Dictionary Definition
continuance
Noun
1 the act of continuing an activity without
interruption [syn: continuation] [ant:
discontinuance,
discontinuance]
2 the period of time during which something
continues [syn: duration]
3 the property of enduring or continuing in time
[syn: duration]
User Contributed Dictionary
English
Noun
- The action of continuing.
Extensive Definition
Continuance is a United
States legal term meaning 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 without consulting them. 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 where the court deems it necessary and
prudent in the "interest of justice."
Continuances in criminal cases
In general
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 all 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. There are some cases in
which a 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 be the 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 be afforded
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.
The result of this law has been that many
continuances previously issued have been denied.
Unless the defendant consents in writing to the
contrary, a trial may not commence less that 30 days from the date
on which the defendant first appears through counsel or expressly
waives counsel or elects to proceed pro se (without a
lawyer). General case law of the Speedy Trial Act is
discussed.
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.
In the 1992 case of Doggett v. United States the
United States Supreme Court considered an 8 1/2 year delay between
indictment and criminal trial to be excessive.
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. In
order 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.
In the 1982 California case of Odle v. Superior
Court the California Supreme Court did not find there had been any
reasonable likelihood of prejudice from pretrial publicity.
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 which 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.
Change of venue requests, choice of a new venue
and where the new venue is sought because of local prejudice varies
in different jurisdictions. General case law is discussed.
Absence of witness or evidence
Continuances are traditionally granted to allow
the defendant additional time for procuring an absent witness, or
other evidence which is necessary for the defense or the
prosecution of the applicant's case.
Several factors are to be 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
In order to obtain a continuance on the basis of absence of counsel in a criminal trial, the defendant must show that the absence was attributable to some unforeseeable cause.When the absence of counsel is caused by an act
or omission of the defendant, a continuance may be properly
denied.
The Supreme Court of the United States will not
postpone argument for the purpose of giving a famous counsel an
opportunity to appear for a party adequately represented by other
able counsel.
Discreton 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 legitimate difference of opinion in trial
tactics between the defendant and counsel (lawyer) can be a reason
for dismissing the lawyer in a criminal case, and the seeking of a
continuance.
A continuance may be granted if the counsel is
legitimately engaged in another professional proceeding.
Surprise
A continuance may be granted in a criminal case
where matters arise which could not have been reasonably
anticipated. A continuance should have been granted where there
were depositions with information tending to create an alibi for
the accused which had been suppressed.
If the defendant has been deceived by the state
in a criminal action, a continuance can be granted.
A continuance can be granted if there is an
amendment to the indictment or introduction of new information in
the criminal complaint.
A continuance may be granted because there has
been unexpected evidence or testimony. This includes additional
witnesses not named in the original indictment, or unaticipated
testimony of witnesses, such as major differences of fact from
deposition and trial. Minor differences in testimony do not
constitute surprise.
Other grounds
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 conviction may be reversed if, in the
discretion of the court, the accused was not given an adequate time
to prepare a defense, and this was material in depriving the
accused of a fair trial.
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 in a better condition, and denied the continuance.
There has been opposite opinion where a
continuance was allowed, and any question of a prospective
improvement in the defendant was not the test and irrelevant.
A continuance is proper when the accused is
unable to assist counsel because of mental illness.
Continuances in civil cases
The absence of counsel is a recognized ground for
continuance of a civil case, and is in the discretion of the court
to grant or deny.
Illness, death or withdrawal of counsel in civil
cases are also resaons for granting a continuance.
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 which 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.
In order to justify a continuance of a civil case
due to the absence of evidence, the missing evidence must be shown
to have relevance to the case.
The missing evidence must be material to some
issue in the case.
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.
In some jurisdictions, the issuance of a subpoena
is evidence of due diligence.
In many jurisdictions the service of a subpoena
by itself, is insufficient to entitle a party to a continuance
because of the absence of a witness.
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.
A continuance in a civil case can be granted
because of the death or illness of a party to the action.
Absence or incapacity of counsel
The absence of counsel is a recognized ground for continuance of a civil case.A court is not required to grant a postponement
merely because a party's attorney is absent.
The court may require that the party seeking the
continuance to show the reasons that the counsel is absent.
Absence of party
The absence of a party may be grounds for a
continuance of a civil case. Factors considered legitimate in an
absence are illness or disability.
It must be determined by the court whether the
absence of a party or witness is material to the case, and whether
there have been prior continuances or delays.
Absence because of voluntary intoxication is not
a proper reason to continue a civil case. Absence because of mental
illness may or may not be a legitimate reason for a continuance of
a civil trial.
Surprise
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.
Other grounds
A continuance may be granted because more time is needed to prepare for trial.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.
Procedure
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.A continuance is a judicial act and takes a
judicial act to overturn it.
It is within the discretion of the court to
assign and impose costs for a continuance in a civil case.
Extensive case alw 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.
References
See also
Synonyms, Antonyms and Related Words
PS,
Parthian shot, abidingness, addendum, afterthought, age, antiquity, appendix, back matter, ceaselessness, chorus, coda, codicil, coeternity, colophon, conclusion, consequence, constancy, continualness, continuation, defeat of
time, defiance of time, diuturnity, double take,
durability, durableness, duration, dying words, endlessness, endurance, envoi, epilogue, eternalness, eternity, ever-duringness,
everlastingness,
everness,
follow-through, follow-up, foreverness, immutability, incessancy, indestructibility,
infinite duration, infinity, interminability, last
words, lastingness,
long standing, long-lastingness, long-livedness, longevity, maintenance,
never-endingness, parting shot, perdurability, perennation, perenniality, perennialness, permanence, peroration, perpetualness, perpetuity, persistence, postface, postfix, postlude, postscript, refrain, run, second thought, sempiternity, sequel, sequela, sequelae, sequelant, sequent, sequitur, stability, standing, steadfastness, subscript, suffix, supplement, survival, survivance, swan song,
tag, timelessness, unceasingness