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Pursuing a Continuance in a California Court

By San Diego Attorney on August 19, 2020

Judges have the discretion to grant or deny a request for continuance (rescheduling) of a court hearing to give either party additional time to prepare. As a general rule, judges in California frown on delaying the resolution of a case by requesting a continuance without a valid reason. Judges must balance the public interest in timely justice with fairness to the parties involved. However, there is still the possibility for a defendant to receive a continuance if their argument is presented properly and with strong legal counsel.

When Should a Continuance Be Requested?

When a continuance is needed, the request must be submitted to the court as far in advance of the scheduled hearing as possible. A judge can more easily accommodate earlier requests because the opportunity still exists to allocate resources to other cases. If the request comes only days before or on the same day a hearing is scheduled, it is much less likely to be granted except in emergency circumstances. Parties have a right to be heard and a right to prepare for a case. A delay may adversely affect other parties or the public interest in the efficient administration of justice. For example, if the prosecution delays a trial unreasonably to its advantage, it violates the defendant’s Sixth Amendment right to a speedy trial.

How Does Diligence Affect a Request for Continuance?

Diligence is one of the main factors judges consider in determining whether to grant a continuance. If the defendant and their counsel have done everything reasonably and dedicated sufficient effort to the matter, then the judge is more likely to grant a request. Exercising diligence means being active in issuing subpoenas, interviewing witnesses, reviewing evidence, and testing forensics. The defendant must also be conscientious about hiring an attorney or notifying the court of any problems with existing counsel.

What Are Some Valid Reasons for Changing a Court Hearing Date?

In addition to diligence, a judge will also factor in the unique circumstances for the request. Requests that are often accepted include:

  • Insufficient time to prepare: Each party must be given enough time to investigate the facts of the case, interview witnesses, review evidence, and negotiate a plea agreement, if possible. Defense attorneys also need time to meet with their clients. When defense counsel does not have enough time to prepare and is, therefore, less effective in representing the client, it violates the defendant’s Sixth Amendment right to counsel.
  • Replacing counsel: Defendants also have a right to legal counsel of their choosing under the Sixth Amendment. When a defendant fires his current attorney and hires a new one, a continuance may be requested to give replacement counsel time to prepare.
  • Surprise evidence or witnesses: If a new witness or new evidence is revealed to the defense by the prosecution on a date too close to the trial, the defense will likely be granted a continuance to review the new evidence and reevaluate its case strategy. In addition, the same request for a continuance can occur by the prosecution if the defense presents new evidence.
  • Absent witnesses: If a key witness in the defense’s case is unexpectedly absent, the judge may grant the defense counsel additional time to get the witness into court.
  • Surprise testimony: If a witness for the prosecution makes a statement in a trial that was not previously stated or that contradicts previous statements, the judge is likely to grant a continuance to review the situation. The defense will need to show that the surprise testimony was not and should not have been anticipated, and that the defense wants to and will present evidence to counter that testimony within a reasonable time.

Receiving a continuance is not an easy task, but with the right defense attorney, you may have a shot. But you will want to discuss your case with an experienced San Diego criminal defense attorney as early as possible to build the best case. That is why you should not hesitate to contact jD LAW. Our lead attorney is a former LAPD investigator with extensive experience protecting his clients’ rights in San Diego County and can use all his knowledge and skill to advocate for a continuance. Call us at (760) 630-2000 for outstanding criminal defense in San Diego.

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Posted in: Criminal Defense

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James N. Dicks
jD LAW, P.C.

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