A continuance is an adjournment or a postponement of a case. A continuance may be sought by either the prosecution or the defense in a criminal case. The continuance may be sought before a trial or during the trial.

In order to obtain a pretrial continuance, either the prosecution or the defense must file a motion for a continuance. Most states require the motion to be in writing and to be sworn by the party filing the motion. However, oral motions may be granted if the parties agree to the continuance in open court or if a trial court deems that the motion should be granted in the exercise of its discretion.

The reasons for a pretrial continuance must be fully set forth in a motion for a continuance. The motion must also set forth the facts that support the motion.

A pretrial motion for a continuance may be filed at a defendant's pretrial hearing or at any time before the defendant announces that he or she is ready for trial.

A pretrial continuance may be granted for several reasons. Some of the reasons are: (1) inadequate time to prepare; (2) conflicting obligations of counsel; (3) inflamed public sentiment; (4) illness; (5) legislative continuance; (6) a missing witness; (7) an agreement between the parties; (8) operation of law; (9) or religious holidays.

Counsel for the prosecution or counsel for the defense may be entitled to a pretrial continuance if he or she can show that he or she has not had enough time to adequately prepare for a trial. Factors that are considered in accordance with such a motion include the amount of time between the retention of counsel and the trial date, the counsel's other obligations, the counsel's health, and the complexity of a case. However, either counsel has a heavy burden to show that his or her preparation time was inadequate. A court-appointed attorney is normally granted a certain number of days from the date of his or her appointment to prepare for the trial. A trial court has discretion to grant or to deny a continuance on this ground.

Counsel for the prosecution or the defense may be entitled to a pretrial continuance if he or she can show that he or she has conflicting obligations and that he or she will be unavailable for a trial. However, sufficient cause must be shown. A trial court may require either party to obtain substitute counsel. A trial court has discretion to grant or to deny a continuance on this ground.

Counsel for the prosecution or a defendant may be entitled to a pretrial continuance if he or she can show that there is inflamed public sentiment and that the defendant's right to a fair trial may be denied as a result of pretrial publicity. A trial court has discretion to grant or to deny a continuance on this ground.

A pretrial continuance on the basis of illness may be the result of a defendant's illness, the defense counsel's illness, or the prosecutor's illness. The defendant must show that his or her illness will diminish his or her ability to assist his or her counsel. The defendant usually submits affidavits that are signed by his or her physician. Either counsel's illness may be presented to a trial court based on the counsel's own testimony. Either counsel must show that no substitute counsel is available. A trial court has discretion to grant or to deny a continuance on this ground.

In some states, if a defendant's counsel is a member of a state legislature, the counsel may obtain a pretrial continuance for periods during which the state legislature is in session. A trial court does not have discretion to deny a continuance on this ground. The granting of a legislative continuance is considered to be a ministerial duty and not a discretionary duty. If the trial court refuses to grant the continuance on this ground, counsel may file an application for a writ of mandamus, which writ will compel the trial court to grant the continuance.

A defendant may obtain a pretrial continuance if a defense witness is missing and will be unavailable for trial. However, the defendant must provide the name and address of the witness and must show that he or she exercised due diligence in attempting to secure the attendance of the witness, that the testimony of the witness will be material, that he or she did not cause the absence of the witness, that the motion is not being made for the purpose of a delay, and that there is no reasonable expectation that the witness will become available for trial. A trial court has discretion to grant or to deny a continuance on this ground.

A pretrial continuance may be obtained if both the prosecution and the defense agree to the continuance in open court and if good cause is shown. A continuance by agreement is normally granted for only as long as necessary. A trial court has discretion to grant or to deny a continuance on this ground.


A trial court does not have discretion to deny a pretrial continuance if the continuance occurs by operation of law. A continuance occurs by operation of law when a defendant has not been arrested, when a defendant that is a corporation or an association has not been served with a summons, or when there would not be sufficient time during the trial court's term to complete the trial.

Counsel for the prosecution or counsel for the defense may obtain a pretrial continuance if he or she is required to appear in court on a religious holiday, which holiday is observed by that particular counsel. A trial court does not have discretion to deny the continuance on this ground.


Copyright 2006 LexisNexis, a division of Reed Elsevier Inc.