Jun 15, 2018 Turning prosecution continuance motions into criminal defense victories – Virginia lawyer
Virginia criminal lawyer on blunting prosecutors’ continuance motions
Turning prosecution continuance motions into criminal defense victories needs to be pursued fully by the defense. In this second and final part of a two-part article (see part one here) I point out that a prosecution continuance motion can set criminal defendants and their supporters on edge, and even irritate the criminal defense lawyer at times. As a Virginia criminal lawyer, I know that the best way to approach a prosecution continuance motion to obtain witnesses is to coolly and persuasively suggest to the judge factors to consider in denying the continuance motion, including:
• Was the witness issued and served a subpoena to be present in court? If not, then any failure timely issue and serve a subpoena should fall squarely on the prosecution’s shoulders, unless the prosecutor’s diligent subpoenaing efforts met with an inability to locate the witness or in the witness evading being subpoenaed.
• If the witness was issued and served a subpoena, then why should the trial be postponed rather than having the subpoena enforced by having law enforcement find and bring the witness to court?
• If the witness is purportedly sick, when did the witness become sick, what is the sickness, how soon thereafter did the witness tell the prosecutor, and how soon did the prosecutor tell the criminal defense lawyer of the sickness?
• For any prosecution continuance motion, it helps to show prejudice to the defense, including the extent to which the defense has brought to court essential lay witnesses and paid expert witnesses.
Criminal defense attorney on turning prosecution continuance motions into victory – and recently for a first time trial date when the arresting officer was sick
Recently, I convinced a judge to deny a prosecutor’s in-court trial continuance motion when the officer was apparently very sick, where I explained to the judge that our essential paid expert witness had left his home hours away from court shortly before the arresting officer told the prosecutor of his illness, but that the prosecutor chose to wait for my arrival in court hours later to tell me he would seek a continuance. The prosecutor had my contact information, had been notified before the trial date of our expert’s location hours from the courthouse, but still did not timely tell me he would not be ready for trial, thus preventing me from telling our expert witness not to bother coming to court that day. On top of that, I informed the judge that an additional essential prosecution witness had not appeared in court.
Having been denied a continuance, the prosecutor then announced that he was dismissing the case. I will take my victories in just about any form they come.
This is the final part of a two-part article. Part one is here.
Virginia criminal lawyer Jonathan L .Katz relishes obtaining favorable court results for his clients facing misdemeanor, DUI and felony prosecutions. To discuss your case with Jon, please call his staff at 703-383-1100 to schedule a confidential appointment.