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.
    – user4657
    Commented Feb 24, 2019 at 3:18
  • 3
    @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
    Commented Feb 24, 2019 at 15:11
  • 2
    > I recently discovered that, in general, these "rights" are not optional! - what does it mean for a right to be "not optional" though? They can force you to attend your trial not because the sixth amd. says you have a right to it and you have to take that right, but simply because there's nothing in the law that forbids them from forcing you to appear.
    – John B
    Commented Mar 15, 2021 at 17:49
  • How can a witness testify that the defendant is the person they saw if the defendant is not present?
    – EvilSnack
    Commented Mar 30 at 18:47
  • @EvilSnack … by identifying them in a photo? Commented May 9 at 23:35

3 Answers 3


SCOTUS has at least three times found that it is necessary for a defendant to be present at the beginning of a criminal trial in order to satisfy the Constitutional mandates regarding due process.

So the simple answer is that a defendant must be present during a criminal trial because without his presence no trial can begin.

However, once a trial has begun FRCP Rule 43 itself (section c) allows for the absence of the defendant. Among the provisions: The defendant can waive his right to be present simply by voluntary absence. The defendant can also waive his right by disruptive behavior in the court.

  • 1
    Trump keeps complaining that he's unable to campaign because he's required to be in court. I've also heard news reporters saying this independently (from both liberal and conservative media), not just parrotting his possible BS. So could he opt out of all his sleeping and farting in the courtroom, and go back on the campaign trail?
    – Barmar
    Commented May 9 at 22:45
  • @Barmar That is covered in other answers here.
    – feetwet
    Commented May 10 at 12:33

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.

  • Yes and no. The narrow sense "why" is because the U.S. Constitution requires it to a great extent and that the criminal procedure rules have simplified the moderately complicated constitutional rule by requiring criminal defendants to be present even in some circumstances where it isn't constitutionally required. But at the deeper sense of why this policy exists, I'd agree that this is beyond the scope of Law.SE.
    – ohwilleke
    Commented May 9 at 23:31

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).

  • 1
    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
    Commented Feb 24, 2019 at 19:32

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