A continuance in a criminal trial is a formal delay of the trial that can be requested by either side, before or during the trial. For instance, if one side is having a hard time tracking down an important witness, they may wish to ask for a continuance to give themselves more time.

Generally, the request must be based on an important issue and not something trivial, and neither side is allowed to excessively postpone the trial, especially the prosecution. Requesting a continuance and receiving one are two very different things; it is important to have a good reason behind the request because it is a good reason the judge will expect.

However the judge has the right to reject the request, no matter how you present the evidence. So it is important to not fully rely on the continuance, and be prepared to make it to trial as planned.

How is a Continuance Obtained?

A continuance is obtained by filing a motion for a continuance with the court. This is a formal, written request that is asking the court to delay or suspend the trial, and it states the reason for the request. The judge will go over the request and announce their decision in court.

What are Some Valid Reasons for a Continuance?

There are many reasons why either the prosecution or the defense will request a continuance, including:

  • Insufficient Time to Prepare: If either the prosecution or the defense feels inadequately prepared for trial, the judge will consider various factors leading up to the motion for a continuance, such as the amount of witnesses, lab testing, and the counsel’s health.
  • Changes to the Indictment that May Compromise the Defendant’s Case: For instance, if the state is now alleging that the crime took place on a different date, then the defendant would need more time to prepare an alibi.
  • New Evidence or Witnesses: If a new witness comes to light the day before trial, it may warrant a continuance, or if a witness goes missing, this may also warrant a continuance. New evidence that supports the prosecution, or that is significant enough that the defense would need more time to prepare, may also warrant a continuance.
  • New Counsel: If the defendant is requesting a new lawyer, the judge will take into consideration several factors. For instance, if the defendant intentionally stalled in getting a new lawyer, or if he fails to explain why a new attorney is necessary, the judge most likely will not grant a continuance.
  • Required by Law: If the defendant was not arrested or served with a summons, a continuance is required by law. It is also required in cases that the court’s schedule does not allow enough time for the entire trial to take place.

There are several situations that may call for a continuance, and each one must come with a detailed explanation as to why the motion is being filed. Failure to do so will most likely end with the judge rejecting the request. Showing diligence that the requesting party has done everything reasonable leading up the motion will go a long way with the judge.

What Reason Will Be Less Likely to Result in a Continuance?

Typically any reason that comes from lack of diligence by the requesting party can result in a request for continuance to be denied. For example, if the defense counsel requested it and are requesting it because they missed a window of opportunity for finding evidence or were negligent in the process, then it is unlikely that a continuance will be granted.

It’s important for your lawyer to be keep in mind all the factors, to be aware of the details of your case, and remember all of the deadlines for filing motions/paperwork. If your lawyer makes a mistake, then you cannot rely on a continuance to fix their error.

Do I Need a Lawyer for a Continuance in a Criminal Trial?

If you are facing criminal charges and need a continuance, you should speak with a criminal lawyer immediately. An experienced lawyer will file motions on your behalf, help assemble your case, and represent your best interests in court.