How Many Times Can a Preliminary Hearing Be Continued?

No statute or rule caps the number of times a preliminary hearing can be continued. Each request is decided on its own, and how many times a preliminary hearing can be continued depends on who is asking, why, whether the defendant consents, and how the delays stack up against the deadlines that govern the hearing in the first place. In federal court, Federal Rule of Criminal Procedure 5.1(c) requires the hearing within 14 days of the initial appearance if the defendant is in custody and 21 days if released.¹ Every continuance past those windows has to be justified, and the justification required gets steeper as the delays pile up.

The Two Standards That Control Every Request

Federal law splits continuance requests into two categories based on whether the defendant agrees to the delay. With the defendant’s consent, a magistrate judge can extend the deadline one or more times on a showing of good cause, considering the public interest in the prompt disposition of criminal cases.¹ Without consent, the standard jumps: the judge can extend the deadline only on a showing that “extraordinary circumstances exist and justice requires the delay.”²

That gap matters. A defendant who consents to a continuance is essentially agreeing that good cause exists, and courts routinely grant those. A defendant who refuses to consent puts the requesting party to a much harder proof. “Extraordinary circumstances” is not defined in the statute, which leaves judges room to decide case by case, but it clearly means something more than a scheduling conflict or a prosecutor who ran out of prep time.

State deadlines vary, generally falling somewhere between 10 and 30 days, with shorter windows for defendants in custody. The underlying logic is the same in every jurisdiction: the longer someone waits without a probable cause finding, the harder each new delay is to defend.

Reasons Judges Accept

A missing witness who was properly subpoenaed is one of the most reliably accepted grounds. Courts distinguish sharply between a witness who failed to appear despite being subpoenaed and one who was never subpoenaed in the first place. The first is a genuine obstacle; the second is a preparation failure.

Pending forensic work is another common basis. DNA, toxicology, and digital forensics all take time, and crime lab backlogs are widely recognized. Judges will generally give the government room to wait for results that go to the heart of probable cause. That patience is not unlimited. At some point the court decides the government has had enough time to build its case, and further delay stops being reasonable.

Reasons Judges Reject

General unpreparedness rarely qualifies, especially when the defendant is in custody. If a party had the time to get ready and did not, judges are unlikely to reward that with more time. Vague references to an “ongoing investigation” without a concrete explanation of what remains to be done tend to fail after the first request or two. The more continuances a party has already received, the more skeptical the court becomes of each new one.

How the Judge Weighs Each Request

Continuance rulings are discretionary. The Supreme Court confirmed in Ungar v. Sarafite that granting a continuance is “traditionally within the trial judge’s discretion” and that the analysis turns on the particular facts of each case.³ There is no formula and no set number. A judge who grants three continuances in a complex case may deny the first request in a simpler one.

The factors judges weigh overlap: the length of the proposed delay, the number of prior continuances, the reason offered, the requesting party’s diligence, the effect on the court’s calendar, and the harm to the opposing side. A first continuance for a legitimate reason is routine. A third or fourth request from the same party starts to look like either poor preparation or tactical delay, and judges track the pattern. Who is causing the delay matters too, because government-caused, defense-caused, and neutral delays each carry different weight when speedy trial concerns come into play.

What Happens When the Deadline Passes

If the preliminary hearing does not occur within the required timeframe, 18 U.S.C. § 3060 requires that the defendant be discharged from custody or freed from bail conditions, “without prejudice” to the government pursuing new charges.² The case is not dismissed at that point, but a defendant in jail must be released. For someone whose hearing keeps getting continued, this is the immediate practical protection.

The Speedy Trial Act adds a separate clock. Under 18 U.S.C. § 3161, the government must file an indictment or information within 30 days of arrest, and trial must begin within 70 days after the indictment or first court appearance, whichever is later. Continuances can be excluded from that count only if the judge makes specific findings on the record that the “ends of justice” served by the delay outweigh the public and defendant’s interest in a speedy trial.⁴ A continuance granted without those findings does not stop the clock.

If the Speedy Trial Act’s limits expire, the defendant can move to dismiss, and the court decides whether the dismissal is with or without prejudice. The three factors are the seriousness of the offense, the circumstances of the delay, and the impact reprosecution would have on the administration of the Act and the justice system. Deliberate misconduct or negligence points toward dismissal with prejudice; delays caused by court congestion or other neutral factors usually do not.

A Sixth Amendment speedy trial violation is different. The Supreme Court held in Strunk v. United States that dismissal “must remain the only possible remedy” for a constitutional speedy trial violation, with no lesser option available to the court.⁵

How to Push Back on Repeated Continuances

The most direct tool is refusing to consent. Because federal law requires extraordinary circumstances to extend the deadline without the defendant’s agreement, withholding consent forces the prosecution to meet the higher standard rather than the lower one.¹

Formal objections carry more weight when they identify concrete prejudice: witnesses whose memories are fading, evidence at risk of being lost, pretrial detention costing the defendant a job or housing, or a documented pattern of prior continuances that suggests a lack of diligence. General complaints about delay tend to move judges less than specifics.

If continuances have already pushed the case past a statutory deadline, the defendant can move for discharge under § 3060 or move to dismiss under the Speedy Trial Act. Asserting the speedy trial right on the record matters independently. Whether the defendant demanded a prompt hearing is one of the factors courts consider under the constitutional analysis,⁶ and a defendant who quietly absorbs continuance after continuance has a weaker claim than one who objected each time.

The Preliminary Hearing May Never Happen at All

One thing to watch for: a grand jury indictment eliminates the need for a preliminary hearing entirely. Rule 5.1(a) requires a magistrate judge to conduct the hearing unless the defendant has been indicted, among other exceptions.¹ Prosecutors sometimes seek continuances precisely to buy time to take the case to a grand jury, which then moots the hearing. A defendant can also waive the hearing, often in connection with early plea discussions. Tracking continuances is worthwhile, but the hearing you are waiting on may end up being replaced rather than held.

1
Cornell Law Institute. Federal Rules of Criminal Procedure Rule 5.1 Preliminary Hearing
2
Office of the Law Revision Counsel. 18 U.S. Code 3060 – Preliminary Examination
3
Justia. Ungar v. Sarafite, 376 U.S. 575 (1964)
4
Office of the Law Revision Counsel. 18 U.S. Code 3161 – Time Limits and Exclusions
5
Justia U.S. Supreme Court Center. Strunk v. United States, 412 U.S. 434 (1973)
6
Constitution Annotated. Amdt6.2.1 Overview of Right to a Speedy Trial