7

Please consider the following hypothetical situation:

A person has been indicted for a criminal violation of the law. He has made bail and is not in custody. He claims he/she is innocent and he does not want to testify. He believes, and his attorney tend to agree, that the evidence against him is not sufficient for the jury to convict.

Does the defendant need to show up for the trial at all? Could he show up for part of the trial and then leave?

4

2 Answers 2

14

Wikipedia's article on Trial in absentia does a pretty good job of explaining this.

In short, Rule 43 of the Federal Rules of Criminal Procedure says a defendant must be present

  • at the arraignment,
  • at the time of the plea,
  • at every stage of the trial, and
  • at the imposition of sentence

But there's a list of exceptions to that:

  • The defendant can voluntarily leave after the trial commences, waiving their right to be present

  • A disruptive defendant can be removed by the judge's order (after a warning)

  • In a misdemeanor case, the defendant can submit a written statement to waive their right to be present

  • And the defendant need not be present for a conference or argument over a question of law. (A question of law is an argument over what the law actually means or how it applies, which is decided by the judge. The jury decides on a question of fact, i.e. whether not the defendant broke the law. Questions of law are generally extremely technical discussions.)

That first exception is the big one: You have to show up for the start of the trial, and then you can voluntarily leave. It might look bad to the judge or jury, but I believe this happens pretty often with politicians and businessmen, where they'll show up on a few key days and other than that let the lawyers handle everything, or be out for part of the trial because they're busy that day.

3
  • What if, for some reason, the defendant can't actually attend the start of the trail. E.g he/she is in hospital on life-support? Is the trail postponed in that case? And who gets to decide if the reason for the absence is severe enough to warrant special consideration? I can image some corner-cases where the defendant could make it to court, but doing so would be extremely bad for his/her health in the long run (e.g. skipping chemo-therapy sessions or postponing an operation in order to be able to appear in court).
    – Tonny
    Dec 15, 2023 at 14:09
  • As far as I understand the rules, the defendant must be present, so if they're in the hospital and can't be moved, the trial waits until they get out. And not to be ghoulish, but if the defendant is on life support they'd probably postpone anyway -- the case becomes moot (pointless) if the defendant is dead, so they'd wait until he's not in mortal danger before going to the trouble of a trial. Cancer treatments are usually just one afternoon every couple weeks, so I don't see that being a great problem with scheduling a minimal amount of court appearances. Dec 15, 2023 at 14:30
  • 4
    The judge decides any questions of what warrants special consideration, which is usually just a continuance (which is just legalese for a postponement). The defense will ask for a continuance and explain the reasons ("my client is getting chemotherapy" is a really good reason, tbh) and the judge can decide whether to grant it or not. If the judge refuses, that might become a basis for appeal -- the argument being that the defense was in some way hurt by the defendant being unable to attend for health reasons and the judge was wrong to refuse to grant a continuance. Dec 15, 2023 at 14:38
3

Does the defendant need to show up for the trial at all?

Yes.

As a matter of U.S. Constitutional law, a criminal defendant must be present at the start of a criminal trial for it to be valid.

If the defendant absconds mid-trial, however, the trial can still proceed to a conviction in the defendant's absence.

8
  • If the defendant is present at the start of the trial, can he skip the rest of the trial legally?
    – Bob
    Dec 14, 2023 at 19:49
  • 1
    @Trish Do you have any law to support this? In my experience, criminal defendants are almost universally ordered to appear for trial and subject to contempt if they walk out.
    – bdb484
    Dec 14, 2023 at 22:25
  • 1
    @Bob I don't think he can voluntarily skip the trial legally, he is generally under court order to attend. He can be involuntarily excluded for bad conduct while being in custody, and can be convicted anyway if he absconds mid-trial. But it is generally illegal for him not to show pu to every day of trial.
    – ohwilleke
    Dec 14, 2023 at 22:36
  • 1
    @bdb484 Illinois v Allen is all about being removed from the own trial for misconduct. Being put into a neighboring room and made inaudible to the jury is one way to do so.
    – Trish
    Dec 14, 2023 at 22:37
  • 2
    @trish are you saying that choosing to skip trial and being prohibited from attending trial are the same thing? This argument seems ridiculous.
    – bdb484
    Dec 14, 2023 at 23:30

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .