CHAPTER 23

CONTINUANCES

§ 23.01 Formal Requirements

§ 23.02 Trial Court Discretion

§ 23.03 Limits on Trial Court Discretion - Statutory Limits

§ 23.04 - Constitutional Limits

§ 23.01

Formal Requirements

V.R.Cr.P. 50 governs continuances of trials. No case can be set for trial "unless it has appeared on a trial calendar issued not later than Tuesday of the week preceding the week in which the first case listed is assigned for trial."{1} The request for a continuance, whether by motion or stipulation, must be filed two days before the date the trial calendar is called, giving the reason for the request and specifying a date "by which such reason will be removed."{2}

If the request is by motion, the reason must be stated in an accompanying affidavit, together with "the time when such reason was first known."{3} If it has to do with an absent witness, the affidavit must identify the witness by name and address, give the substance of the witness's expected testimony, the grounds for the expectation, and the measures taken to procure the witness's presence.{4}

§ 23.02

Trial Court Discretion

The decision to grant or deny a continuance is broadly discretionary with the trial judge.{5} The judge can deny even a stipulated continuance if he or she finds it would not be "in the interests of justice[,]" and may impose conditions on any continuance granted.{6} In general the circumstances will neither entitle a party to a continuance nor prevent the judge granting one. Rule 50 identifies some situations where continuances are not automatic.{7} Even ignorance of a hearing date does not give automatic grounds for a continuance, inasmuch as the attorneys are presumed to be familiar with the case file.{7.5}

§ 23.03

Limits on Trial Court Discretion - Statutory Limits

There are, however, both statutory and constitutional limits to the trial judge's broad control over the calendar.

In some cases the rules or statutes provide for fixed time periods which the parties can rely on and which curtail the judge's power over scheduling. Rule 50(a) states one such period: no case can be set for trial "unless it has appeared on a trial calendar issued not later than Tuesday of the week preceding the week in which the first case listed is assigned for trial." And trial cannot be scheduled before mandatory pretrial periods have elapsed. In a drunk driving case where the defendant had a statutory right to an independent analysis of a blood sample within thirty days of when the sample was taken, it was error for the judge to schedule a trial before that date.{8} Rule 12 provides another fixed period: the motion-filing deadline and status conference cannot be scheduled sooner than twenty-eight days after arraignment,{9} and trial cannot be scheduled before then.

§ 23.04

- Constitutional Limits

a. The Right to Prepare a Defense

The constitutional limits are not so easily established. If continuances are mostly discretionary they can sometimes effectively deny constitutional rights: the right to prepare a defense, the right to effective assistance of counsel, the right to summon and confront witnesses. As the United States Supreme Court wrote in Unger v. Sarafite,{10} "a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality." Agreeing that "the value of trial expedition is not to be exalted over a paramount interest in the sound preparation of a defense," the Vermont Supreme Court held in State v. Kasper{11} that denial of a continuance in a straightforward probation revocation case, with nearly a month to prepare, did not deny adequate time to prepare.{12} In State v. Ahearn{13} the court rejected an incarcerated pro se defendant's claim that he was entitled to continuances to contact witnesses, to recesses between witnesses, and to time to prepare a summation.{14}

When the state amends an information on the eve of trial, the defendant's right to fair notice may require a continuance.{15}

When the state produces new witnesses not disclosed in the discovery process, the defendant should be given time to take depositions and make other necessary preparations.{16}

When the defendant asks for a last-minute continuance to investigate new exculpatory leads, lack of a specific offer of proof may prove fatal.{17}

b. The Right to Testify

A continuance may also be required to protect the defendant's right to testify in one proceeding, without risking self-incrimination in a second proceeding. In State v. Begins{18} a defendant moved for continuance of a probation revocation hearing until after trial of a related criminal charge, on the ground that her testimony in defense of the revocation case could be used to incriminate her in the criminal trial. The Vermont court held that she was entitled either to a continuance of the probation case, or to use immunity for her testimony, and that "[t]he burden properly rests on the State to show why the [probation] hearing should be held before the trial."{19} The court has applied Begins and its alternative remedies - continuance or immunity - in a number of other contexts.{20}

c. The Right Against Double Jeopardy

In some cases a continuance may be the only alternative to a mistrial, and when the defendant objects to mistrial and a continuance is a reasonable alternative, the judge is bound to grant it.{21}

d. The Right to a Speedy Trial

The power to continue a case is limited by V.R.Cr.P. 48(b)(1), incorporating the speedy trial guidelines of Administrative Order 5{22} and also by the constitutional speedy trial guarantees.{23} These provisions should not prevent continuances which the defendant requests or accedes to, because such delays will almost never constitute speedy trial or A.O. 5 violations.{24}

ENDNOTES

1. V.R.Cr.P. 50(a).

2. V.R.Cr.P. 50(b)(2). The form Stipulation/Motion in General Use is included as Appendix 20.

3. V.R.Cr.P. 50(c)(1). See State v. Jones, 157 Vt. 553, 557 and n.* (1991) (judge can enforce affidavit requirement in particular cases even if he or she has previously waived it). See Form 29, in the appendix of forms to the criminal rules.

4. V.R.Cr.P. 50(c)(1). If the witness's absence has to with sickness, the rule requires an affidavit of a "reputable physician" giving details.

5. State v. Ahearn, 137 Vt. 253, 267 (1979); State v. Rickert, 124 Vt. 380, 382 (1964).

6. V.R.Cr.P. 50(b)(1),(3).

7. Especially worth noting is the proviso that "[e]ngagement of counsel in other trial courts will not be considered cause for continuance as a matter of right." V.R.Cr.P. 50(c)(4). Additionally, absence of a witness or other evidence does not require a continuance if the judge thinks the evidence is merely cumulative or otherwise not material or if the other side will agree to the use of affidavits in lieu of testimony. V.R.Cr.P. 50(c)(2). Absence of a witness who has not been subpoenaed also does not require a continuance. V.R.Cr.P. 50(c)(3).

7.5. State v. Nichols, 150 Vt. 563, 564 (1988) (no requirement that court notify lawyer of hearing notices issued before lawyer entered the case).

8. State v. Fournier, 133 Vt. 416 (1975).

9. V.R.Cr.P. 12(c),(e)(1).

10. 376 U.S. 575, 589 (1964).

11. 152 Vt. 435, 441 (1989).

12. The court in Kasper wrote that Unger v. Sarafite and United States v. Burton, 584 F.2d 485, 489-90 (D.C. Cir. 1978), set forth "correct guiding standards" for continuances. 152 Vt. at 441 and n.1.

13. 137 Vt. 253 (1979).

14. State v. Ahearn, 137 Vt. 253, 267-68 (1979).

15. State v. Beattie, 157 Vt. 162, 169-70 (1991). See State v. Holden, 136 Vt. 158, 159-60 (1978) (trial judge erred by permitting amendment immediately before jury drawing, denying requested continuance, and proceeding to trial "with the speed of the Concorde").

16. State v. Evans, 134 Vt. 189, 193 (1976). See also State v. Miller, 146 Vt. 164, 174 (1985); State v. Howe, 136 Vt. 53, 66-67 (1978).

17. State v. Noyes, 157 Vt. 114, 117-18 (1991).

18. 147 Vt. 295 (1986).

19. 147 Vt. at 298-99; State v. Kasper, 152 Vt. 435, 441-42 (1989); State v. Begins, 147 Vt. 295, 298-99 (1986).

20. See O'Brien v. Brown, 153 Vt. 652 (1990) (parole revocation); Hill v. Wheel, 149 Vt. 203 (1988) (judicial conduct board proceeding should be continued until conclusion of witness's criminal trial).

21. Dunkerley v. Hogan, 579 F.2d 141 (2d Cir. 1978), cert. denied, 439 U.S. 1090 (1979). See § 14.04, supra.

22. V.R.Cr.P. 50(b)(1).

23. See chapter 12, supra.

24. See § 12.04, supra.When a defense-requested continuance will delay trial for more than 60 days after arraignment, the judge can require the defendant to join personally in the motion or stipulation. V.R.Cr.P. 50(b)(2).