“Although the government argues that it presented significant opposing evidence and that [the witness’s] testimony could be discredited and would not have affected the outcome of the trial, we cannot say that his testimony would not have aided [appellant’s] case. That testimony therefore was reasonably necessary to enable [appellant] to present his case.”
How later courts described this case
- “Although the government argues that it presented significant opposing evidence and that [the witness’s] testimony could be discredited and would not have affected the outcome of the trial, we cannot say that his testimony would not have aided [appellant’s] case. That testimony therefore was reasonably necessary to enable [appellant] to present his case.”
- prejudice resulted from denial of continuance requested to obtain witness whose testimony could exonerate defendant
- treating inability to obtain potentially exculpatory evidence as prejudice for purposes of reviewing trial-court order denying continuance
- noting that denial of request for continuance is reviewed for abuse of discretion
Written by the judges who cited it.
The opinion
SCHWELB, Associate Judge,
concurring.
I join the court’s opinion, but add a few words to emphasize that even the wide latitude accorded to the trial judge in passing on a motion for a continuance was transgressed in this case.
The dialogue between the trial judge and Daley’s attorney quoted in footnote 4 to Judge King’s opinion reveals beyond *819 any doubt that the judge was concerned solely about expediting the trial, to the exclusion of all other considerations. Indeed, the judge summarily dismissed counsel’s attempt to proffer what the barber’s testimony would be, even though, as the court points out, any delays in producing the witness would probably have been minimal. Such “a rigid insistence by the court upon expedition of trial in the face of a justifiable request for delay can render the right to defend an empty formality.” Edelen v. United States, 627 A.2d 968 , 972 n. 7 (D.C.1993) (quoting O’Connor v. United States, 399 A.2d 21, 28 (D.C.1979)).
The right to call witnesses in one’s own behalf is a “fundamental element of due process of law.” Washington v. Texas, 388 U.S. 14, 19 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967). Where a witness is temporarily unavailable and the defendant seeks a continuance, “the fundamental character of that right is a major factor to be considered in the balancing process.” Martin v. United States, 606 A.2d 120, 127 (D.C. 1991) (citation omitted). The judge’s refusal even to entertain defense counsel’s' proffer, or to consider the likely brevity of any delay, cannot be reconciled with these authorities.