U.S. v. Weisbeck, 50 M.J. 461

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Continuance

1. the standard of review of a military judge’s decision to deny a continuance is abuse of discretion; there is an abuse of discretion where the reasons or rulings of the military judge are clearly untenable and deprive a party of a substantial right such as to amount to a denial of justice

Core Criminal Law Subjects: Motions, Generally: Merits

1. the military judge has discretion, for reasonable cause, to grant a continuance to any party for such time and as often as may appear just; Article 40, UCMJ; RCM 906(b)(1)
2. military judge abused his discretion in denying defense request for continuance where: (1) there was no surprise in the defense desire to arrange for expert testimony; (2) the expert testimony was the heart of the intended defense strategy; (3) the request for continuance was made nine days prior to the scheduled trial date; (4) there was no available substitute for the desired defense expert; (5) the expert would have been available if the continuance had been granted; (6) the requested continuance was for less than 6 weeks; (7) the government did not assert any prejudice arising from the continuance; (8) the defense had received two prior continuances; (9) the request was made in good faith; (10) the defense acted with reasonable diligence; (11) the expert witness was key to credibility of government witnesses; and, (12) the defense had insufficient time to obtain and prepare another expert for trial
3. an unreasonable and arbitrary insistence upon expeditiousness in the face of a justifiable request is an abuse of discretion where the record reflects no reason for denying a reasonable, defense-requested continuance other than expeditious processing and a desire to hold the defense’s feet to the fire

Trial Stages: Merits: Motions

1. the military judge has discretion, for reasonable cause, to grant a continuance to any party for such time and as often as may appear just; Article 40, UCMJ; RCM 906(b)(1)
2. military judge abused his discretion in denying defense request for continuance where: (1) there was no surprise in the defense desire to arrange for expert testimony; (2) the expert testimony was the heart of the intended defense strategy; (3) the request for continuance was made nine days prior to the scheduled trial date; (4) there was no available substitute for the desired defense expert; (5) the expert would have been available if the continuance had been granted; (6) the requested continuance was for less than 6 weeks; (7) the government did not assert any prejudice arising from the continuance; (8) the defense had received two prior continuances; (9) the request was made in good faith; (10) the defense acted with reasonable diligence; (11) the expert witness was key to credibility of government witnesses; and, (12) the defense had insufficient time to obtain and prepare another expert for trial
3. an unreasonable and arbitrary insistence upon expeditiousness in the face of a justifiable request is an abuse of discretion where the record reflects no reason for denying a reasonable, defense-requested continuance other than expeditious processing and a desire to hold the defense’s feet to the fire

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the standard of review of a military judge’s decision to deny a continuance is abuse of discretion; there is an abuse of discretion where the reasons or rulings of the military judge are clearly untenable and deprive a party of a substantial right such as to amount to a denial of justice