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VOLUME 16 - CHAPTER 300
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300.24 Right To Presence Of Trial Judge

    300.24.1 Constitutional Claims: Judge's Presence Is A Fundamental Right
    300.24.2 Constitutional Claims: Can The Presence Of The Judge Be Waived?
    300.24.3 Constitutional Claims: Presumption Of Prejudice From Absence Of Judge

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VOLUME 16 - CHAPTER 300

PRACTICE NOTE: "There can be no court without a presiding judge, in which case there can be no trial unless a judge is present." (Wharton’s Criminal Procedure (West, 13th ed. 1989) § 4, p.5.) Hence, a judge's absence during a criminal trial, including court proceedings after a jury begins deliberations, is error of constitutional magnitude. (See Peri v. State (FL 1983) 426 So2d 1021, 1023-24 [listing state court cases recognizing this principle]; see also Riley v. Deeds (9th Cir 1995) 56 F3d 1117, 1119; see also People v. Salyer (CO 2003) 80 P.3d 831, 838 ["it is error of constitutional magnitude for a judge, even with the parties’ consent, to absent himself or herself from the courtroom during the presentation of evidence to a jury" and "might well require reversal on appeal"].)

    "When a judge is absent at a 'critical stage' the forum is destroyed. [Citation.] There is no trial. The structure has been removed. There is no way of repairing it." (U.S. v. Mortimer (3rd Cir. 1998) 161 F3d 240, 241.) Moreover, the absence of the judge may prejudicially suggest to the jury that the defendant is not worth listening to. (Ibid.)

    The presence of a judge is at the "very core" of the constitutional guarantee of trial by an impartial jury. (Riley, 56 F3d at 1119.)

See A Manual On Jury Trial Procedures [1.7A. Delegation Of District Court’s Responsibilities To Magistrate Judge: Criminal Proceedings].

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 VOLUME 16 - CHAPTER 300

PRACTICE NOTE: Courts which have considered the question disagree whether the right to have a judge present throughout the trial can be waived, and whether failure to object to the judge's absence constitutes waiver. (See e.g., State v. Patterson (CT 1994) 645 A2d 535, 543 [right can be waived]; Brown v. State (FL 1989) 538 So2d 833, 835 [waiver cannot be implied from failure to object]; Carter v. State (FL 1987) 512 So2d 284, 285 [waiver must be knowing and intelligent; stipulation by counsel insufficient]; see also Wharton’s Criminal Procedure (West, 13th ed. 1989) § 4, pp. 7-8.)

See A Manual On Jury Trial Procedures [1.7 A. Delegation Of District Court’s Responsibilities To Magistrate Judge: Criminal Proceedings].

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VOLUME 16 - CHAPTER 300

    300.24.3    Constitutional Claims: Presumption Of Prejudice From Absence Of Judge

PRACTICE NOTE: There is a split of authority among courts which have considered the issue whether a judge's absence during the trial process is reversible error per se or whether it is the type of error which may be subjected to harmless error analysis. Some courts have held a judge's absence renders any judgment reached in the case null and void. (See e.g., Peri v. State (FL 1983) 426 So2d 1021, 1027; Brown v. State (FL 1989) 538 So2d 833, 836 [holding that "communication from the jury must be received by the trial judge in person and the absence of the judge when a communication is received and answered is reversible error"]; Glee v. State (FL 1994) 639 So2d 1092, 1093 [if trial judge leaves courtroom during readback of testimony to jury, there is reversible error per se]; see also State v. O'Connor, (SD 1985) 378 NW2d 248, 258-59 (Henderson, J., dissenting).) Other courts will reverse a conviction on this ground only if the defendant suffered prejudice as a result of the judge's absence. (See e.g., Haith v. United States (3rd Cir. 1965) 342 F2d 158, 159; Taylor v. United States (E.D. Penn. 1974) 386 FSupp 132, 144-46; State v. James (AZ 1974) 519 P2d 33, 36; People v. Garcia (CO 1992) 826 P2d 1259, 1266; Brady v. State (IN 1984) 459 NE2d 719, 722; Sand v. State (MO 1985) 467 So2d 907, 908-10.)

    "The absence of the judge during the examination of witnesses, during the argument of counsel, or at the time the jury returns its verdict, will ordinarily constitute prejudicial error." (Wharton’s Criminal Procedure (West, 13th ed. 1989) § 4, p. 7-8.)

    A conviction obtained after a proceeding in which no judge presided and no judicial discretion was exercised is "abhorrent to democratic conceptions of justice." In these circumstances, there is a breakdown in the construct of the trial, a structural collapse so severe that its effect on the trial cannot be "quantitatively assessed in the context of the other evidence presented."  (Riley v. Deeds (1995) 56 F3d 1117, 1120.) "In this structural vacuum, a rule requiring the defendant to show prejudice, or one requiring the state to show lack of prejudice, makes no sense. [Citation.]" (Id. at 1121.)

BRIEFING AVAILABLE: Click here. [Brief Bank # B-913].