How to Continue a Criminal Trial

As Grace Slick once sang "A fair trial is no trial at all" and sometimes continuing a criminal trial is absolutely necessary to ensure that you can fully present your defense.  Prosecutors will often push trials forward to gain an advantage and they will cite victim's rights, loss of evidence and other factors to oppose your right to a fair trial.  In California, under Penal Code §1050, a continuance in a criminal proceeding can be granted only upon a showing of good cause. The statute emphasizes the need to expedite criminal
proceedings to avoid congestion and hardship to victims and witnesses, and it explicitly states that continuances should be granted only when necessary and justified by competent evidence.
 

Due Process Can Force a Continuance

Lack of preparation by defense counsel can be considered good cause for a continuance if it results in a denial of the defendant's right to effective assistance of counsel. The California
courts have recognized that forcing a defendant to trial without adequate preparation time can violate due process and the right to counsel. As the Supreme Court observed in People v.
Maddox (1967) 67 Cal.2d 647 the policy to expedite trials, “however commendable in intent, does not transcend any of the basic elements of due process of law.” Maddox at 655

A detailed declaration can be prepared by defense counsel that explains the state of the defense preparation and the reasons that additional time is needed.  This declaration does not have to be public.  It can be presented to the court "under seal" or even presented orally in chambers without the prosecution present.

Contents of Continuance Declaration

It is best when the declaration cites specific evidence and areas of inquiry necessary to obtain a continuance.  If key records are under subpoena and that subpoena is being opposed, the absence of the records at trial is a genuine basis to continue.  If the prosecution has delayed or failed to produce required materials that is a key factor to put in the motion.

The defendant and their counsel should demonstrate that they have used due diligence and all reasonable efforts to prepare for trial.  See: People v. Johnson, 5 Cal.App.3d 851 (1970) If the delay is the fault of defense counsel a basic explanation should be provided such as "I apologize but I had another trial ...." The attorney may take some heat but the defendant’s constitutional rights are protected as attorney error should not be held against a criminal defendant if that error could result in an unfair conviction.

Brady Violations

A court must delay a trial if a genuine Brady violation has prevented the defense from properly preparing for trial. In People v Williams 58 Cal 4th 197 the Supreme Court said:

The prosecution is obligated to disclose favorable and material evidence “whether the defendant makes a specific request [citation], a general request, or none at all [citation].” (In re Brown (1998) 17 Cal.4th 873, 879, 72 Cal.Rptr.2d 698, 952 P.2d 715.) “The scope of [the prosecution's] disclosure obligation extends beyond the contents of the prosecutor's case file and encompasses the duty to ascertain as well as divulge ‘any favorable evidence known to the others acting on the government's behalf....’ [Citation.]” (Ibid.) A determination that the prosecution improperly withheld material information requires reversal without further harmless error analysis. (Kyles v. Whitley, supra, 514 U.S. at p. 435, 115 S.Ct. 1555; People v. Zambrano, supra, at p. 1133, 63 Cal.Rptr.3d 297, 163 P.3d 4.)

A trial can't proceed when a Brady violation exists because by definition this is a violation that affects the fundamental fairness of a trial.

Is there Really a Speedy Trial Right?

In reality very few cases are ready for trial within 60 days of the not guilty plea (in a felony case).  We are posting with this blog Daniel Horowitz' video explaining why there rarely a true "speedy trial".

Daniel Horowitz is a California CERTIFIED CRIMINAL DEFENSE SPECIALIST. He is certified by the State Bar of California Board of Legal Specialization.  For the best criminal defense an experienced criminal defense lawyer is the right place to start.  Contact our office if you need help.