Drafting a Continuance Request
Hire a lawyer. If you have been released from jail pending your arraignment, you need to Find a Good Criminal Defense Law Firm promptly. A lawyer will help you through the entire criminal process, which will include filing any continuance request you may need. If you do not know where to find a good criminal lawyer, contact your state bar association's lawyer referral service. After answering a few general questions, you will be put in touch with a number of qualified choices. If you are being held in jail pending your arraignment, you may not be able to hire a lawyer before your court appearance. If this happens, you will most likely need to make your continuance request in person at the arraignment. However, in some (very rare) circumstances, if you cannot afford a lawyer, one might be appointed to you before the arraignment. If this happens, talk to them about your need for a continuance.
Verify the date of your arraignment. Your arraignment will take place soon after you have been arrested and charges have been filed against you. The date of your arraignment will be on your citation, if you received one. If you do not have any paperwork, ask jail staff for information regarding your court appearance. This date is important to know for at least a couple of reasons. First, the arraignment is an important hearing and you need to make sure you show up if you are not in jail. If you are in jail, court and jail personnel will ensure you make it to your appearance on time. Second, requests for continuances should be filed a number of days before your arraignment, if possible. Therefore, you should know the date of your arraignment so you know when you need to file your request.
Start drafting your request in a timely manner. In most states, continuances are more likely to be granted if they are filed well before the arraignment date. For example, in Pennsylvania, a continuance request is scrutinized differently if it is made within 10 days of the hearing date. If your request is made at least 10 days in advance, the judge will look at your request to determine if there is good cause for the postponement. However, if you file your request within the 10 day period, the judge will only consider it if the reason for your request arose within that 10 day period. Because arraignments usually happen within days of your arrest, judges will usually be willing to hear your request within the 10 day period. With that being said, you still need to file your request as soon as possible.
Understand common reasons for making a request. Every state should have a statute, judicial decision, and or court rule laying out valid reasons for continuances. Your continuance request must indicate why you are asking for the continuance and you should provide a short legal analysis if possible. For example, in Connecticut, some valid reasons for a continuance include counsel not being ready, counsel not being available, and you (as a party) not being available. Judges can choose to grant a continuance for good cause at their sole discretion. Judges will make their ruling with the intent to discourage repeated delays and delays for improper reasons. When the judge reviews your request, he or she will want to know the positions of all the parties, the number of prior continuances requested, whether a postponement will prejudice the prosecution, the unavailability of parties, and the desirability of unrepresented parties obtaining counsel.
Avoid conflicts whenever possible. If it is possible to reschedule conflicts and get through the arraignment without a postponement, you should do so. Filing a continuance request this early in the judicial process may hurt your ability to get a continuance down the road. However, not all conflicts can be avoided and not every continuance request is a bad one. If you truly have a good reason for asking the court for a postponement, you should do so.
Identify yourself in the request. Whether you are writing the request on your own or asking your lawyer to do it for you, you need to understand what goes into a proper request. The first part of your written request should identify you and your case. It might say something like: "Your honor, My name is Sally Jane and I am scheduled to appear in court on January 17, 2017 for an arraignment in the case of Alabama v. Sally Jane, Case No. 1234567. I am the defendant in that case."
Include a statement about every party's position on the continuance. Most states will require that you reach out to the prosecution and request an agreement on the postponement or provide a good reason for not doing so. If you have a lawyer working for you, have him or her contact the prosecution in an attempt to come to an agreement. If you are unrepresented at this time, do not, under any circumstance, reach out to the prosecution. You do not want to incriminate yourself by talking to opposing counsel and most prosecutors are not allowed to speak to defendants outside of court anyway. For example, if you have defense counsel on your side, your request might read: "The prosecution has been made aware of our continuance request and they have informed us that it will not be opposed. The prosecution is willing to agree to the postponement in accordance with this request." If you are unrepresented, your request might read: "The prosecution has not been contacted or made aware of this continuance request. This is the case because, as an unrepresented criminal defendant, I am unwilling to subject myself to a discussion with opposing counsel without first consulting my own lawyer."
Detail your reasons for asking for a continuance. Asking to have an arraignment postponed usually happens because counsel is not prepared, has not been hired, or has not been appointed. For example, if you have not been able to hire a defense lawyer yet, your request might read: "I am requesting a postponement because I have not had a reasonable amount of time to hire defense counsel. I have worked diligently to find counsel and have taken the following steps to do so...The Pennsylvania Code, Section 131.13(j)(6), states that judges may consider the need for unrepresented parties to hire counsel when making a postponement decision." If counsel is not prepared, your request might read: "I am requesting a postponement because I (as defense counsel) was hired 12 hours ago and have not had time to review the charges and available evidence. In addition, I have not even had a chance to speak with my client regarding the matter."
Summarize any other continuances you have asked for in the past. The last portion of your continuance request should detail any other continuances you have asked for in this particular case. Unless you have already postponed your arraignment before, you will not have likely asked for a continuance in this case. Therefore, this section of your request might be short. For example, if you have never asked for a continuance before in this particular case, your request might read: "I have never before asked for a continuance in the case of Alabama v. Sally Jane, Case No. 1234567."
Filing the Request
Make copies of your request. Once your request has been drafted, you need to make multiple copies of the request before you file it. One copy will be for your records, another copy will be served on the prosecution, and other copies may need to be filed with the court along with the original. Remember, if you are in jail and your lawyer is handling the filing, he or she will make copies for you.
Notify the other party. Before you file your continuance request, you need to notify the prosecution of your intentions. You will notify the prosecution by serving them with a copy of your request. To serve the prosecution, you (or your lawyer) will need to hire someone over the age of 18 who is not related to the case. He or she, called the server, will hand a copy of your request, or a mail a copy, to the prosecutor. Once the prosecution has been served, the server will need to complete a proof of service form. This proof of service form requires the server to swear, under oath, that service was completed properly. Once completed, the server will return the proof of service form to you or your lawyer.
File your paperwork. Once you have your continuance request and proof of service form in hand, you need to file those documents with the court. To file your paperwork, you or your lawyer will go to the courthouse and hand the paperwork to the clerk of courts. The clerk will need the original copies of both the request and proof of service form as well as copies of each, if requested. When you file your paperwork, you may be required to pay a small filing fee (around $10). If you cannot afford the fee, you may be able to get it waived. Once you take care of the filing fee, your paperwork will be stamped as "filed" and it will be put in your case file.
Making an Oral Continuance Request
Do as much research on continuances as possible. If you are in jail and/or if counsel was made aware of your arraignment late, you may not have the ability to draft and file a written continuance request. If this is the case, you may have to make your request at the arraignment itself. If you have counsel, he or she will make the oral request for you. However, if you do not have counsel, you will need to make the request yourself. Before you make your own oral request, try to learn as much about continuances as possible. If you are in jail, this might not be possible. In this instance, it should be enough to know that you can ask for more time if you are not ready. If you are out of jail awaiting your arraignment, get on a computer and try to learn about how to make an oral continuance request. Look at videos of court hearings, use search engines to learn about the law, and visit your local law library.
Attend your arraignment. If you are making an oral continuance request, you need to show up for your scheduled arraignment. Therefore, most oral requests made will be due to a lack of counsel or a lack of preparedness and not for some scheduling problem. If you are in jail, you will automatically be transported to the courthouse on the morning of your arraignment. However, if you are out of jail on the day of your arraignment, be sure to arrive to the courthouse early so you have time to get through security. Once you arrive at the courthouse and get through security, find your courtroom and sit quietly until your case is called. Once your case is called, move to the front of the courtroom and sit down at the proper table.
Stand up and identify yourself. When the judge begins your arraignment, ask nicely if you can request a continuance. Do not proceed with the arraignment before making this request. For example, do not enter a plea and do not answer questions about the charges until your request has been voiced. Once you start with the arraignment proceedings, it will be tough to get a postponement. To make an oral continuance request, stand up, address the judge, and say: "Your honor, I am Sally Jane. I am the defendant in this case. I would like to request a continuance."
Tell the court why you can't continue with the arraignment. Once you identify yourself and your request, the judge will likely ask why you need more time. Be prepared to to tell the court your reasoning behind the request. In most cases, if your request is being made orally, it is because you do not have counsel or because counsel is not prepared. If you have been unable to hire counsel, be prepared to show the court the efforts you have made so far. This might include telling the court the lawyers you have contacted and met with. In addition, if you have upcoming consultations, tell the judge who those consultations will be with. For example, if you do not have counsel (i.e., you have not been able to hire counsel or counsel has not yet been appointed to you), you should say: "Your honor, I am requesting a continuance because I do not yet have counsel. Without counsel, I am unable to knowledgeably address the questions and concerns of this court during this hearing. As an indigent defendant, I would kindly request that counsel be appointed to me before I am arraigned."
Implementing the Judge's Decision
Receive the judge's order. Whether you make your request orally or in writing, a judge will make a decision, in the form of an order, and notify you of that decision in an appropriate manner. If you made your request in writing, the judge's order may be mailed to you or you may receive a phone call informing you of the decision. If you made the request orally in court, the judge will likely make a decision right there in front of you.
Get your new arraignment date. If your continuance is granted, the judge will normally postpone it for a specific period of time. If you are in open court, the judge might ask both parties how much time would be reasonable. A new arraignment date will usually be determined right there in open court. If your request was written, the judge might ask for written statements about how much time you think you need. The judge will weigh the response from both parties and will assign you with a new arraignment date.
Prepare for your arraignment. Once a new arraignment date has been set, make sure you are ready to go when that day comes. It will be very hard to postpone an arraignment a second time, especially when you were able to work with the judge on a new date ahead of time. When your arraignment day comes, you should be prepared to acknowledge the charges against you, enter a plea (i.e., plead guilty, not guilty, or no contest), and discuss bail and pretrial release.
Understand the judge's decision for denying your request. If the court denies your request for a continuance, your arraignment will move forward as scheduled. In general, the court will have weighed your reasoning against any prejudice the postponement might cause the prosecution. If the judge decides to deny your request, it will usually be because the postponement would unduly harm the prosecution. In addition, requests are often denied if you have made multiple requests before.
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