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CONTINUANCES DURING TRIAL 

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.

Once a trial has begun, the most common ground for a continuance is surprise. A motion for a continuance should be made promptly upon either counsel's learning of the surprise. The motion for a continuance based on surprise is usually made in writing. However, the motion may be made orally in open court.

Surprise during a trial is based on prejudice that results from an unforeseen event. The party who is seeking a continuance based on surprise must show that the event could not have been anticipated by the exercise of reasonable diligence and that the surprise is so great that a fair trial would not occur.

Defense counsel has a heavy burden of investigation when he or she attempts to show that an event could not have been anticipated by the exercise of reasonable diligence. For example, if a witness testifies that a defendant was the perpetrator of a crime, and the witness did not inform the defense counsel of this fact prior to trial, the defense counsel must show that the witness's testimony could not have been anticipated. The defense counsel must show this by evidence that is independent from the defense counsel's own testimony. If the defense counsel could have anticipated the event by reasonable investigation, the fact that the defense counsel did not conduct the investigation will be weighed heavily against the defense counsel. However, if a material witness becomes ill during the course of a trial, a trial court will likely grant a continuance based on surprise.

The most common type of surprise during a trial is when a witness for the prosecution changes his or her testimony. In order to obtain a continuance based on the witness's testimony, the prosecution should present the witness's original statement and should show the reasons why the prosecution anticipated that the witness would testify in accordance with his or her statement. The prosecution may testify in this regard or the prosecution may present the testimony of an investigator who interviewed the witness or may present any written statements by the witness.

Surprise during a trial is also based on the fact that a defendant will be deprived of a fair trial if his or her counsel is not given time to investigate the surprise.

In addition to showing surprise, counsel must show that the unforeseen event is prejudicial to a defendant, that an adjournment or a postponement of the trial is required in order to counter the surprise, and that there is a reasonably likelihood that the defendant will benefit from the continuance.

A motion for a continuance during a trial based on surprise should be heard by a trial judge outside the presence of a jury.

A trial court has discretion to grant or to deny a motion for a continuance during a trial based on surprise.

Copyright 2009 LexisNexis, a division of Reed Elsevier Inc.

 

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