Del. Fam. Ct. R. Crim. P. 23

As amended through November 14, 2024

Rule 23 - Continuances: Contents of Motion or Request; Absence of Material Witness

(a) Requests for continuances. All motions for continuances must be made in a timely manner and in writing to the judge or master assigned to hear the case. The written request shall contain:

(1) a statement of the original filing date of the complaint;

(2) the position of opposing counsel on the request, or, if there is no opposing counsel, the position of the opposing party;

(3) the number of times that the case has been scheduled for conference, hearing or trial previously;

(4) the reason(s) why the request is being made; and

(5) should the reason involve a conflict with a case scheduled in another court, the name of the other court and the name of the case must be recited, along with the date that the case was scheduled in the other court.

(b) Situations of scheduling conflicts. Where a scheduling conflict exists, the parties or their attorneys shall supply the information required by and the determination shall be made in accordance with the provisions of the Statement of the Judicial Conference in Respect to Scheduling Conflicts adopted by the Judicial Conference on June 2, 1976 which provides as follows:

The Courts comprising the Judicial Conference are greatly concerned about the increasing number of requests by attorneys for continuances based upon conflicts in their schedules.

The Conference, therefore, wishes to remind each attorney of this responsibility to keep a close personal check on this trial schedule. When a conflict exists, the attorney should promptly attempt to resolve it, either by arranging for another attorney to handle one of the conflicting matters, or otherwise resolving the conflict without the necessity of a continuance of either matter.

If the scheduling conflict cannot be resolved, the Judge or Judges to whom the conflicting cases are assigned (or the Clerk if a Judge has not been assigned) should immediately be notified in writing of the existence of the conflict, the caption, nature and subject matter of the conflicting cases, the names of all attorneys involved in each, and a statement of (a) the reasons why the conflict cannot be resolved, (b) the relative importance of the conflicting cases, (c) the relative inconvenience to parties, witnesses and others if a continuance is granted, (d) the dates on which each court fixed the trial dates and whether the court which created the scheduling conflict was aware that a conflict was being created, (e) whether the other parties (or attorneys) object to the continuance, and (f) other information which will be helpful to the Judge or Judges in deciding which of the conflicting matters should take precedence.

It is expected that the Judges will then confer and attempt to arrive at a harmonious ruling on the request consistent with the interest of justice. If the Judges involved cannot agree as to an appropriate resolution of the conflict, then priority shall be given to criminal cases over civil cases and to constitutional courts (excluding Justice of the Peace Courts) over statutory courts.

(c) Failure to comply. Any request that fails to contain all of the above may not be considered.

(d) Emergency. When an emergency or unforeseeable situation prevents full compliance with Rule 23(a), the judge or master assigned to the case may consider an oral or incomplete request for continuance and may require subsequent submission of appropriate correspondence and/or documentation.

(e) When continuance granted; notice. Should a continuance be granted by the Court, further notices of any proceeding in the case may be oral, rather than written, directed to counsel or the parties if unrepresented, and it shall be their responsibility to notify witnesses of the date, time and place of the proceeding, and to request subpoenas, if appropriate, to compel the attendance of a witness, at least 5 business days prior to the proceeding.

(f) Entry of reason in record. A judge or master granting a continuance shall make a written entry in the Court record of the reason for continuance.

(g) Unavailability of material witness. Every motion for continuance upon the ground of the absence of or unavailability of a material witness shall be filed as soon as said absence or unavailability becomes known and, in addition to furnishing the information set forth in subparagraph (a) above, shall be accompanied by an affidavit on behalf of the party applying therefor, setting forth the facts expected to be proved by such witness, the efforts made to procure attendance, and the date when the absence or unavailability of the witness became known. If it be stipulated by the opposite party that the witness if called would testify as set forth in the affidavit, the Court in its discretion may refuse the motion and under such circumstances the affidavit may be offered in evidence at the trial.

Del. Fam. Ct. R. Crim. P. 23