CBA Record March-April 2022

YOUNG L AWYERS S EC T I ON : COME TOGE THER

ing court dates. It is imperative to keep track of the day calculation from court date to court date. Th is will help if there are term discrepan cies. Also, as the term date approaches, having a motion to dismiss on hand will prevent a waiver of the speedy trial rights. Essentially, if defense attorneys wait until the last day of the term to ask the court for a continuance date to fi le the motion to dismiss, it can result in a waiver, and the term can be extended. People v. Hartman , 96 N.E.2d 449 (Ill. 1951). Dates During the Demand Term Often, the State will ask for a continuance during the period in which the speedy trial deadlines run because it may be missing a key witness or necessary evidence. In theory, the State should file a written motion for a continuance. If the motion is fi led relatively early in the speedy trial term, the court will most likely grant it. However, the closer to the speedy trial deadline, the more ground exists to oppose

the continuance. Th eoretically, the State must make a showing of due diligence when asking for a continuance. 725 ILCS 5/114-4(e). So, be sure to object and to request that the State explain the reason for the continuance. At every continued court date, defense attorneys must fi le a new written demand for speedy trial that lists all the prior demand dates. It is also a good idea to request that the State provide a copy of whatever subpoenas they have served to the missing witnesses. But what if the State’s term is about to expire, it still fi les a motion to continue the case, and this time it asks the Court to extend the speedy trial term deadline? Th is can happen but asking the court to extend a speedy trial term deadline requires that the State be very speci fi c as to: (i) why it needs an extension, and (ii) what it has done to deserve such an extension. For instance, the State may fi le for an exten sion because it is missing a material piece of evidence and it has exhausted all means to obtain it, but it still came up short. Th e

court may grant a 60-day continuance, or a 120-day continuance (e.g., for DNA evi dence), if the State can show that it made every e ff ort to obtain such evidence and that all it needs is more time. 725 ILCS 5/103-5(c). Further, this evidence must be extremely material to the case, and the State needs to show exactly what steps it took to obtain it. Th e client must appear at every court date after making the demand, unless the client has good cause. Good cause can be illness, death in the family, or some sub stantial event out of the client’s control. If this happens, then look for a short date to agree on to continue the demand where it left o ff . Failing to appear without good cause can result in a delay that tolls the demand term. If the failure is egregious enough to result in a warrant, the clock restarts and the client loses all those days. The Term is Up, File That Motion! Don’t be surprised if the speedy trial term runs to the end. When this happens, have

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