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Prosecutors and police: Please tell me right away when you will not be ready for trial

Sep 16, 2012 Prosecutors and police: Please tell me right away when you will not be ready for trial

Court dates are often exercises in "hurry up and wait." My client and I are required to arrive on time, and I need to have our witnesses in court or on call to arrive before they will start testifying.

Hurry up and wait is a fact of life, but is not necessary when the prosecutor knows s/he will not be ready for trial that day. Once the prosecutor knows this, I can tell my witnesses not to come to court, and tell my client that the need no longer exists to schedule a full day or more for the currently-scheduled trial. 

Through heavy caseloads and/or habit, too many prosecutors do not tell me before the court date that they will not be ready for trial. Too many police officers wait too long to tell prosecutors whether they will be available for trial, sometimes arising from their not having seen subpoenas or date notices to testify, but sometimes because of not following a habit of informing prosecutors at once of their unavailability.

The federal courts and District of Columbia Superior Court are the toughest courts where I practice to obtain on-the-spot continuances when the lawyer knew or should have known much earlier on about a problem, or where the lawyer did not get a subpoena to the witness well in advance of trial. In some Virginia district courts, judges ordinarily automatically give a continuance to either party on the first trial date, which sometimes can be a benefit when new discovery is learned on the trial date that the defense needs to pursue further, in this state that has the most crabbed discovery rules of all the states I practice in.

Sometimes judges give on-the-spot continuances to prosecutors even when the record has always been clear that my client is coming from at least a few hundred miles away, even for a claim that the police officer is sick without details about when the officer became sick, and about how sick the officer is. Despite my never having needed to ask any court to continue a trial date for sickness in my entire twenty-one years of going to court several thousand times, I repeatedly see police calling in sick, often not until the trial date.

In the courts where I practice, trial continuances generally can only be granted for good cause shown. It is not good cause to merely say that a police officer or prosecution witness is sick — or has an irreconcilable date conflict — without first showing when the witness was subpoenaed, when the witness knew of a problem, when the witness told the prosecutor of the problem, when the prosecutor told defense counsel of the problem, and why the problem should take precedence over keeping the same trial date.

When judges tend quickly to grant postponements of trial dates for a claim of a sick police officer, with no further details, that breeds a culture of police not telling prosecutors right away about date conflicts and sickness conflicts, and of prosecutors not telling defense counsel right away about problems being ready for the trial date.

For police and prosecutors reading this blogpost, you know it takes little effort — and is essential — for you to keep prosecutors and defense counsel timely informed of problems having your necessary witnesses at trial. If you were in civil litigation rather than criminal litigation, the courts would be more ready to assess attorney fees and expenses against the prosecution for last-minute continuances. Laxness in notifying the defense that the prosecution will not be ready for trial is unacceptable.

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