§ 36.02 RIGHT TO BE PRESENT AT TRIAL

• Jurisdiction: United States

§ 36.02. RIGHT TO BE PRESENT AT TRIAL

At the very least, the right of confrontation guarantees an accused the right to be present during trial. The Supreme Court has written: "One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial."² This right is fortified by Criminal Rule 43.³

Whether an accused has a right to attend all in camera proceedings is unclear.⁴ In Kentucky v. Stincer,⁵ the defendant, charged with child sexual abuse, was excluded from a hearing to determine the competency of two child witnesses. At the hearing, the children, ages 7 and 8, were questioned by the prosecutor and defense counsel, and were found to be competent by the trial court. Stincer challenged his exclusion from the hearing on confrontation grounds. The Supreme Court rejected his argument, with two factors influencing the Court's decision. First, the competency hearing had a limited function. The hearing was intended to determine whether the child was capable of observing, recollecting, and narrating facts to the jury and whether the child appreciated the obligation to tell the truth. Accordingly, the children were asked background questions such as their names, where they went to school, and how old they were. They were also asked whether they knew what a lie was and whether they knew what happens when one tells a lie. Thus, the issues raised at the hearing were unrelated to the basic issues of the trial.

Second, the primary function of the Confrontation Clause is to safeguard the right of cross-examination. Stincer was provided with the opportunity to cross-examine both children at trial. Some of the same questions that were asked at the hearing were again asked at trial. Moreover, the defense had the opportunity to ask whatever questions it wished on the competency issue because that issue remained open throughout the trial. In light of these two factors, the Court found against Stincer.⁶

[A] Forfeiture by Disruptive Behavior

A defendant's right to be present may be forfeited by disruptive behavior. In Illinois v. Allen,⁷ the trial judge warned Allen about his obstreperous conduct, but Allen persisted to the point of disrupting the trial. The judge ordered Allen removed from the courtroom and continued the trial without him, over his objection. The issue was whether the defendant's Sixth Amendment right to be present at his own trial was absolute. The Supreme Court held...