(Applicable to District Court and Superior Court)

(a) Continuances.

(1) After a case has been entered upon the trial calendar, a continuance shall be granted only when based upon cause and only when necessary to insure that the interests of justice are served.

(2) The factors, among others, which a judge shall consider in determining whether to grant a continuance in any case are:

(A) Whether the failure to grant a continuance in the proceeding would be likely to make a continuation of the proceeding impossible, or result in a miscarriage of justice.

(B) Whether the case taken as a whole is so unusual or so complex, because of the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate preparation of the case at the time it is scheduled for trial.

(C) Whether the overall caseload of defense counsel routinely prohibits his making scheduled appearances, whether there has been a failure of diligent preparation by a party, and whether there has been a failure by a party to use due diligence to obtain available witnesses.

(3) An attorney who is to be otherwise engaged in a trial, evidentiary hearing, or appellate argument so as to require a continuance shall notify the court and the adverse party or the attorney for the adverse party of such conflicting engagement not less than twenty-four hours before the scheduled appearance, or within such other time as is reasonable under the circumstances.

(4) A motion for a continuance may include a request that the court rule on the motion without a hearing. If such a motion is filed at least three court days prior to the scheduled appearance or trial date and indicates that all parties have agreed to the continuance, the court shall, prior to the scheduled date, rule on the motion without a hearing unless it deems a hearing to be necessary. In any other case, the court may in its discretion rule on a continuance motion without a hearing, provided that all parties have had an adequate opportunity to file an opposition to the motion. If the court continues the case without a hearing, defendant's counsel shall inform the defendant of the revised date. Any motion filed pursuant to this subdivision shall provide one or more proposed continuance dates and state all supporting grounds, and any factual allegations shall be supported by affidavit.

(b) Assessment of Costs. When a continuance is granted upon the motion of either the Commonwealth or the defendant without adequate notice to the adverse party, causing the adverse party to incur unnecessary expenses, a judge may in his discretion assess those expenses as costs against the party or counsel requesting the continuance.

(c) Preservation of Testimony. A judge may order as a condition upon the granting of a continuance that the testimony of a witness then present in court be taken and preserved for subsequent use at trial or any other proceeding. The witness shall be examined in open court by the party on whose behalf he is present and the adverse party shall have the right of cross-examination. The expense of taking and preserving the testimony shall be assessed as costs against the party requesting the continuance.

As amended October 14, 1997, effective December 1, 1997.

Reporter's Notes

(1997) (a)(4). In 1997, Rule 10 was amended by adding new subsection (a)(4). This amendment allows the judge to rule on a continuance motion without a hearing, provided all other parties have had a chance to file an opposition to the motion. Previously a continuance motion was often argued in court, even if it was agreed to by all parties, because no other formal procedure was available. Either the case was advanced for hearing on the motion, compounding client expense and court congestion; or the continuance motion was argued on the trial day, leaving parties uncertain whether it would be granted and requiring the defendant and witnesses to be present in case the motion was denied. Subsection (a)(4) is designed to rectify these problems and provide a more efficient procedure, while continuing to maintain ultimate authority in the court over whether to grant a continuance even when the parties are in agreement.

Criminal Rule 10 continues to provide for a ruling by the judge on a continuance motion in every case, consistent with Uniform Magistrate's Rule 2 . Although this rule generally permits actions on uncontested, nonevidentiary motions by the magistrate, subdivision (c) prohibits the magistrate from acting on continuances.

As with Rule 7 , when a case is continued in the absence of the defendant, defense counsel is charged with the responsibility of so notifying his or her client.

(1979) This rule is modeled in part after 18 U.S.C. § 3161(h)(8)(B)-(C) (Supp. 1, 1975). Subdivisions (b) and (c), while novel to Massachusetts criminal practice, are not without precedent, see Superior Court Rule 21 (1974); District Court Supplemental Rule of Civil Procedure 103 (1975); G.L. c. 276, § 50.

Subdivision (a). This subdivision is modeled after 18 U.S.C. § 3161(h)(8)(B)-(C) (Supp. 1, 1975). The controlling principle underlying this subdivision is that a continuance should be granted only when justice requires. See ABA Standards Relating to Speedy Trial § 1.3 (Approved Draft, 1968); the Defense Function § 1.2(b), (c) (Approved Draft, 1971); the Prosecution Function § 2.9(a), (c) (Approved Draft, 1971); Rules of Criminal Procedure (U.L.A.) Rule 721(d) (1974). Consensual continuances and continuances which are helpful, but which fall short of being necessary, are not to be granted, because in such cases justice is generally promoted by proceeding to trial without delay and because the need for the prompt disposition of criminal cases transcends the desires of the immediate participants in the proceedings. Compare Commonwealth v. Silva, 6 Mass. App. Ct. 866 (1978) (Rescript).

Whether a motion for a continuance should be granted traditionally lies within the discretion of the trial judge, whose action will not be disturbed unless there is a clear abuse of discretion. Commonwealth v. Jackson, 376 Mass. 790 (1978); Commonwealth v. Watkins, 375 Mass. 472 (1978); Commonwealth v. Funderberg, 374 Mass. 577 (1978); Commonwealth v. Grieco, 5 Mass. App. Ct. 350 (1977). In ruling on a motion for a continuance, the judge should balance the moving party's need for additional time against the possible inconvenience, increased costs, and prejudice which may be incurred by the opposing party, as well as giving due weight to the interest of the judicial system in avoiding delays which would not measurably contribute to the resolution of a particular controversy. Commonwealth v. Gilchrest, 364 Mass. 272 , 276-77 (1973). Accord Commonwealth v. Grieco, supra, 5 Mass. App. Ct. 350 (1977).

Common grounds asserted by counsel as a basis for a requested continuance are:

Illness of the defendant or important witnesses or defense counsel, conflicting engagements of counsel, lack of time for preparation by counsel or prejudicial publicity or a combination of several of the factors....

30 Mass. Practice Series (Smith) § 1013 (1970, Supp. 1978).

A determination of a motion for a continuance to secure the attendance of witnesses will depend upon a showing that the desired testimony is of more than "marginal significance" and not "merely cumulative" to or corroborative of other available testimony to the same effect. Commonwealth v. Watkins, 375 Mass. 472 (1978); Commonwealth v. Funderberg, 374 Mass. 577 (1978); Commonwealth v. Hanger, 6 Mass. App. Ct. 407 , aff'd, 377 Mass. 503 (1979); Commonwealth v. Darden, 5 Mass. App. Ct. 522 (1977), where the adverse party would not be prejudiced by a continuance and the testimony is significant, a denial of the continuance constitutes an abuse of discretion, Commonwealth v. Silva, 6 Mass. App. Ct. 866 (1978) (Rescript), assuming that the desired witness may be expected to become available within a reasonable time. Compare Commonwealth v. Ambers, 4 Mass. App. Ct. 647 (1976), (witness missed ride) with Commonwealth v. Swenor, 3 Mass. App. Ct. 65 , 66-67 (1975) (witness in federal custody; authorities would not honor writ of habeas corpus ad testificandum). See Commonwealth v. Hanger, 6 Mass. App. Ct. 407 . Subdivision (a)(2)(C) adds as a consideration that the moving party must have exercised due diligence to obtain the presence of available witnesses.

As for conflicting engagements of counsel, subdivision (a)(2)(C) indicates that delays attributable to the heavy case load of desired defense counsel which would prevent the commencement of trial for an unreasonable time period do not establish good cause for a continuance. The right of a defendant to retain counsel of his choice does not include the right to choose an attorney who is unable to comply with the demands of the trial calendar. United States v. DiStefano, 464 F.2d 845 , 846 n. 1 (2d Cir.1972). See United States v. Poulack, 556 F.2d 83 , 86 (1st Cir.1977); United States v. Tortora, 464 F.2d 1202 , 1210 (2d Cir.1972); Commonwealth v. Perry, 6 Mass. App. Ct. 531 (1978).

Other conflicting engagements of counsel afford no right to the continuance of any particular case.... [T]his is the only way in which the trial of causes can proceed in an orderly and expeditious way under present conditions.... No attorney can accept ... a larger number of cases than he can try as and when they are reached and expect courts to continue any case for his convenience or that of his clients. Commonwealth v. Festo, 251 Mass. 275 , 277 (1925). See Commonwealth v. Dabrieo, 370 Mass. 728 , 736-37 (1976) (counsel was engaged in court appearances in several counties and "unavailable for trial of this case" for seven months). There are those instances, however, where a conflicting engagement is unavoidable and justice would best be served by the granting of a continuance. In such an instance, subdivision (a)(3) requires counsel to notify the court and the adverse party of the conflict in order to minimize their inconvenience.

The sixth and fourteenth amendments to the United States Constitution, which afford a defendant the right to counsel in a prosecution which may result in a loss of liberty, Argersinger v. Hamlin, 407 U.S. 25 (1972), are not satisfied by the mere presence of a competent attorney if that attorney is not prepared. Commonwealth v. Cavanaugh, 371 Mass. 46 , 57 (1976). In addition to the factors listed in subdivision (a)(2)(B) relative to the reasonableness of expecting adequate preparation, the court may consider the length of time the attorney has been assigned or appointed to the case. In ruling on a motion for a continuance on this ground, the judge's discretion cannot be exercised so as to impair the constitutional right to prepared counsel; a "myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right ... an empty formality." Commonwealth v. Cavanaugh, supra, 371 Mass. at 51. On the other hand, where there is ample justification for the conclusion that a last-minute claim of lack of preparation is merely a dilatory tactic, is unsupported by the facts, or is the result of a failure of diligent preparation, a denial of a continuance is no abuse of discretion. Commonwealth v. Jackson, 376 Mass. 790 (1978); Commonwealth v. Perry, 6 Mass. App. Ct. 531 (1978); subdivision (a)(2)(C). See also Commonwealth v. Coward, 7 Mass. App. Ct. 867 (1979) (Rescript).

Pursuant to Mass.R.Crim.P. 11(a)(2)(B) and (b)(2)(B), if the required pretrial conference report is not filed and a party does not appear at the scheduled time to explain the failure, "no request of that party for a continuance of the trial date . . . shall be granted. . . . "

Subdivision (b). This subdivision deviates from previous Massachusetts criminal procedure. Former practice dictated that if a continuance was granted, each party was to bear his own costs, unless the defendant was assessed the costs of prosecution. See generally G.L. c. 280, § 6 . However, the courts have long applied a similar assessment rule to the costs of continuances in civil proceedings. Superior Court Rule 21 (1974) provides, and District Court Civil Rule 16 (1965) provided, that when a case is postponed on the motion of a party, that party may be responsible for the costs and expenses of the adverse party in addition to his own.

The decision to assess the costs rests solely within the discretion of the judge, and payment is to be made directly to the adverse party for the benefit of whomever incurred the expenses and not to the court. The purposes of this rule are to discourage parties or their attorneys from requesting continuances on short notice and to reimburse parties for expenses they incur as a result of the tardiness of the adverse side in requesting a continuance. As stated in the District Court and Superior Court rules, supra, the court should not assess costs against a party in cases where his opponent has incurred expenses because of a requested continuance when: 1) the continuance is granted because of improper conduct of the adverse party; or 2) adequate notice was in fact given the adverse party (see [a][3], infra ); or 3) grounds for the continuance were not discovered in time to give sufficient notice to prevent the expense to the adverse party.

Assessable costs under this rule are those costs directly caused by the insufficient notice. Assessable costs generally include witness fees, extra compensation paid to police witnesses, travel costs, costs of depositions pursuant to subdivision (c), infra, and perhaps stenographers' attendance fees in District Court. See Mass.R.Crim.P. 6(d)(1) .

Subdivision (c). A new practice is instituted by this subdivision: if a witness is present in court and a party has requested a continuance, the judge may condition the grant of the continuance upon the taking and preservation of that witness' testimony for use at trial or other proceeding. While similar in many respects to a court-ordered deposition after a finding that a witness was unlikely to appear at the continued proceeding (former G.L. c. 276, § 50 [St.1851, c. 71] ), the procedure permitted under this rule is not termed a deposition. This is to avoid conflict with the formal summons and notice requirements of Mass.R.Crim.P. 35(b)(c)(h) . In all other respects the procedure is compatible with Rule 35 deposition practice.

While utilization of the procedure established by this subdivision should be undertaken only in "exceptional circumstances" when "deemed to be in the interests of justice," Mass.R.Crim.P. 35(a) , it is not intended to be so restricted as that under Mass.R.Crim.P. 6(d)(2) , pursuant to which testimony may be taken upon the default of a defendant only if "to require the attendance at a later time of a witness ... would constitute a hardship because of age, infirmity, illness, profession or other sufficient reason." Once taken and preserved, the witness' testimony may be used as substantive evidence in any subsequent proceeding as if the witness were "unavailable" under Mass.R.Crim.P. 35(g) .

This procedure does not deny the defendant's right to confrontation of witnesses, since it is presumed that the defendant will be present when the continuance is requested and the witness will, of course, be in attendance. The witness is to be examined in open court by the party calling him and the adverse party is permitted to cross-examine. In these circumstances, the constitutional requirement is satisfied. Commonwealth v. DiPietro, 373 Mass. 369 (1977); aff'g Commonwealth v. DiPietro, 4 Mass. App. Ct. 845 (1976).