Right To Be Present at Trial

Explanation of the right to be present at trial:

  1. Right To Be Present at TrialGeneral Rule. The accused has a 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. Commonwealth , 291 U.S. 97, 105-6 (1933).
  2. Disruptive Accused.
    1. In Illinois v. Allen,
      397 U.S. 337 (1970), the Court held that a disruptive defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can be reclaimed if the defendant is willing to conduct himself consistently with the decorum and respect inherent in judicial proceedings.
    2. RCM 804. A military judge faced with a disorderly and disruptive accused has 3 constitutionally permissible responses: (1) bind and gag the accused as a last resort, thereby keeping him present; (2) cite the accused for criminal contempt; (3) remove the accused from the courtroom until he promises to conduct himself properly.
  3. Intentionally absent accused. Trial may continue in the absence of the accused when the accused voluntarily absents himself from trial. R.C.M. 804(b) and
    United States v McCollum , 56 M.J. 837 (A.F. Ct. Crim. App. 2002),
    aff’d , 58 M.J. 323, (2003) (accused voluntarily absented himself so that child-victim could testify in the courtroom).