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The Sixth Amendment guarantees:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....

I recently discovered that, in general, these "rights" are not optional!

For example, under under Federal rule: if you want a bench trial in a criminal matter, both the prosecution and the judge must agree to waive the jury (FRCP 23a). (Many states do, however, allow a criminal defendant to unilaterally opt for a bench trial.)

Likewise: Under FRCP 43, a criminal defendant cannot opt out of being present for his entire trial.

These rules seem opposed to the basic civic principles that surround the presumption of innocence before conviction, and the right of a person to pursue an effective defense. I can think of plenty of reasons why a person may not want to show his face in a public court, much less sit through the entire process. Including reasons that may prejudice the triers of fact: e.g., disfigurement, handicaps that produce irritating tics, etc.

The notes on these federal rules cite a great deal of jurisprudence and history. Before I attempt my own research, can anyone point to principles or customs that might illuminate or reconcile these FRCP mandates with the basic understanding of American criminal justice I described?

  • I'm voting to close this question as off-topic because questions about the motivation behind a law's existence are a matter of politics or philosophy, not law itself. – Nij Feb 24 at 3:18
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    @Nij: True, but we have identified "legislative intent" as "possibly on-topic". IMHO, in this matter the link between the principle articulated in the Constitution and the sundry implementations by the courts seems likely to have evolved in the legal and judicial spheres, not the legislative/political sphere. – feetwet Feb 24 at 15:11
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Here on Law SE, we can answer questions about what the law is. We cannot be so eager to answer why it is what it is.

While the basic purpose of the right to be present during trial, and to have a jury trial, is to protect the defendant, other purposes may be served as well. In particular, it is often said that a jury may and should evaluate the appearance and expressions of the defendant, just as they do with witnesses. Obviously they cannot do this if the defendant is absent.

I don't know why a defendant must obtain the consent of the prosecution for a non-jury trial, particularly when the rule is otherwise in many states. But there is no constitutional right to a non-jury trial. If Congress chose to abolish bench trials in all Federal cases, it could. Therefore this rule is also constitutional.

Similarly there is no constitutional right to be absent during a trial.

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I think it's because defendants could avoid trial to prevent identification, or to otherwise improperly disrupt the course of the proceedings:

Despite some earlier authority to the contrary, courts now agree that the right to be present guaranteed by the federal constitution can be waived or forfeited in capital, as well as non-capital, cases.

Although a defendant can waive his right to be present at his trial, he does not have a constitutional right to insist upon his absence. For, as the Supreme Court explained in Singer v. United States, “[t]he ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right.” A trial court therefore can order a defendant’s personal appearance, despite his desire to stay away from the trial, whenever his presence is necessary to conduct the trial properly, such as where the prosecution contemplates having one of its witnesses make an in-court identification of the accused.

3 David S. Rudstein, et al., Criminal Constitutional Law § 14A.02 (2018) (citations omitted).

  • Ah yes: The identification of the alleged perpetrator sitting at the defense table is a conspicuous trial tradition. "And do you see that person in this courtroom today? Can you identify that person here?" – feetwet Feb 24 at 19:32

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