Word of the Week - Monday 2nd May 2011

Monday 25^th April 2011 – Continuance

This week’s Word of the Week is ‘Continuance’...

In American procedural law, a continuance is 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 sua sponte. 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 when the court deems it necessary and prudent in the "interest of justice.

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.^[1]

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.^[2][3]

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.^[4][5]

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) ^[6]

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.^[7]"

--          Wikipedia

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