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VOLUME 17 - CHAPTER 301
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301.7 Death Penalty: Defendant’s Right To Personal Presence

    301.7.1 Death Penalty: Defendant's Right To Personal Presence -- General Principles
    301.7.2 Death Penalty: Defendant Has Right To Be Present At The Verdict

    THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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VOLUME 17 - CHAPTER 301

    See NCJIC 300.15 [Presence Of Defendant At Trial].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 17 - CHAPTER 301

PRACTICE NOTE: A defendant has a due process right to be present in court when the presence bears a reasonably substantial relation to the opportunity to defend but not where the presence would be useless.  (Snyder v. Massachusetts (1934) 291 US 97, 105 [54 SCt 330; 78 LEd2d 674].) The Supreme Court, however, has not specifically addressed the constitutionality of a capital defendant’s absence when a jury announces sentence. In Rice v. Wood (9th Cir. 1996) 77 F3d 1138, 1144, a case in which the state conceded that petitioner’s absence from the reading of her capital sentencing verdict amounted to constitutional error, the Ninth Circuit held that the error was not structural error and upheld the verdict under a harmless error analysis.

    As to whether a capital defendant may waive personal presence, see NCJIC 300.15.5 [Can Defendant's Presence Be Waived In A Capital Trial]; see also Campbell v. Wood (9th Cir. 1994) 18 F3d 662, 670-71 [felony defendant has fundamental right to be present at every stage of trial; right may be waived if voluntary, knowing, and intelligent].

See Capital Punishment Handbook [4.1.8a. Right To Be Present At Verdict: General Principles And Authorities].