Adjourning a Criminal Trial

It is very common for someone accused of a crime to seek an adjournment of their trial.  There are many reasons why someone would want an adjournment, including: the desire to retain new counsel; the need to obtain additional discovery; the need for additional preparation; the unavailability of witnesses on the date scheduled for trial; the unavailability of the lawyer due to another trial or other conflict; personal reasons such as a family emergency or illness; a desire to negotiate longer with the prosecution concerning a possible plea bargain or sentence bargain; the desire of the Defendant and his/her lawyer to address another case pending against the Defendant first; the lawyer’s desire to have his client evaluated for mental competency; etc., etc.

In Michigan, Judges have discretion to grant or deny adjournments of trial or other court proceedings.  MCL 768.2 provides, in pertinent part:

No adjournments, continuances or delays of criminal causes shall be granted by any court except for good cause shown in the manner provided by law for adjournments, continuances and delays in the trial of civil causes in courts of record: Provided, that no court shall adjourn, continue or delay the trial of any criminal cause by the consent of the prosecution and accused unless in his discretion it shall clearly appear by a sufficient showing to said court to be entered upon the record, that the reasons for such consent are founded upon strict necessity, and that the trial of said cause cannot be then had without a manifest injustice being done.

The question becomes: what constitutes good cause?  To determine whether good cause exists, courts consider whether the defendant (1) asserted a constitutional right, (2) had a legitimate reason for asserting the right, (3) had been negligent, and (4) had requested previous adjournments.  People v Coy, 258 Mich App 1, 18, quoting People v Lawton, 196 Mich App 341, 348; 492 NW2d 810 (1992). Even when good cause exists, reversal for a denial of a motion to adjourn is unwarranted unless the defendant demonstrates prejudice. People v. Coy, 258 Mich App 1, 18.

A Judge may decide that a Defendant’s desire to hire a new lawyer on the date of trial was not timely and not grant an adjournment, even though the right to have counsel of choice is Constitutional in nature (pursuant the the 5th Amendment and 6th Amendment to the United States and Michigan Constitutions) when considering all of the above factors.  The Judge may determine that the present counsel is competent and the Defendant is not prejudiced by proceeding to trial with present counsel.

A Judge may decide a request to adjourn a trial on the date of trial is warranted when the lawyer asserts that the Defendant is not competent for trial, because this could effect the Defendant’s Constitutional right to assist in his or her defense (pursuant the the 5th Amendment and 6th Amendment to the United States and Michigan Constitutions).  How can a Defendant assist his or her lawyer if he or she does not understand the nature of the proceedings and his or her Constitutional rights?

A Judge’s judicial philosophy can play a role in terms of how a Judge weights these factors and determines good cause and prejudice.  Different judges may have different views when it comes to an adjournment request.  The lawyer for the Defendant should be able to articulate on the record the prejudice and manifest injustice for proceeding with the trial as scheduled, and the good cause to grant the adjournment request.  By articulating the issue on the record, the issue is preserved for appellate purposes if necessary.

District Court Judges and Circuit Court Judges are under pressure from the Michigan State Supreme Court to maintain efficient dockets.  A Defendant has a right to a speedy trial under the 6th Amendment to United States and Michigan Constitutions and State law.  The speedy trial right is stricter when the Defendant is incarcerated in jail or prison.  However, a Defendant has the ability to waive his or her right to a speedy trial.  Even if a Defendant waives his or her right to a speedy trial, the Judge can still deny the request for adjournment.

Furthermore, alleged crime victims have speedy trial rights in some instances as well under the Michigan Crime Victims Rights Act pursuant to MCL 780.751 et seq (also known as the William Van Regenmorter Crime Victim Rights Act).  MCL 780.756 requires the Prosecutor to give notice to a victim of any scheduled court proceedings and changes in that schedule.  MCL 780.759 requires that a speedy trial may be scheduled for any case in which the alleged victim is declared by the Prosecutor to be: a victim of child abuse (including sexual abuse or any other assaultive crime); a victim of criminal sexual conduct (CSC 1st Degree, CSC 2nd Degree, or CSC 3rd Degree) or assault with intent to penetrate or assault with intent to commit CSC 2nd; 65 years of age or older; or an individual with a disability that inhibits the individual’s ability to attend court or participate in the proceedings.  According to MCL 780.761 the alleged victim has the right to be present throughout the entire trial of the Defendant, unless the victim is going to be called as a witness.  Adjournments of trial can affect these alleged victim rights to be present at and participate in the trial.

If possible, it is best to request an adjournment of trial prior to the date of trial.  When witnesses are present and the Court has set aside the time for trial, the Court may view an adjournment request as inconvenient to the witnesses and a waste of judicial resources.    If the Prosecution is willing to stipulate to the adjournment, it increases the likelihood that the Court will grant the adjournment.    The Defense lawyer should try to disclose to the Prosecution his or her intent to seek an adjournment of trial as soon as possible.  If a Defendant wants to retain a new lawyer, he or she should do so immediately when a trial is pending.  Like many things in life, it is best not to wait until the last minute.  For excellent criminal law representation, retain attorney Daniel Hilf of Hilf & Hilf, PLC.

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