Judges may grant continuances in criminal cases, but only when a party shows good cause for needing the delay. Delays in bringing a criminal case swiftly to trial are generally disfavored. In the United States, a criminal defendant has a constitutional right to a speedy trial under the Sixth Amendment. Speedy trial protections aim to ensure a fair trial and limit pretrial incarceration of still innocent defendants. But still, other factors—such as time to adequately prepare a defense—might justify a delay.
This article will review how a party asks to push back a court date, what reasons might justify a continuance, when a judge might deny a request, and whether a party has any remedies if denied a continuance.
What Is a Continuance?
A continuance in a criminal case allows a party extra time to prepare for a hearing or trial. A party can ask for a continuance any time before trial, beginning with the defendant’s first appearance (sometimes called an arraignment), during the trial, and after trial, up to and including the sentencing hearing.
But know that the law frowns on delays, especially in criminal cases. So, the requesting party must have a good explanation when submitting a motion for continuance.
What Is a Motion for Continuance?
The prosecutor or defense attorney usually makes the request formally, in advance of the hearing or trial, by filing a motion for a continuance with the court and notifying the other side of the request. The party's motion must explain:
- why the delay is necessary
- what amount of time is needed, and
- what good cause exists for making the request.
It’s up to the judge to decide whether to grant or deny the motion.
What Is Good Cause?
A judge will review all the facts of the motion and case when deciding whether “good cause” exists for a continuance. The definition of good cause varies from allowing scheduling changes for the convenience of the parties and witnesses to ensuring a fair trial where both parties have adequate time to prepare.
If the factors necessitating a delay were beyond a party’s control, it’s more likely the judge will find good cause and grant the motion. For instance, if a witness gets sick or one of the attorneys has a medical emergency, the parties couldn’t have prevented these circumstances.
However, if a party’s actions caused the circumstances, the judge would likely deny the continuance. Say a defendant procrastinates in turning over a witness’s name and address and the witness moves. The judge may deny a motion for additional time to locate the witness because the defendant could have prevented the problem.
How Long Is a Continuance?
The length of the continuance depends on the situation and generally can be no longer than is “necessary.” A defendant might ask for several months to prepare for trial. But if a witness gets sick, a continuance of a few days might suffice. Locating a witness or video of the crime could justify a few weeks’ continuance, as could needing to replace counsel.
Ultimately, it’s up to the judge to evaluate all the circumstances underlying the request and make sure the delay doesn’t trample on the defendant’s rights or the interests of the government, witnesses, and victims. For certain motions, state law might limit the length of the continuance.
How Many Continuances Are Allowed?
Typically, there’s no limit on the number of continuances that a defendant can request. That said, a judge won’t look favorably on repeated requests, especially if they appear to be delay tactics. Repeated requests, made without good cause, will be denied. (The judge could also reprimand the lawyer.)
Prosecutors tend to face more limitations when it comes to continuances—primarily due to a defendant's speedy trial rights, as a violation can result in dismissal of the case. Also, some states limit the number of continuances a prosecutor can get in light of protecting victims. For instance, California law allows only one 10-day continuance for the prosecution in stalking, hate crimes, and career criminal cases. (Cal. Penal Code § 1050 (2022).)
Asking for a Continuance on the Day of a Hearing or Trial
A party may make a motion on the day of the hearing or trial, but this request can be an uphill battle. If the party’s procrastination resulted in this last-minute request, the judge will likely deny the motion because the party’s delay inconveniences numerous people—the attorneys, witnesses, victims, and others. But, a last-minute surprise not caused by the party may justify granting the continuance. For instance, the attorney can’t anticipate their witness getting into a car accident on the way to the courthouse. Also, if it's a first appearance and the defendant hasn't found counsel, the judge will usually grant a continuance so the defendant can hire an attorney.
Reasons Defendants Ask for Continuances
Defendants often ask judges to continue a hearing or a trial for one or more of the following reasons.
Find an Attorney
Judges will typically grant defendants’ requests to postpone initial court proceedings—such as an arraignment, first appearance, or preliminary hearing—to give them time to hire a lawyer. These requests are usually granted but not indefinitely. If the judge gives the defendant a reasonable amount of time to hire a lawyer but the defendant doesn't do so, the court might go ahead and appoint the public defender or other court-appointed counsel and schedule the hearing in short order.
Prepare for Trial
A defendant has a right to adequately prepare their defense for trial (which includes the right of counsel to prepare). Defendants and their counsel can ask the trial court to push out the trial date, but they 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).
Find or 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.
Illness or Accident
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. 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.
Find and Hire a New Attorney
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.
Adverse Pretrial 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, the effect of pretrial publicity can be mitigated in other ways, such as a change of venue (switching locations) or an instruction to jurors to disregard such publicity.
Reasons Prosecutors Ask for Continuances
Typical reasons advanced by prosecutors for continuances include having another trial or other court matter in progress or needing time to prepare for a sensitive, complex trial (such as child sexual abuse cases). But even here, the length of the continuance will typically be short. Asking for a continuance on the grounds that the prosecutor is not prepared is typically a non-starter. But similar to a defendant’s reasons for seeking continuances, a prosecutor might ask for more time to find and subpoena a witness, allow a witness to recover from an illness, or review certain new evidence.
Prosecutors have more restrictions when it comes to continuances. They must bring a case to trial within the speedy trial window unless the defendant has “waived time.” Waiving time means the defendant gives up their speedy trial protections. But if the defendant refuses to waive time in response to the prosecutor’s request for a continuance, the case can be dismissed.
What Happens If the Judge Denies the Continuance?
Judges are normally very careful to document the evidence offered in support of the motion for a continuance and their reasons for granting or denying it. When they’ve denied a motion by the defense or prosecutor, do either have recourse?
When criminal defendants lose motions at trial, most of the time they have to finish the trial and then challenge the loss by filing an appeal in the next higher court, the one that hears appeals. Occasionally, mid-trial losses can be challenged right away, and the denial of a motion to continue is one of these in many states. In fact, even the prosecution can challenge a denial of its request for a continuance. The parties file what’s known as a “writ,” asking the higher court to review the evidence and the reasons given by the trial court for its denial. Most of the time, the lower court’s ruling is undisturbed, unless the higher court finds that it is unsupported by the evidence or due to flagrant abuse of discretion.
Talk to Your Attorney
Your criminal defense attorney will be your best resource when it comes to whether a continuance might be granted. Find tips in this article on how to work effectively with your lawyer.