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.
In some cases, 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 provide grounds for reversal.
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] Once accused of a crime, the prosecutor has a right to a reasonable opportunity to secure the personal attendance 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] 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.
[10][11] Factors considered by the courts within the Speedy Trial Act are: The result of this law has been that many continuances previously issued have been denied.
[8][19] 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.
The question becomes: does the excessive coverage, including editorial speculation, so color the potential jury pool that a fair trial cannot be had?
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 the famous 1966 Sam Sheppard case, (Sheppard v. Maxwell)[27] 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.
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 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.
[33] A more typical finding is seen in Swindler v. State,[34] a 1991 case from Arkansas that 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.
The case had been subjected to a large amount of pre-trial news coverage and widespread speculation about Sheppard's guilt.
[39] Continuances are traditionally granted to allow the defendant additional time for procuring an absent witness, or other evidence necessary for the defense or the prosecution of the applicant's case.
[76] 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.
An affidavit for continuance that 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.
[88] 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.
[92][93][94][95] 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.
[115] 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.
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.