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300.15 Constitutional Claims: Presence Of Defendant At Trial

    300.15.1 Presence Of The Defendant At Counsel Table: Strategy Note
    300.15.2 Presence At Sidebar Discussion: Failure To Object Is Not Fatal
    300.15.3 Waiver Of Presence: Defense Counsel Lacks Power To Waive Defendant's Right To Be Present
    300.15.4 Waiver Of Presence: Advisement Of Rights That Defendant Will Waive
    300.15.5 Can Defendant's Presence Be Waived In A Capital Trial
    300.15.6 Presence Of Defendant: Specific Proceedings
    300.15.7 Absence Of Defendant Undermines Defendant's Credibility
    300.15.8 Record On Appeal: Constitutional Right

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    300.15.1    Presence Of The Defendant At Counsel Table: Strategy Note

PRACTICE NOTE: "Counsel should always request that the defendant be permitted to sit at counsel table unless, for whatever reason, this is impossible. [Citation.] The defendant’s presence there makes it easier for jurors to overcome the lay person’s notion that the defendant "would not be there if he or she wasn’t guilty." (Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) § 9-6, pp. 386-87.)

    One situation where the defendant should not be at the counsel table is in an eyewitness identification case where there is a possibility that the witness may not be able to identify the defendant. "In that situation, counsel should request the defendant sit out of sight of the witness, perhaps behind a blackboard, at least until the witness has been cross-examined as to his description of the alleged culprit. (This type of procedure is more common at a probable cause hearing before indictment where the witness is first asked to describe the assailant.)" (Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) § 9-6, p. 387, fn. 8.)

See A Manual On Jury Trial Procedures [1.6 A. Presence Of Defendant (Criminal): Defendant's Presence Generally].

See also A Manual On Jury Trial Procedures [1.6 B. Presence Of Defendant (Criminal): Pretrial Conference].

See also A Manual On Jury Trial Procedures [1.6 E. Presence Of Defendant (Criminal): In Camera Hearing With Juror].

See also A Manual On Jury Trial Procedures [1.6 G. Presence Of Defendant (Criminal): Readbacks During Deliberations].

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PRACTICE NOTE: People v. Antommarchi (NY 1992) 604 NE2d 95, 97 [failure to object to defendant’s exclusion from sidebar discussion is not fatal to his claim that his fundamental right to be present was violated].

    See NCJIC 10.1.2 [Jury Selection: Right Of Defendant To Be Present At All Phases Of Jury Selection Including Bench Or Sidebar Discussions].

See A Manual On Jury Trial Procedures [1.6 A. Presence Of Defendant (Criminal): Defendant's Presence Generally].

See also A Manual On Jury Trial Procedures [1.6 B. Presence Of Defendant (Criminal): Pretrial Conference].

See also A Manual On Jury Trial Procedures [1.6 C. Presence Of Defendant (Criminal): Voir Dire–Sidebar Conferences With Prospective Juror].

See also A Manual On Jury Trial Procedures [1.6 D. Presence Of Defendant (Criminal): Sidebar Conferences During Trial].

See also A Manual On Jury Trial Procedures [1.6 E. Presence Of Defendant (Criminal): In Camera Hearing With Juror].

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PRACTICE NOTE: See People v. Ali (NY 1993) 601 NYS2d 315, 315; see also Wharton’s Criminal Procedure (West, 13th ed. 1989) § 431, p. 819 ["...[C]ounsel for the defendant cannot waive the right of the defendant to be present, absent authorization or acquiescence by the defendant"].

See A Manual On Jury Trial Procedures [1.6 A. Presence Of Defendant (Criminal): Defendant's Presence Generally].

See also A Manual On Jury Trial Procedures [1.6 B. Presence Of Defendant (Criminal): Pretrial Conference].

See also A Manual On Jury Trial Procedures [1.6 E. Presence Of Defendant (Criminal): In Camera Hearing With Juror].

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PRACTICE NOTE: See Commonwealth v. Vega (PA 1998) 719 A2d 227 [defendant presence-absence].

See A Manual On Jury Trial Procedures [1.6 A. Presence Of Defendant (Criminal): Defendant's Presence Generally].

See also A Manual On Jury Trial Procedures [1.6 B. Presence Of Defendant (Criminal): Pretrial Conference].

See also A Manual On Jury Trial Procedures [1.6 E. Presence Of Defendant (Criminal): In Camera Hearing With Juror].

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    300.15.5    Can Defendant's Presence Be Waived In A Capital Trial

PRACTICE NOTE: Hopt v. Utah (1884) 110 US 574 [4 SCt 202; 28 LEd 262] and Lewis v. United States (1892) 146 US 370 [13 SCt 136; 36 LEd 1011] provide a basis for arguing that the defendant's right to personal presence can not be waived in a capital case. (See also Bustamante v. Eyman (9th Cir. 1972) 456 F2d 269, 271.) However, this view was rejected in U.S. v. Campbell (9th Cir. 1994) 18 F3d 662, 671-73; see also State v. Morton (NJ 1998) 715 A2d 228, 254.

See A Manual On Jury Trial Procedures [1.6 A. Presence Of Defendant (Criminal): Defendant's Presence Generally].

See also A Manual On Jury Trial Procedures [1.6 B. Presence Of Defendant (Criminal): Pretrial Conference].

See also A Manual On Jury Trial Procedures [1.6 E. Presence Of Defendant (Criminal): In Camera Hearing With Juror].

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    See NCJIC 2.6 [Presence Of Defendant Re: Instructions].

    See NCJIC 10.1.2 [Jury Selection: Right Of Defendant To Be Present At All Phases Of Jury Selection Including Bench Or Sidebar Discussions].

    See NCJIC 284.1.5 [Readback: Should Be Conducted In Open Court And In The Presence Of Counsel And Defendant].

    See NCJIC 285.1.5 [Supplemental Instuctions: Presence Of Counsel And Defendant].

    See NCJIC 287.5.4 [Jury Poll: Presence Of Counsel And Defendant].

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    See NCJIC 2.6.2 [Presence Of The Defendant: Oral Rendition Of Instructions].

See A Manual On Jury Trial Procedures [1.6 A. Presence Of Defendant (Criminal): Defendant's Presence Generally].

See also A Manual On Jury Trial Procedures [1.6 B. Presence Of Defendant (Criminal): Pretrial Conference].

See also A Manual On Jury Trial Procedures [1.6 E. Presence Of Defendant (Criminal): In Camera Hearing With Juror].

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