8.3 - C. Defendant's Right To Be Present At Pretrial Hearings

• Jurisdiction: New York

C. Defendant’s Right to Be Present at Pretrial Hearings

Although there certainly are differences between a trial and a pretrial hearing, many constitutional, statutory and judicially created rights enjoyed by criminal defendants at trial also apply at pretrial hearings. For example, a defendant has a Sixth Amendment right to a “public trial,” which means that the courtroom cannot be closed, except in special circumstances.¹⁴¹⁴ The same is true at pretrial hearings.¹⁴¹⁵

The confrontation clause of the U.S. Constitution guarantees a criminal defendant the right to confront witnesses against him.¹⁴¹⁶ This means he possesses a right to be present at all material stages of a trial,¹⁴¹⁷ including a pretrial hearing on a motion to suppress evidence.¹⁴¹⁸

The guiding principle is that a defendant’s right to be present at a pretrial hearing depends upon the nature of the proceeding. If the subject is strictly a matter of law, the defendant possesses no right to be present. Conversely, if the subject is at least partly factual, where the defendant can assist the attorney with information or a relevant viewpoint, then a right to be present will generally exist.

Thus, at a Sandoval¹⁴¹⁹ hearing, where the topic concerns the extent to which the People may cross-examine a defendant based upon his criminal convictions and other bad acts, the defendant possesses relevant information and has a right to be present¹⁴²⁰ unless such presence would be superfluous.¹⁴²¹ This right has been held to be retroactive.¹⁴²² Similarly, at a Ventimiglia¹⁴²³ hearing, where the topic also concerns the defendant’s criminal convictions and other bad acts (i.e., the extent to which the prosecution may prove these facts on its direct case), the defendant has a right to be present.¹⁴²⁴ A defendant’s presence is also required at a hearing on the admissibility of his alleged threats against a witness.¹⁴²⁵

A defendant also has a right to be present at the voir dire of prospective jurors,¹⁴²⁶ including a sidebar for discussion of a prospective juror’s ability to “weigh evidence objectively and to hear testimony impartially.”¹⁴²⁷ The failure to allow the defendant’s presence at such a sidebar requires a reversal, even in the absence of an objection.¹⁴²⁸ However, a defendant who wishes to appeal on this ground must create an adequate record.¹⁴²⁹ The Antommarchi rule¹⁴³⁰ has been held to be one of statutory,¹⁴³¹ not constitutional, origin, requiring only prospective application.¹⁴³² Moreover, the “rule against superfluities” applies here as well. Thus, where the record shows that a prospective juror was challenged for cause, or challenged peremptorily by the People, the failure to include the defendant at sidebars relating to these individuals does not require reversal. This is so because any benefit from the defendant’s presence is purely speculative.¹⁴³³ Similarly, the court has held that a later reenactment in the defendant’s presence of the sidebar from which he was excluded was sufficient to cure the error.¹⁴³⁴ Antommarchi rights may be implicitly or explicitly waived.¹⁴³⁵

On the other hand, a defendant has no right to be present at the following hearings: on a motion to withdraw a prior motion to controvert findings of competency,¹⁴³⁶ legal argument concerning whether the defendant’s testimony opened the door to cross-examination on a prior conviction,¹⁴³⁷ argument to the court concerning the audibility of tapes,¹⁴³⁸ pre-charge conference,¹⁴³⁹ sufficiency of a readback of testimony¹⁴⁴⁰ and discussion concerning declaration of a mistrial.¹⁴⁴¹

A shackled defendant at a pretrial hearing, so long as he is otherwise present and privy to proceedings factual where he can assist with information and input, does not raise federal or state constitutional due process issues. There is no jury present. ¹⁴⁴²

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Notes:

^[1414] . See, e.g., People v. Ramos, 90 N.Y.2d 490, 662 N.Y.S.2d 739 (1997).

^[1415] . See, e.g., People v. Ming Li, 91 N.Y.2d 913, 669 N.Y.S.2d 527 (1998) (Certain spectators excluded from courtroom during testimony of complaining witness, who was so frightened that he was unable to continue in their presence.).

^[1416] . U.S. Const. amend. VI.

^[1417] . Snyder v. Massachusetts, 291 U.S. 97 (1934), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1 (1964); People v. Mullen, 44...