Defendant’S Presence At Trial

Crosby v. United States, 506 U.S. 255 (1993)

Pursuant to Rule 43, Fed.R.Crim.P., a defendant who does not appear on the first day of trial may not be tried in absentia. A defendant who leaves the jurisdiction during the course of trial may be tried in absentia.

Jones v. Murphy, 694 F.3d 225 (2d Cir. 2012)

A very lengthy opinion that canvasses the law governing situations in which a defendant’s recalcitrant behavior leads to his exclusion from the courtroom. The Second Circuit ultimately concludes that proceeding in the absence of the defendant in this case was acceptable, because the trial cout determined that the defendant was determined to interfere with the proceedings if he was permitted to return after initially being removed.

Ayala v. Wong, 693 F.3d 945 (9th Cir. 2012)

It is not proper to permit the prosecutor to present the race-neutral reasons for the exercise of strikes in an ex parte proceeding. The defense has the right to be present and to argue that the reasons are pretextual. See also 756 F.3d 656 (9th Cir. 2014). The Supreme Court reversed, holding that the petitioner was not entitled to AEDPA relief. Davis v. Ayala, 135 S. Ct. 2187 (2015).

Grayton v. Ercole, 691 F.3d 165 (2d Cir. 2012)

The defendant has the right to be present at a pretrial evidentiary hearing at which the state seeks to admit certain hearsay on the theory that the defendant forfeited his right to contest the hearsay (and the Confrontation Clause protection) by his wrongdoing.

United States v. Collins, 665 F.3d 454 (2d Cir. 2012)

During deliberations, the jurors became embroiled in an altercation that clearly exceeded deliberations. A series of notes were sent to the judge. Initially, the judge shared the notes with counsel and responded appropriately. A subsequent note, however, was not shared with counsel but the judge told the parties he was going to have a private conversation with one of the jurors. Defense counsel stated, “I am not consenting to this course of action.” The judge then spoke to the juror and admonished the juror to continue deliberating. The Second Circuit reversed the subsequent conviction, holding that this procedure violated the defendant’s right to be present at all stages of the proceedings.

United States v. Williams, 641 F.3d 758 (6th Cir. 2011)

Video conferencing is not permissible for a sentencing proceeding.

United States v. Ward, 598 F.3d 1054 (8th Cir. 2010)

If the defendant is disruptive and the judge is contemplating removing him from the courtroom, the judge must first question the defendant – not just the defense attorney – about his conduct and warn the defendant personally of the consequences of his actions. Simply relying on defense counsel to advise the court about the defendant’s intentions is not sufficient.

Gray v. Moore, 520 F.3d 616 (6th Cir. 2008)

Before a defendant may be removed from the courtroom because of his misbehavior, the trial court must warn the defendant of the consequences of his actions. Illinois v. Allen, 397 U.S. 337 (1970). Because the state trial court promptly removed the defendant from the courtroom when he yelled at a witness, “You’re lying” without warning the defendant of the consequences of his outburst, a writ of habeas corpus was granted.

United States v. Demott, 513 F.3d 55 (11th Cir. 2008)

When a defendant is re-sentenced pursuant to a remand from the appellate court, he has the right to be present. The trial court’s summary imposition of the same sentence without announcing findings in open court and without the defendant present was error. On remand, the case would be assigned to a different judge because of the judge’s apparent lack of receptivity to the arguments of counsel (because he had not even given them an opportunity to be heard at the last proceeding).

United States v. Barnwell, 477 F.3d 844 (6th Cir. 2007)

During deliberations in this trial, an FBI agent in an unrelated case who was monitoring a wiretap determined that one of the deliberating jurors was possibly contacting people about her deliberations. Two prosecutors (not the trial prosecutors in this case), asked to speak to the judge and explained the situation. The trial prosecutors were aware of this ex parte communication. Over the next day or two, five ex parte meetings were held. The defendant and his attorneys had no idea this was occurring. There were also some meetings with the foreman (these were in the presence of the defense attorney, but he did not know exactly what prompted the meetings). Eventually, a mistrial was declared when the jury was unable to reach a verdict. The ex parte communications remained a secret. A new trial was held and the defendant was found guilty. After that trial, the events that occurred during the first trial were unsealed and furnished to defense counsel. The Sixth Circuit held that the ex parte communications violated the defendant’s right to counsel and his right to be present at all stages of the proceedings, as well as his right to be tried with an impartial judge. The court set aside the verdict in the second trial, even though it was not directly affected by the ex parte communication. The decision ends with a series of observations about the impropriety of conducting ex parte communications and the necessity of judicial impartiality.

United States v. Sepulveda-Contreras, 466 F.3d 166 (1st Cir. 2006)

After pronouncing the sentence in court, the judge prepared a written judgment that added conditions of supervised release. This violated the defendant’s right to be present when sentence was imposed.

United States v. Napier, 463 F.3d 1040 (9th Cir. 2006)

After imposing sentence orally in court, the judge entered a written order that set forth certain non-standard conditions of supervised release that exceeded what was said in court. This denied the defendant his Sixth Amendment (and Rule 43(a)(3)) right to be present when sentence was imposed.

Bradley v. Henry, 428 F.3d 811 (9th Cir. 2005)

Retained counsel asked to withdraw, claiming significant conflicts of interest, including the defendant’s failure to pay the fee. A hearing was held in chambers with the prosecutor, the defense attorney and lawyers who were destined to take over the case. The defendant, however, was not present. The Ninth Circuit held that this procedure violated he right to be present at critical stages of the proceedings. See generally Kentucky v. Stincer, 482 U.S. 730 (1987).

Bradley v. Henry, 428 F.3d 811 (9th Cir. 2005)

The exclusion of the defendant from a hearing in chambers that involved the replacement of retained counsel and a discussion about threats made to the prosecutor by the defendant’s father violated the defendant’s right to be present at all critical stages of the proceedings.

Moore v. Knight, 368 F.3d 936 (7th Cir. 2004)

During the course of their deliberations, the jury sent out a note asking specific factual questions about the defendant’s alibi. The trial judge responded, in writing, without consulting with the defendant or his counsel. The record is not entirely clear about what the judge’s responses were, but essentially, the judge instructed the jury that he would not answer their questions and that no further questions should be asked. The Seventh Circuit held that this improper ex parte communication with the jury was improper and granted a writ of habeas corpus.

United States v. Mejia, 356 F.3d 470 (2d Cir. 2004)

On the third day of deliberations, the jury sent a note to the judge indicating that they were divided 11-1 and that this had been the division for over two days. Though the parties had previously discussed an Allen charge and previous notes and responses were handled in the presence of the defendant and his counsel, this time, the judge simply sent a note back to the jury instructing it not to reveal its division to the court, hoping that the same note would be returned without a notation of the division. Shortly thereafter, the jury reached a verdict. The defendant unsuccessfully challenged the verdict on the basis of the court’s ex parte response to the jury’s note. The Second Circuit reversed the conviction, holding that responding to the jury without consulting with the attorneys and outside the presence of the defendant violated the Sixth Amendment. See also United States v. Ronder, 639 F.2d 931 (2d Cir. 1981); Krische v. Smith, 662 F.2d 177 (2d Cir. 1981).

United States v. Peters, 349 F.3d 842 (5th Cir. 2003)

During deliberations, the foreman sent out a note indicating that he was “not going to take insults and I ask to be relieved.” The parties agreed that the judge could talk to the juror in chambers alone. During the course of the meeting, however, the conversation between the court and the juror included a revelation about the current status of deliberations (11 – 1), the prospects of a mistrial (including a discussion akin to an Allen charge), and even a short explanation of the law, i.e., a substantive charge on the law.

United States v. Canady, 126 F.3d 352 (2d Cir. 1997)

A defendant's right to be present at trial includes presence during a bench trial. It also includes a right to be present when the judge announces his decision. In this case, it was improper for the judge to conclude the trial and then mail his decision to counsel at a later date. The court's announcement of the verdict should be performed in open court.

United States v. Rosales-Rodriguez, 289 F.3d 1106 (9th Cir. 2002)

The court was aware that one of the jurors would have to be excused on the second day of deliberations because of a scheduling conflict. In anticipation of the problem, the judge sent a note to the jury during the first day of deliberations explaining that if no verdict was reached by the end of the day, the deliberations would have to start over the next day with the alternate. Neither counsel, nor the defendant was aware that the court was sending this unsolicited note to the jury and neither was present when this occurred. This violated the defendant’s right to be present under Rule 43, Fed.R.Crim.P. and the Fifth and Sixth Amendments for all critical stages of the proceedings. Harmless error.

United States v. Torres-Palma, 290 F.3d 1244 (10th Cir. 2002)

The defendant’s right to be present in court is not satisfied by his presence via teleconferencing.

Cohen v. Senkowski, 290 F.3d 485 (2d Cir. 2002)

Though a defendant’s presence during the exercise of peremptory strikes is not constitutionally required, his presence at the pre-screening of jurors is constitutionally guaranteed. This applies to pre-screening sessions related to a juror’s substantive qualification, not to administrative matters, such as matters related to personal hardship.

Campbell v. Rice, 302 F.3d 892 (9th Cir. 2002)

Excluding the defendant from a hearing on his counsel’s potential conflict (the attorney was being prosecuted by the same DA’s office that was prosecuting the defendant) violated his Fourteenth Amendment right to Due Process. Reviewing the case en banc, the Ninth Circuit held that excluding the defendant from the proceeding was harmless error. 408 F.3d 1166.

United States v. Latham, 874 F.2d 852 (1st Cir. 1989)

The trial continued in the absence of the defendant after he attempted to commit suicide after the first day. This is erroneous. Unlike the case of flight to avoid trial altogether, the defendant’s attempt to commit suicide cannot be characterized as an attempt to postpone the proceedings. The mere fact that the defendant’s conduct was voluntary did not constitute a ground for proceeding in his absence.

United States v. Mackey, 915 F.2d 69 (2d Cir. 1990)

The voir dire, jury selection and the first prosecution witnesses testified prior to the defendant’s arrival at the courthouse. The defendant’s car had broken down but the trial judge concluded, “The animals do not run the zoo.” He also offered to permit the defendant to read the transcript prepared by the court reporter. The conviction was reversed.

United States v. Reiter, 897 F.2d 639 (2d Cir. 1990)

The defendant entered a guilty plea to the fourth superseding indictment and then fled. He was tried in absentia on the twelfth superseding indictment. The two indictments were insufficiently similar to justify a trial in absentia. Because of the lack of sufficient similarity, the court could not find that the defendant was aware of the nature of the proceedings against him. Absent the defendant’s appearance at arraignment, there can be no waiver of the constitutional right to be present, and the corresponding right under Rule 43.

United States v. Fontanez, 878 F.2d 33 (2d Cir. 1989)

The jury asked that certain testimony be read back to them and the judge delivered an Allen charge all in the absence of the defendant. This violates the defendant’s right to be present at all stages of the trial.

United States v. Rhodes, 32 F.3d 867 (4th Cir. 1994)

During deliberations, the jury asked about the definition of possession with intent, versus simple possession. The trial judge assembled the attorneys in chambers and discussed the proper response. The defendant was not present and his presence was not waived. This was error, though harmless.

United States v. Camacho, 955 F.2d 950 (4th Cir. 1992)

The trial judge commenced the defendant’s trial in the defendant’s absence. The defendant was delayed by bad weather. He arrived several hours after the beginning of trial – after jury selection and the first witness had been called. This was reversible error. The defendant’s failure to appear, in light of the weather problems, could not be deemed to be a waiver of his right to be present for the trial. Finally, defendant’s absence from the entire jury selection process cannot be deemed to be harmless error.

United States v. Alikpo, 944 F.2d 206 (5th Cir. 1991)

The trial court erred in conducting the bulk of the jury selection in the absence of the defendant. An express waiver by the defendant is necessary to waive the defendant’s presence at proceedings where counsel can assist the attorney, as opposed to hearings dealing solely with points of law.

United States v. Pressley, 100 F.3d 57 (7th Cir. 1996)

Rule 43(a) entitles a defendant to be present at all stages of his trial. This includes times when the judge communicates with the jury. Here, the judge communicated with a juror privately in chambers after the juror told a marshal she wanted to speak to the judge. The juror told the judge that she had previously served on a jury which had “hung” on racial lines, and this appeared to be happening again with this jury. The judge responded along the lines of “that kind of thing happens” and the juror returned. This was an improper communication outside the presence of the defendant, but the error was harmless.

United States v. Patterson, 23 F.3d 1239 (7th Cir. 1994)

While the jury was deliberating, a question was sent out. The judge instructed his secretary to call the two attorneys and solicit their proposed response. The defendant was not present and none of this was done in open court. This was improper. The defendant has a right to be present; the proceedings should be held in open court; and both attorneys should have been allowed to hear what the other attorney had to say to the judge (through the secretary). Harmless error.

United States v. Watkins, 983 F.2d 1413 (7th Cir. 1993)

The defendant resisted efforts while in the jail to be brought to trial on the first day. He was forcibly brought to court by the marshals. The defendant remained “limp” and had to be brought to court in a wheelchair. Without inquiring directly of the defendant whether he wished to waive his right to be present, the district court ordered that the defendant be removed. The court of appeals concluded that there was inadequate evidence in the record to support the lower court’s decision that the defendant waived his presence. The defendant was only present in the court for three minutes prior to his removal and the evidence of his conduct at the jail that morning was not adequately developed. Nor was the public interest served by a trial in absentia – a prerequisite even if the defendant did waive his presence.

Sturgis v. Goldsmith, 796 F.2d 1103 (9th Cir. 1986)

The trial court conducted a competency hearing without the defendant being present. This is reversible error.

Larson v. Tansy, 911 F.2d 392 (10th Cir. 1990)

The defendant was not present during the trial court’s instruction to the jury, the closing arguments and the rendering of the verdict. This violated his right to be present at all stages of the proceedings. The fact that the defendant’s attorney waived the defendant’s right to be present and the defendant said nothing when this occurred does not constitute an effective waiver. Mere acquiescence is not sufficient to waive a fundamental right. The defendant must himself waive the right to be present.

United States v. Songer, 842 F.2d 240 (10th Cir. 1988)

Although the defendant may be convicted of a criminal offense in absentia, a forfeiture proceeding cannot be held in the absence of the defendant. The Federal Rules of Criminal Procedure specifically provide for continuing a trial when a defendant intentionally absents himself, but no similar rule exists for forfeiture proceedings.

Cumbie v. Singletary, 991 F.2d 715 (11th Cir. 1993)

The trial court permitted the child molestation victim to testify via closed circuit television. The defendant was not in the room where the witness was testifying. This violated the Confrontation Clause of the Sixth Amendment and was grounds for habeas relief.

United States v. Gordon, 829 F.2d 119 (D.C.Cir. 1987)

Defense counsel waived the defendant’s right to be present during the entire jury selection process. Conviction reversed. Only a personal, on the record waiver by the defendant himself, constitutes valid waiver of his presence.