In the U.S. the Supreme Court has ruled that the defendant must be present at the start of their criminal trial in order for it to be valid. Are there countries where the defendant has the right to completely opt out of the process?

Obviously you can’t “opt out” from serving prison time but in theory you should be able to skip everything prior to that.

Update: by “skipping” I’m referring to having the right to not be present entirely during the trial. Not the initial hearing, not the testimony part, not the final sentencing. 100% opt out should you wish to do so, assuming the court doesn’t believe you to be a flight risk.

  • 4
    Can you cite the Supreme Court ruling you're asking about? FRCP rule 43 ([law.cornell.edu/rules/frcrmp/rule_43](LII link)) states a general rule that "the defendant must be present" but then gives exceptions and references other rules with additional exceptions. The first footnote cites Lewis v. United States, 146 U.S. 370 (1892), and Diaz v. United States), 223 U.S. 442 (1912); perhaps you could quote the core part of each of those decisions to clarify the scope of your question, "completely opt out" versus just "be absent" (for parts of the trial)?
    – david
    Commented May 10 at 13:55

3 Answers 3


In the U.S. the Supreme Court has ruled that the defendant must be present at the start of their criminal trial in order for it to be valid. Are there countries where the defendant has the right to completely opt out of the process?

Frame change:

Conducting a criminal trial without the presence of the defendant at any stage of the process, which is called a trial in absentia is considered to be a grave violation of the rights of the criminal defendant in many, but not all, legal systems. A trial in absentia also calls into question the capacity of the criminal court involved to promptly impose its punishment upon a convicted criminal defendant if the defendant is convicted. Still, a minority of countries allow trial in absentia in some circumstances.

As explained by Wikipedia, "In some civil law legal systems, such as that of Italy, absentia is a recognized and accepted defensive strategy. Such trials may require the presence of the defendant's lawyer, depending on the country." As explained further at the same link:

Member states of the Council of Europe that are party to the European Convention on Human Rights are bound to adhere to Article 6 of the convention, which protects the right to a fair trial.

Trials in absentia are banned in some member states of the EU and permitted in others, posing significant problems for the fluidity of mutual recognition of these judicial judgments. The executing member state possesses some degree of discretion and is not obliged to execute a European Arrest Warrant if the country that is making the request has already tried that person in absentia.

Conditions under which trials in absentia must be recognised include: if the person can be said to have been aware of the trial; if a counsellor took their place at the trial; if they do not request an appeal in due time; and if they are to be offered an appeal. . . .

The Council of Europe has made commentary on judgments that are made in absentia. The Committee of Ministers, in Resolution (75) 11, of 21 May 1975, stated that an individual must first be effectively served with a summons prior to being tried. In this sense, the ministers are emphasizing that it is not the presence of the accused at the hearing that is of importance, rather the focus should be on whether or not the individual was informed of the trial in time.

In a 1985 judgement in the case Colozza v Italy, the European Court of Human Rights stressed that a person charged with a criminal offence is entitled to take part in the hearings.

Several trials in absentia of U.S. criminal defendants, noted in the linked Wikipedia article, have been the subject of great diplomatic controversy and tension between the U.S. and Italy.

An arrest or at least nominal booking with the consent of the defendant is often considered the means by which a criminal court may obtain jurisdiction over the defendant to try the defendant. Assuring that right of a criminal defendant to be present at and participate in a trial of that criminal defendant has historically been a far greater concern in the law of criminal procedure than any right to be absent from the trial.

More generally, essentially all countries recognize that criminal defendants do not have an unrestricted right to be free from incarceration, after an arrest or after charges are filed against them, while a criminal case against them is pending but prior to a conviction or acquittal. Any release of a criminal defendant who has ever been booked or arrested, prior to the completion of a criminal trial and acquittal, is only allowed subject to terms and conditions set by the relevant law and the court in which the criminal case is pending. Some countries are more lenient than others about allowing criminal defendants to be at large prior to trial, but there is not a generalized unlimited right to be free prior to trial without conditions anywhere.

Any right to be absent from a criminal trial (which is almost always unwise because it deprives the lawyer for the criminal defendant from the assistance of the lawyer's client in conducting the defense, and because it shows a lack of respect for the people conducting the trial who will make the final decision on guilt and innocence and later, a sentence) is a subset of the general set of rules about when a criminal defendant can be at large prior to a conviction or acquittal.

As another answer notes, even in the U.S., sometimes a criminal defendant can be absent from a trial after appearing for the commencement of the trial, with the permission of the court. But, like pretrial release, this is only allowed in particular circumstances and subject to specific conditions. So, calling this a "right" of a criminal defendant, as opposed to an option of the court regarding how it conducts a criminal trial, is something of an overstatement in almost every case.

  • It’s interesting that the idea of “innocent until proven guilty” doesn’t apply in this case. If the defendant is allowed to stay free during the trial (aka they’re not a flight risk), and we assume they’re innocent it seems unfair to compel them to waste their time on a trial (assuming they’re 100% confident they’ll win and see the trial as a mere formality). Commented May 10 at 2:20
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    "grave violation of the rights of the criminal defendant" - doesn't that assume the defendant wants to be present? The question is about whether they're required to be there, even though they'd prefer to let their lawyer handle everything while they do more useful things.
    – Barmar
    Commented May 10 at 14:15
  • @JonathanReez Practical reality revealed that this would leave you with a lot of criminals at large.
    – ohwilleke
    Commented May 10 at 16:49
  • @ohwilleke many defendants are allowed to stay free while their trial is ongoing. Trump would be one prominent example. Commented May 10 at 18:06
  • 1
    @JonathanReez But Trump, like all most pretrial defendants, do so with the leave of the court subject to court imposed conditions of release. Pretrial release is not a matter of right and is not unconditional.
    – ohwilleke
    Commented May 10 at 18:16

Fact check: A U.S. defendant can decline to attend their criminal trial with the permission of the judge, at least in New Hampshire.

In February 2024, Defendant Adam Montgomery, on trial for the murder of his daughter, declined to attend and sat out the trial in his prison cell, where he was serving time for another crime. He was found guilty of killing his daughter, among other related crimes such as abuse of a corpse.

Today, May 9, 2024, Montgomery was forced by the trial judge to attend his sentencing.

Link to news story

  • 2
    If it's subject to permission, it's arguably not a right. Commented May 10 at 10:54
  • 2
    @TobySpeight Very few rights are absolute, yet we still use the term.
    – Barmar
    Commented May 10 at 14:17

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