Criminal Trial Continuances

Once a defendant has been formally charged with a criminal offense, the case will proceed to the criminal trial phase, unless the defendant pleads guilty. In general, the four phases of criminal trials include:

• Pretrial motions;
• Trial;
• Sentencing; and
• Appeals.

What Is a Criminal Trial?

A criminal trial is a process provided to individuals who are charged with crimes. During a criminal trial, the trier of fact, the judge or jury, will determine whether or not the defendant committed the crime.

The standard of proof used in criminal cases is beyond a reasonable doubt. This means that no reasonable doubt exists in the minds of the judge or jurors that the defendant committed the crime.

Some examples of this standard will use a percentage, such as 98% or 99% to demonstrate the amount of certainty required. Criminal trials include the following phases:

• Jury selection: A pool, or group, of potential jurors is gathered and are asked questions;
  • The prosecution and defense can exclude a certain number of individuals from the jury based on their answers to the questions asked;
• Opening statements: Each side will present an overview of the case from their perspective at the beginning;
  • The prosecution typically goes first, followed by the defense;
• Witness testimony: Each side calls witnesses and asks them questions about the case or the defendant;
  • The prosecution calls their witnesses, who can then be cross examined by the defense; and
  • The defense then calls their witnesses, who can then be cross examined by the prosecution;
• Closing arguments: The prosecution then the defense will make a brief statement that summarizes their side of the case;
• Jury instruction: The judge explains to the jurors the criminal offense that the defendant was charged with and the legal standards that they must apply when determining whether the defendant is guilty or not guilty of committing that crime; and
• Verdict: The jury deliberates on the evidence that was presented by both sides then applies the proper legal standard and determines whether the defendant is guilty or not guilty;
  • In most states, a criminal verdict is required to be from a unanimous jury.

What Is a Continuance in a Criminal Trial?

Continuances in a criminal trial are formal delays of the trial that may be requested by either side, before or during the trial. For example, if one party is having a difficult time finding an important witness, they may ask for a continuance to give themselves more time.

In general, a continuance request must be based on an important issue and not a trivial one. Neither side is permitted to excessively postpone the trial, especially the prosecution.

A party requesting a continuance and a party receiving one are two very different things. It is important for the requesting party to have a good reason behind the request because the judge will be expecting one.

The judge, however, also has the right to reject the request, no matter how the evidence is presented. Because of this, it is important for the parties not to fully rely on the continuance and to be prepared to make it to trial as planned.

How Is a Continuance Obtained?

Continuances are obtained by filing a motion for continuance with the court in which the trial is occurring. This motion is a formal, written request that asks the court to delay or suspend the trial.

This motion states the reason for the request. The judge will review the request and announce their decision in court.

It is important to note that this type of motion as well as other filings related to the case must include service with a summons.

What Are Some Good Reasons for a Continuance?

There are many good court continuance reasons that may arise during a trial. There are numerous reasons why either the prosecution or the defense may request a continuance, including, but not limited to:

• 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 example, if the state is now alleging that the crime took place on a different date, then the defendant would need more time to prepare their alibi evidence;
• New evidence or witnesses: If a new witness or evidence comes to light the day before a trial, it may warrant a continuance. In addition, if a witness goes missing, it 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 example, if a defendant intentionally stalled in getting a new lawyer, or if they fail to explain why a new attorney is necessary, the judge most likely will not grant the continuance; and
• Required by law: A continuance is required by law if the defendant was not arrested or served with a summons;
  • It is also required in cases where the court’s schedule does not allow enough time for the entire trial to take place.

When a party is requesting a continuance, it must come with a detailed explanation as to why the motion is being filed. Failure to do so will most likely result in the judge denying the request.

If the requesting party shows diligence that they have done everything reasonably possible 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 arises from a lack of diligence by the requesting party may result in a denial of the request for continuance. For example, if defense counsel requested the continuance because they missed a window of opportunity for finding evidence or were negligent in the process, then it is unlikely that their request will be granted.

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

How Many Continuances Are Allowed in a Court Case?

Typically, there are no limits on the number of continuances that a defendant may request. However, the court will not look favorably upon repeated requests for continuances, especially if they appear to be delay tactics.

Repeated requests that are made without good cause will be denied. In attention, the court can also reprimand the lawyer making the requests.

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

If you are involved in a criminal trial and you need a continuance, it is important to consult with a criminal lawyer as soon as possible. Your lawyer can file a motion to continue on your behalf, help present your case, and represent your best interests in court.

Your lawyer is best trained and equipped to file a proper motion to continue that includes a good reason and a persuasive argument that the court can accept. Failure to have the assistance of a lawyer may be detrimental to your case if you are unable to locate important evidence or witnesses due to time constraints.