Trial: General Characteristics; The Opening Stage

AuthorAnthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
ProfessionUniversity Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
Pages635-656
635
CHAPTER 27
TRIAL: GENERAL
CHAR ACTERISTICS; THE
OPENING STAGE
PART A. GENERAL CHAR ACTERISTICS
OF THE TRIAL
§ 27.01 The Respondent’s Presence During the Tr ial
Under ordinary circumstances a criminal trial ca nnot be held in absentia, see Drope v.
Missouri, 420 U.S. 162, 182 (1975), and the same rule applies to juvenile prosecut ions,
see, e.g., R.L.R. v. State, 487 P.2d 27, 42–43 (Alaska 1971); In the Matter of Rodney R., 119
A.D.2d 677, 500 N.Y.S.2d 805 (N.Y. App. Div., 2d Dep’t 1986). The accused “has a right
to be present at all important stages of trial.” McKaskle v. Wiggins, 465 U.S. 168, 178
(1984) (dic tu m); Ins yxiengmay v. Morgan, 403 F.3d 657, 669 (9th Cir. 2005); cf. Rushen v.
Spain, 464 U.S. 114, 117 (1983) (per curiam) (dictum).
In most jurisdict ions the right derives from several sources. It is often conferred by
statute or rule of court; it is held to be protected by the common state constitutional
guarantees of due process and of confrontation; and it is protected by the Due Process
Clause of the Fourteenth Amendment and by the Confrontation Clause of the Sixth
Amendment to the federal Constitution. The latter two components of the right over-
lap but are not coextensive. “The [Supreme] Court has assumed that, even in situations
where the defendant is not actually confronting witnesses or ev idence against him, he
has a due process right ‘to be present in his ow n person whenever his presence has a
relation, reasonably substantial, to t he fullness of his opportunit y to defend against the
charge.’” Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (dictum); see also United States v.
Gagnon, 470 U.S. 522, 526 (1985) (per curiam) (dictum) (same, quoting Snyder v. Mas-
sachusett s, 291 U.S. 97, 105–06 (1934)); Faretta v. Califor nia, 422 U.S. 806, 819 n.15 (1975)
(dictum) (“an accused has a right to be present at all stages of the trial where his absence
might frustrate the fairness of the proceedings”); Riggins v. Nevada, 504 U.S. 127, 142
(1992) (Justice Kennedy, concurring in the judgment) (an accused’s “right to be present
at trial . . . derives f rom the right to testify and rights under the Con frontation Clause”).
636 | Trial M anual for Defense Attorne ys in Juvenile Delinquency Ca ses
In the Stincer opinion, the Court elaborates the scope of this Due Process right by
saying that it is a “right to be present at any stage of the criminal proceeding that is
critical to its outcome if [the defendant’s] . . . presence would contribute to the fair ness
of the procedure.” 482 U.S. at 745. The same opinion seems to treat the measure of the
Confrontation Clause right as “whether t here has been any interference with the defen-
dant’s opportunity for effective cross-examination,” id. at 744 –45 n.17, as a result of the
defendant’s exclusion during a stage of the trial at which t he testimony of prosecution
witnesses is received, see id. at 739–40. But the right is broader than that because the
Court has squarely held that “the Con frontation Clause guarantees the defendant a face-
to-face meeting with w itnesses appearing before the trier of fact” i n at least one situation
in which the right of effect ive cross-exami nation was not significant ly implicated. Coy
v. Iowa , 487 U.S. 1012, 1016 (1988) (holding that the Confrontation Clause was violated
by a procedure under which a screen was placed between the defendant and child com-
plainants while t hey testified in a sex case, with no “individualized findings” that the
“particular witnesses needed special protection,” id. at 1021). See also Maryland v. Craig,
497 U.S. 836, 850 (1990) (dictum) (“our precedents confirm that a defendant’s right to
confront accusatory wit nesses may be satisf ied absent a physical, face-to-face confronta-
tion at trial only where denia l of such confrontation is necessary to fur ther an important
public policy and only where the reliabilit y of the testimony is otherwise assu red”). (For
further discussion of the Coy and Craig cases, see § 46.01 infra.)
Whatever the exact scope of t hese several rights in esoteric situat ions, their effect in
the ordinar y case is to require the respondent’s physical presence in court during all pro-
ceedings in which fact ual matters are at issue or in which dispositive rulings are made by
the court, but not during arguments of purely legal questions or discussions of matters of
trial admi nistration at sidebar or in chambers. Cf. United S tates v. Gagn on, 470 U.S. at 526–
29 (Constitution not violated by defendants’ absence from chambers proceedi ngs in which
a juror who had expressed concern t hat one defendant appeared to be sketching ju ry mem-
bers in the courtroom was questioned by court and counsel); Kentucky v. Stincer, 482 U.S.
at 739–47 (Constitution not violated by defendant’s absence from chambers proceedings
in which prospective ch ild witnesses were examined by court and counsel to determine
their competency to testify; the Court notes t hat the same questions asked of the wit-
nesses in chambers could have been repeated in open cou rt and that the trial court ’s ruli ng
that the witnesse s were competent was subject to reconsideration during t heir courtroom
testimony). Many trial judges routinely permit the respondent to be present during even
chambers conferences on minor matters, a nd counsel should ordinarily request that his or
her client be allowed to attend every proceeding in t he case. This will reassure the client
that counsel is not “selling out” in pr ivate conversations with t he judge and prosecutor and
will forestall postconviction allegations of covert “deals” between counsel a nd the court.
Proceedings that the respondent has a right to attend may be held in his or her
absence only when:
(a) the resp ondent has personally wa ived the right to be present, see Taylor v. Illinois,
484 U.S. 400, 418 n.24 (1988) (dictum), citing Cross v. United States, 325 F.2d 629
(D.C. Cir. 1963), or

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