RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – To Locate a Witness

RHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald

CONTINUANCES

To Locate a Witness

State v. Firth, 708 A.2d 526 (R.I. 1998). The trial judge did not abuse his discretion in denying defendant’s request for a continuance to secure the presence of a government agent to testify about fiber analysis where the state had stipulated to the testimony.

A motion for continuance made immediately prior to or during a trial is addressed to the sound discretion of the trial judge. Id. at 530.

A judge’s discretion should be guided by 4-part test:
Is the testimony material?
Did the defendant use due diligence in attempting to procure the witness?
Will the requested witness be available on the future date?
Is the testimony not merely cumulative? Id. at 530.
State v. Barbaso, 908 A.2d 1000 (R.I. 2006). Defendant requested a one-day continuance due to the unavailability of a witness to his alleged felony assault. The trial judge denied the request and R.I.S.C. affirmed.

“The denial of a motion for a continuance constitutes an abuse of discretion only if the movant is able to satisfy all four of the criteria enumerated in Firth.” Id. at 1006.
In this case, the trial judge found the witness’s testimony to be cumulative. The defendant also failed to use due diligence to procure the witness because he had known for two weeks that she was in Puerto Rico.
“. circumstances can arise which require that a request for a continuance be honored so as to protect the accused’s Sixth Amendment-based right to present favorable evidence necessary to his or defense.” However, the court held that the facts of this case did not amount to a constitutional violation. Id. at 1005.

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