§ 19.02 EXCEPTION: PARTIES

• Jurisdiction: North Carolina

§ 19.02. EXCEPTION: PARTIES

A party who is a natural person may not be excluded from the trial even though that party may be called as a witness. As the federal drafters noted, the exclusion of parties "would raise serious problems of confrontation and due process."⁶ There is little question that excluding a criminal defendant from trial, in the absence of a waiver,⁷ violates the right of confrontation.⁸

Comment on accused's presence. In Portuondo v. Agard,⁹ the prosecutor, in her summation, called the jury's attention to the fact that the defendant had the opportunity to hear all other witnesses testify and to tailor his testimony accordingly. The defendant argued that these comments burdened his Sixth Amendment right to be present at trial and to be confronted with the witnesses against him, as well as his Fifth and Sixth Amendment right to testify on his own behalf. The Supreme Court rejected these arguments, noting that it would not extend the rule of Griffin v. California,¹⁰ which prohibits comments upon a defendant's refusal to testify. In Griffin, the trial court instructed the jury that it could consider the defendant's failure to deny or explain facts within his knowledge. The Griffin Court held that such a comment, by "solemnizing the silence of the accused into evidence against him," unconstitutionally "cuts down on the privilege [against self-incrimination] by making its assertion costly."¹¹ The Agard Court distinguished Griffin. The "prosecutor's comments in [Agard], by contrast, concerned respondent's credibility as a witness, and were therefore in accord with our longstanding rule that when a defendant takes the stand, 'his credibility may be impeached and his testimony assailed like that of any other witness.' "¹²

Several state courts have rejected Agard as a matter of state law, with some prohibiting comment on defendant's presence in closing argument¹³ and others permitting comment when there is specific evidence of tailoring but prohibiting generic comments.¹⁴

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Notes:

^[6] Fed. R. Evid. 615 advisory committee's note.

^[7] See infra § 36.02 (discussing the right to be present at trial).

^[8] See Perry v. Leeke, 488 U.S. 272, 282 (1989) ("The defendant's constitutional right to confront the witnesses against him immunizes him from such physical sequestration."); Taylor v. United States, 414 U.S. 17 (1973); Illinois v. Allen, 397 U.S. 337, 338 (1970) ("One of the most basic of the rights guaranteed by the Confrontation Clause is the...