In absentia

In absentia is Latin for "in the absence". In legal use, it usually means a trial at which the defendant is not physically present. The phrase is not ordinarily a mere observation, but suggests recognition of violation to a defendant's right to be present in court proceedings in a criminal trial.

In common law legal systems, conviction of a person in absentia, that is in a trial in which he/she is not present to answer the charges, is held to be a violation of natural justice. Specifically, it violates the second principle of natural justice, audi alteram partem. By contrast, in some civil law legal systems, such as Italy, trial in absentia is permitted. Such trials may require the presence of the defendant's lawyer depending on the country.

Contents

Under United States law

For more than 100 years, courts in the United States have held that, according to the United States Constitution, a criminal defendant's right to appear in person at their trial, as a matter of due process, is protected under the Fifth, Sixth, and Fourteenth Amendments.

In 1884, the United States Supreme Court held that

the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution. Hopt v. Utah 110 US 574, 28 L Ed 262, 4 S Ct 202 (1884).

A similar holding was announced by the Arizona Supreme Court in 2004 (based on Arizona Rules of Criminal Procedure):

A voluntary waiver of the right to be present requires true freedom of choice. A trial court may infer that a defendant's absence from trial is voluntary and constitutes a waiver if a defendant had personal knowledge of the time of the proceeding, the right to be present, and had received a warning that the proceeding would take place in their absence if they failed to appear. The courts indulge every reasonable presumption against the waiver of fundamental constitutional rights. State v. Whitley, 85 P.3d 116 (2004)

Although United States Congress codified this right by approving Rule 43 of the Federal Rules of Criminal Procedure in 1946 and amended the Rule in 1973, the right is not absolute.

Rule 43 provides that a defendant shall be present

However, the following exceptions are included in the Rule:

Indeed, several U.S. Supreme Court decisions have recognized that a defendant may forfeit the right to be present at trial through disruptive behavior,[1] or through his or her voluntary absence after trial has begun.[2]

In 1993, the Supreme Court revisited Rule 43 in the case of Crosby v. United States.[3] The Court unanimously held, in an opinion written by Justice Harry Blackmun, that Rule 43 does not permit the trial in absentia of a defendant who is absent at the beginning of trial.

This case requires us to decide whether Federal Rule of Criminal Procedure 43 permits the trial in absentia of a defendant who absconds prior to trial and is absent at its beginning. We hold that it does not. ...The Rule declares explicitly: "The defendant shall be present . . . at every stage of the trial . . . except as otherwise provided by this rule" (emphasis added). The list of situations in which the trial may proceed without the defendant is marked as exclusive not by the "expression of one" circumstance, but rather by the express use of a limiting phrase. In that respect the language and structure of the Rule could not be more clear."

However, the Crosby Court reiterated an 80-year-old precedent that

Where the offense is not capital and the accused is not in custody, . . . if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present. Diaz v. United States, 223 U.S. at 455 [1912] (emphasis added).

Some state laws provide for automatic retrial of fugitives who are arrested after being convicted in absentia.[4]

Examples

Examples of people convicted in absentia are:

See also

References

  1. ^ Illinois v. Allen, 397 U.S. 337 (1970)
  2. ^ Taylor v. United States, 414 U.S. 17 (1973)
  3. ^ 506 U.S. 255
  4. ^ "Pakistan | Cases against PM’s wife withdrawn by NAB". Dawn.Com. http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/news/pakistan/09-cases-against-pms-wife-withdrawn-by-nab--szh-11. Retrieved 8 November 2010. 
  5. ^ Thomas, Robert McG. "Boleslavs Maikovskis, 92; Fled War-Crimes Investigation". The New York Times. 8 May 1996. Retrieved 4 December 2009.
  6. ^ U.S. military: Iraqi lawmaker is U.S. Embassy bomber
  7. ^ "Agent of Chilean Secret Service Convicted of Murder Attempt". UPI. 11 March 1993. 
  8. ^ From CNN Correspondent Michael Ware (22 February 2007). "U.S. military: Iraqi lawmaker is U.S. Embassy bomber". CNN.com. http://www.cnn.com/2007/WORLD/meast/02/05/iraq.lawmaker/index.html. Retrieved 8 November 2010. 
  9. ^ Blair, David (12 April 2008). "Embassy bomber given Iraq coalition seat". Telegraph. http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/02/06/wiraqmp106.xml. Retrieved 8 November 2010. 
  10. ^ Russia Today – Georgian ex-minister gets 11 year sentence (28 March 2008)