Lee v. Kemna, 534 U.S. 362, 22 (2002)

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Cite as: 534 U. S. 362 (2002)

Opinion of the Court

Brief for Respondent 30.14 At oral argument, however, Missouri's counsel edged away from this position. Counsel stated: "I'm not going to stand on the formality . . . of a writing or even the formality of an affidavit." Tr. of Oral Arg. 48. This concession was well advised. Missouri does not rule out oral continuance motions; they are expressly authorized, upon consent of the adverse party, by Rule 24.09. And the written transcript of the brief trial court proceedings, see supra, at 367, enabled an appellate court to comprehend the situation quickly. In sum, we are drawn to the conclusion reached by the Eighth Circuit dissenter: "[A]ny seasoned trial lawyer would agree" that insistence on a written continuance application, supported by an affidavit, "in the midst of trial upon the discovery that subpoenaed witnesses are suddenly absent, would be so bizarre as to inject an Alice-in-Wonderland quality into the proceedings." 213 F. 3d, at 1047.

Regarding Rule 24.10, the only Rule raised on appeal by the prosecution, see supra, at 371-372, the Missouri Court of Appeals' decision was summary. Although that court did not specify the particular components of the Rule neglected by Lee, the State here stresses two: "Lee's counsel never mentioned during his oral motion for continuance the testimony he expected the missing witnesses to give"; further, he "gave the trial court no reason to believe that the missing witnesses could be located within a reasonable time." Brief for Respondent 31.

These matters, however, were either covered by the oral continuance motion or otherwise conspicuously apparent on the record. The testimony that the alibi witnesses were expected to give had been previewed during voir dire at the outset of the three-day trial, then detailed in defense counsel's opening statement delivered just one day before the continuance motion. App. 10-13; see Osborne, 495 U. S.,

14 Missouri's brief did not address the requirement that the affidavit be notarized.


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