a civil case. Extensive case law reviewed. 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.
- 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
- 17 Am Jur 2nd "Continuance", section 1
- State v. Taylor 107 NM 66, 752 P 2nd 781
- 17 Am Jur 2nd "Continuance", section 59
- State v. Saucier 128 NH 291, 512 A 2nd 1120
- March v. State, 105 NM 453, 734 P 2nd 231
- Powell v. State, 39 Ala 246 100, So. 2nd 38, cert den 267 Ala 100, 100 So 2nd 46
- State v. Wilcox, 21 SD 532, 114 NW 687
- 16 ALR 4th 1283
- 17 Am Jur 2nd "Continuance", section 60
- 18 USCS section 3161-3174
- 88 Stat. 2080
- 18 USCS section 3161 (h) (8) (B) (i)
- Idem. at (ii)
- Idem. at (iii)
- Idem (iv)
- United States v. Correia (CA 1 Mass) 531 F 2nd 1095
- 71 ALR Fed 415
- United States v. Rojas-Contreras 474 US 231 (1985)
- 46 ALR Fed 358
- United States v. Marion 404 US 307, 320 (1971)
- Barker v. Wingo, 407 US 514 (1972)
- 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)
- United States v. Loud Hawk 474 US 302 (1986)
- Doggett V. United States 505 US 647 (1992)
- Saltzburg, S. "American Criminal Procedure, Cases and Commentary, Second Edition" West Publishing Co. 1984 p. 948
- Sheppard v. Maxwell, 384 US 333, (1966)
- Rideau v. Louisiana 373 US 723, 727, (1963)
- Irvin v. Dowd, 366, US 717, 718, (1961)
- Durrough v. State 562, SW 2nd 488 (Tex Circuit App. 1978)
- Martinez v. Superior Court, 29 Cal. 3rd 574, 174, Cal Rptr 701, 629, P 2nd 502, (1981)
- Odle v. Superior Court, 32 Cal. 3rd 932, 187 Cal Rptr. 455, 654, P2nd 255, (1982)
- People v. Botham 629, P 2nd 589 Colorado 1981
- Swindler v. State Ark 418, 592 SW 2nd 91 (1991)
- 39 ALR 2nd 1314, section 3
- 17 Am Jur 2nd "Continuance", sections 114-115
- Sheppard v. Maxwell, 384 US 333, 1966
- Saltzburg, S. "American Criminal Procedure, Cases and Commentary", West Publishing Co. 1984, p. 926-934
- 50 ALR 3rd 760, section 14
- State v. Humphreys, Utah, 707 P 2nd 109
- Federal Rules of Procedure 50, Section 50:8
- People v. Leary, 28 Cal 2nd 727, 172 P 2nd 34
- 83 ALR 1349
- 44 ALR 2nd 711
- 42 ALR 2nd 1129, section 3
- 17 Am Jur 2nd "Continuance", section 70
- 13 ALR 147
- 18 ALR 2nd 789
- 17 Am Jur 2nd "Continuance", section 73
- Lopez v. State, 152, Tex Crim 562, 216 SW 2nd 183
- Holt v. United States, CA 8 Mo, 267, F 2nd 497
- Baca v. People 139, Colo, 111, 336, P 2nd 712
- Mixon v. Commonwealth, 282, Ky 25, 137 SW 2nd 710
- Dennis v. United States, 340 US 887, 95 L Ed. 644, 71 S. Ct. 133
- 73 ALR 3rd 725, section 3
- 17 Am Jur 2nd "Continuance", sections 83 et seq
- 17 Am Jur 2nd "Continuance", section 88
- 31 ALR 198
- 17 Am Jur 2nd. Section 98
- Blake v. State, Tex Crim 377, 43 SW 107
- Fagan v. State, 112, Tex Crim 107, 13 SW 2nd 838, later superseded by statute
- Salinas v. State 65 Tex Crim 18, 142 SW 908
- Haggerty v. State 113 Tex Crim 428, 21 SW 298
- Smith v. State 4 Okla Crim 328, 111 P 960
- 85 ALR 2nd 1199
- 66 ALR 360
- 58 ALR 2nd 1141
- 17 Am Jur 2nd "Continuance", sections 103-106
- 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
- Avery v. Alabama 308 US 444, 84 L. Ed. 377, 60 S. Ct. 321
- 52 ALR 2nd 834
- 23 ALR 1378
- 66 ALR 2nd 232
- Freeman v. State 91 Tex. Crim 410, 239, SW 969
- Eastland v. State 223 Miss 115, 78, So 2nd 127
- 66 ALR 2nd 232, section 9
- 49 ALR 2nd 1073
- 48 ALR 2nd 1155
- 67 ALR 2nd 497
- Turner v. Pope Motor Car Co. 79 Ohio St. 53, 86 NE 651
- Harrah v. Margenthau 67 DC 119, 89 F 2nd 863
- Ex Parte Drive 258 Ala 233, 62 So. 2nd 241
- Tucson v. O'Reilly Motor Co. Ariz 168, P 2nd 245
- Knowles v. Blue, 209 Ala 27, 97 So 481
- Vaught v. Rider 83 Va 659, 3 SE 293
- Cohn v. Brownestone 93 Cal 362, 28 P 953
- Price v. Lauve 49 Tex 74
- Krodel v. Houghtaling (CA 4 Va) 468 F 2nd 887, cert den 414 US 829, 38 L Ed. 2nd 64, 94 S. Ct. 57
- 61 ALR 366
- Maupin v. King Tex Civ App 25 SW 2nd 153, writ dism
- Fritsch v. J. M. English Truck Line, Inc. 151 Tex 168, 246 SW 2nd 856
- Kimbell & Mitchell v. Bryan 56 Iowa 632 10 NW 218
- Thurman v. Virgin 57 Ky 785
- Texas & P. R. Co. v. Hall 83 Tex 675, 19 SW 121
- 15 ALR 3rd 1272
- People v. Zentgraf 49 Cal App 226, 193 P 274
- 68 ALR 2nd 470 section 4 (b)
- Maistrosky v. Harvey, Fla App D2 133 So 2nd 103 cert den Fla 138 So 2nd 336
- Epstein v. Insurance Co. of North America, 245 Pa. 132, 91 A 244
- Baumberger v. Arff 96 Cal 261, 31 P 53
- People v. Halfinger 91 Cal App 649, 267 P 366
- Boyd v. Leith Tex Civ App 50 SW 618
- 48 ALR 2nd 1150
- 112 ALR 589
- 68 ALR 2nd 470
- 47 ALR 2nd 1058
- 24 ALR Fed 929
- 6 Am Jur Proof of Facts 434 "Insurance" Proof 2
- 68 ALR 2nd 470, section 10 (b)
- 4 ALR Fed 929
- 68 ALR 2nd 457
- 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
- Cleeland v. Cleeland 249 NC 16, 105 SE 2nd 114
- Stratford v. Stratford 92 NC 297
- Chambers v. Anderson County Dept of Social Services (App) 280 SC 209, 311 SE 2nd 746
- Hays v. Viscome 122 Cal App 2nd 135, 264 P 2nd 173
- 39 ALR 2nd 1435
- Hyman v. Grant 102 Tex 50, 112 SW 1042
- McDougald v. Hulet 132, Cal 154, 64 P 278
- Behan v. Ghio 75 Tex 87, 12 SW 996
- People v. Murray 46 Cal App. 2nd 535, 116 P 2nd 141
- San Antonio Portland Cement Co. v. Gschwender Tex Civ App 191 SW 599
- Harter v. Harter 5 Ohio 318
- Keller v. Cunningham 6 Pa 376
- 17 Am Jur 2nd, section 117
- Rule 83 Federal Rules of Civil Procedure
- 23 ALR 1227
- 68 ALR 2nd 470, section 8
- 67 ALR 2nd 497, sections 5 and 8
- 66 ALR 2nd 267 section 5 (a)
- 66 ALR 2nd 232 section 4
- 47 ALR 2nd 1058 section 6 (b)
- Duncan v. State 89 Okla Crim 325, 207 P 2nd 324
- State v. Kee 238 Kan 342, 711 P 2nd 746
- Alderete v. Mosley Tex Civ App 200 SW 261
- Shock v. Berry, 70 Pa Super 560
- Fidelity Phenix Fire Ins. Co. v. Oliver 25 Tenn App 114, 152 SW 2nd 254
- 7 AM Jur Pl & Pr Forms (Rev), "Continuance", Form 183
- 17 Am Jur 2nd "Continuance", section 131
- Clough v. Troutman (App Summit Co) 29 Ohio L Abs 262
- Dudley v. Witter, 51 Ala 456 overruled on other grounds