Trial Procedures: What Is a ‘Continuance’ And How Does It Work?

In any Criminal Case there are courtroom procedures that take place at each court date. From motions, to discovery, to negotiations, many things can occur before a case is resolved. One of the more common procedures is the ‘Continuance.’ A continuance is simply a request for a new court date. Though this may seem like a simple concept, in fact it can become complicated in how it is request, whether it is granted, who grants it, why it is granted, and how it can be used to your advantage. The following article will cover this courtroom procedure to better explain this important, though often overlooked, trial function.

First, as mentioned before, a continuance is a request for a new court date regarding that particular case. If granted, the court date is normally set out four to six weeks. A continuance can be granted by the Prosecutor or the Judge, depending on the Jurisdiction. In criminal cases, either the State or the Defendant can request a continuance. If the Defendant is requesting the continuance, this is normally done during at the start of court for that day, during the ‘calender call.’ The Defendant or their attorney will answer up, when their name is called, by stating “continuance” or “motion” to let the Prosecutor they are requesting a continuance. If the Prosecutor is requesting the continuance, they may request that the Defendant simply consent to it, at which point they will either continue the case themselves or request a Judge to grant the continuance. If the Defendant is requesting the continuance, the Prosecutor may grant their request and enter the continuance themselves, or they may put it in front of the Judge. This will vary by Jurisdiction as some more serious offenses may require a Judge’s consent where lower level offenses can be continued by the Prosecutor. The court paperwork should, keep track of who is requesting the continuance so that no party is given an advantage by having ‘unlimited’ continuances at their disposal.

When a continuance is granted can vary widely. In any given jurisdiction, each side will have a limited number of continuances they are permitted to use. This normally can vary, not only by jurisdiction, but also by Judge. Early on in the case, a continuance will likely be granted for little or no reason other than that party wants more time to prepared. As the case drags out, the Prosecutor (in the case of a Defendant’s request for a continuance) or the Judge may want a more specific reason as to why they should grant the continuance. Normally, in these situations, if a witness is not available, or evidence has yet to be procured, the continuance will be granted. As each party starts to use up their continuances, they will get more pressure to resolve the case. Normally, towards the end of that sides continuances, a Judge will have the paperwork marked as “last,” meaning that he is granting the continuance that day, but at the next court date, that side better be prepared to resolve the case that day. If both parties have dragged the case out, the Judge may have it marked “Last for All” meaning on the next court date, the case will be plead, tried, or dismissed.

For Criminal Defendants, a continuance can end up working to their benefit. Though no party is permitted to ask for a continuance just to delay the case or to frustrate the criminal justice system, legitimate requests for continuances in order to prepare for the case or to obtain evidence or a witness are permitted. During the delays in the case, the State’s witnesses may miss a court date. Since most State witnesses are Police Officers, this could be cause by a relocation, loss of job, quitting, training, etc. If the State loses a key witness to the case, they will have trouble proceeding with the trial. Additionally, even if the witness is still available, their memory of the events may not be as strong as they were immediately after the supposed crime. Again, this article is not advocating delaying a case for the sole purpose of obstructing justice, it is simply observing the fact that delays, inherent in criminal justice, can lead to benefits to the Defendant.

For advice on your particular criminal matter, speak with a local Criminal Attorney.

As a Raleigh Criminal Attorney and Raleigh DWI Attorney, I have had many and varied experiences in the world of Criminal Justice. I have experience on both sides of the ‘isle,’ as I have been both a Criminal Defense Attorney as well as an Assistant District Attorney.
Early in my days at North Carolina Central University School of Law, I developed an interested in Criminal Law. Specifically, how the system relies on the majority of the public not having a well rounded understanding of the laws and the Justice System used to enforce them. For that reason, I have pursued my interested into a career as a Criminal Defense Attorney working out of Raleigh, North Carolina. I opened my own law firm, Matheson Law Office, with the intention of being one of Raleigh’s top Criminal Defense Attorneys.

Disclaimer – Information and advice offered in this article is for informational and educational

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