Defendant's Right To Be Present At Every Stage of the Trial and Every Critical Stage of the Case

• Jurisdiction: Maryland

II. Defendant's right to be present at every stage of the trial and every critical stage of the case

In Wildermuth v. State, 310 Md. 496, 528 (1987), the Court of Appeals held:

To some degree the right of confrontation and the right to be present may overlap, but the latter extends beyond the former in certain respects. For example, examination of jurors in voir dire does not involve confrontation between [the defendant] and accusers. Nevertheless, it is a critical stage of the trial, and absent waiver, the Defendant is entitled to be present at it.

Id. at 528 (citations omitted).

A defendant has the right to be present "in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934) (overruled on separate grounds by Malloy v. Hogan, 378 U.S. 1 (1964)).

In Illinois v. Allen, 397 U.S. 337, 338 (1970), the Supreme Court held that the defendant's Sixth Amendment right to conformation includes the right to be present in the courtroom at every stage of the trial. See Lewis v. United States, 146 U.S. 370, 378 (1892); Perez v. State, 420 Md. 57, 65 (2011); Denicolis v. State, 378 Md. 646, 656-57 (2003); Brown v. State, 272 Md. 450, 458 (1974) ("testimony concerning the guilt of the Defendant cannot be submitted during his involuntary absence"); Midgett v. State, 216 Md. 26, 36-37 (1958); Biglari v. State, 156 Md. App. 657, 670-71 (2004).

In Hopt v. Utah, 110 U.S. 574 (1884), the Supreme Court stated: "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." Id. at 579. In Pinkney v. State, 350 Md. 201 (1998), the Court of Appeals stated that "[t]he right to be present at trial implicates a panoply of rights and vindicates two primary interests: enabling the Defendant to assist in the presentation of a defense, and ensuring the appearance of fairness in the execution of justice." Id. at 209.

In Maryland, the right to be present is a common law right that is guaranteed by Md. Decl. of Rights art. 5 and Md. Rule 4-231. Williams v. State, 292 Md. 291, 211 (1981). The right to be present is guaranteed by the Fourteenth Amendment whenever the defendant's "'presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'" Hughes v. State, 288 Md. 216, 224 (1980) (quoting Snyder, 291 U.S. at 105-06).

In Pinkney, the Court of Appeals stated: "The constitutional right of a Defendant to be present at trial is rooted largely in the right to confront witnesses and is also protected in some situations by the Due Process Clause where the right of confrontation is not implicated." 350 Md. at 209 (citing United States v. Gagnon, 470 U.S. 522, 526 (1985); Wildermuth, 310 Md. at 528).

A. Stages of the trial and the right to be present

In Williams, 292 Md. 201, the Court of Appeals held, prospectively, that some of the defendant's right to be present are "fundamental rights" and others are not. The Court held that the right to be present is a "fundamental right" if the occurrence involves the right to confrontation or any other right requiring an intelligent and knowing action by the defendant or a knowing and intelligent waiver.

Whether a particular event constitutes a stage of the trial, giving the defendant the right to be present depends not only on the "when" of the event, but also the "what" of the event. In Hughes, 288 Md. 216, the Court of Appeals stated:

Ordinarily, the right to be present does not attach until the process of impanelling begins.
. . .
[However, t]here are circumstances in which the trial, once it has begun, may be said to be "suspended" so that the court may attend to administrative or "housekeeping" duties in connection with trial.

Id. at 224-25.

In Tisdale v. State, 41 Md. App. 149 (1979), the Court of Special Appeals indicated that, if there is doubt as to whether a particular matter is a "stage of the trial," courts should resolve the issue in favor of requiring the presence of the defendant. The Court stated:

[W]e caution the trial courts that a Defendant's right of presence is a fundamental one, not to be trifled with; and, if there is the slightest doubt as to whether a particular matter or event arising during the course of a trial is a "stage of trial" requiring the Defendant's presence, the doubt should, wherever possible, be resolved in his favor; i.e., mandating his presence.

Id. at 153.

The defendant's right to be present at trial trumps the sequestration rule. In Perry v. Leeke, 488 U.S. 272 (1989), the Supreme Court stated: "The Defendant's constitutional right to confront the witnesses against him immunizes him from . . . physical sequestration." Id. at 282; accord Edmonds v. State, 138 Md. App. 438, 450 (2001).

1. Preliminary hearing

Md. Rule 4-231(b) provides that "[a] Defendant is entitled to be physically present in person at a preliminary hearing. . . ."

2. Pre-trial suppression hearing

In Redman v. State, 26 Md. App. 241, 247-48 (1975), the Court of Special Appeals held that a suppression hearing is a stage of the trial.

3. During a deposition

The defendant has a right to be present during a deposition in which testimony is given that is later used at trial. State v. Collins, 265 Md. 70, 78 (1972). See Redman, 26 Md. App. at 243-44.

4. During a continuance hearing

In Hughes, 288 Md. at 217, 229, the Court of Appeals held that the defendant has a right to be present at a hearing on a motion for continuance. See Leckliter v. State, 75 Md. App. 143, 153 (1988).

5. Impaneling a jury and voir dire

In Porter v. State, 289 Md. 349, 353 (1981), the Court of Appeals stated that the defendant's right to be present generally attaches when the process of impaneling the jury begins. Hughes, 288 Md. at 224-25; but see Goldstein v. State, 220 Md. 39, 46-47 (1959) (no right to be present when the judge gave jurors a copy of the "Handbook for Jurors" prior to the jury being impaneled).

In Haley v. State, 40 Md. App. 349 (1978), the Court of Special Appeals stated: "There can be no doubt . . . that examination of prospective jurors on their voir dire is a stage of trial at which the Defendant has the right to be present." Id. at 353. In Powell v. State, 406 Md. 679 (2008), the Court of Appeals stated: "The Defendant . . . has the right to participate in the selection of a jury that the Defendant 'might believe to be favorably disposed to his fate.'" Id. at 692 (quoting United States v. Jorn, 400 U.S. 470, 486 (1971)).

In Bedford v. State, 317 Md. 659 (1989), the Court of Appeals held that forcing a defendant to sit six feet away from trial counsel for security reasons violated the defendant's right to be "present" and that "the Defendant must be afforded every opportunity to 'size up' his jury and to fully examine each juror so as to assist counsel in determining which jurors should be disqualified for cause or even for no cause at all." Id. at 673.

In Noble v. State, 293 Md. 549, 571-72 (1982), the Court of Appeals held that, although it was improper to exclude the defendant from a bench conference discussing bias of a potential juror, it was harmless error when that juror was disqualified.

In State v. Yancey, 442 Md. 616, 630-31 (2015), the Court of Appeals held that the exclusion of the defendant at a bench conference discussing bias of a potential juror was reversible error even though the defendant was present for all other bench conferences.

6. Bench conference on juror qualification or disqualification

In Williams, 292 Md. at 212, the Court of Appeals held that a bench conference in which potential jurors are interviewed regarding impartiality is a stage of the trial. After the jury has been impaneled, a defendant must be present when jury impartiality, bias, or disqualification is discussed at a bench conference. Porter, 289 Md. at 358; Bunch v. State, 281 Md. 680, 686-87 (1978); Tisdale, 41 Md. App. at 156.

7. During trial testimony

In Brown, 272 Md. 450, the Court of Appeals held:

It is, of course, fundamental not

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