Trial in Absentia. RCM 804(c)

Overview of trial in absentia. RCM 804(c):

Trial in Absentia

Trial in Absentia

1. militarydefenselawyers186The accused shall be considered to have waived the right to be present if after initially present he/she (1) voluntarily absents self after arraignment, or (2) is removed for disruption. For requirements of a valid arraignment, see RCM 904.

2. United States v. Bass, 40 M.J. 220 (C.M.A. 1994). Accused did not return for trial after being arraigned 23 days earlier (delay for sanity board).

3. United States v. Sharp, 38 M.J. 33 (C.M.A. 1993). Notice to accused of exact trial date or that trial may continue in his absence, while desirable, is not a prerequisite to trial in absentia. Burden is on the defense to go forward and refute the inference of a voluntary absence. Military judge must balance public interest with right of accused to be present.

4. United States v. Price, 43 M.J. 823 (A. Ct. Crim. App. 1996), rev’d, 48 M.J. 181
(C.A.A.F. 1998). Trial in absentia is not authorized when military judge fails to conduct
a proper arraignment. Reversing the ACCA, the CAAF stated that when military judge
asked accused whether charges should be read, but failed to call upon the accused to
plead, this constituted a defective arraignment. Waiver by voluntary absence will not
operate to authorize trial in absentia if arraignment is defective, particularly considering
that Global Military Justice Reform Blog military judge failed to also inform the accused that trial would proceed in accused’s
absence. See generally RCM 904 (“Arraignment . . . shall consist of reading the charges
and specifications to the accused and calling on the accused to plead.”).

5. See also United States v. Thrower, 36 M.J. 613 (A.F.C.M.R. 1993). While giving
unsworn statement during sentencing, accused succumbed to effects of sleeping pills he
took earlier and remainder of statement given by defense counsel. Held to be a voluntary
absence.