NCJ Number
64635
Journal
St John's Law Review Volume: 53 Issue: 4 Dated: (SUMMER 1979) Pages: 721-745
Date Published
1979
Length
25 pages
Annotation
THIS ARTICLE DISCUSSES THE STATE OF THE LAW APPLICABLE TO TRIAL IN ABSENTIA, THE ORIGINS OF THE LAW, AND THE RATIONALE BY WHICH THE CONSTITUTIONAL RIGHT TO BE PRESENT IS DEEMED WAIVED BY ABSENCE.
Abstract
IT HAS LONG BEEN SETTLED THAT DEFENDANTS IN CRIMINAL CASES WHO DELIBERATELY ABSENT THEMSELVES AFTER THEIR TRIALS HAVE BEGUN WAIVE THEIR RIGHTS TO BE PRESENT AND MAY BE TRIED IN ABSENTIA. EQUALLY LONGSTANDING IS THE MISCONCEPTION THAT UNLESS THE TRIAL HAS, IN FACT, BEGUN WHEN THE DEFENDANT WANDERS, NO LEGAL AUTHORITY EXISTS FOR SUCH TRIAL. HOWEVER, NO SUCH IMPEDIMENT EXISTS, AND THE PRACTICE OF TRYING IN ABSENTIA THOSE WHO DISAPPEAR BEFORE THE TRIAL IS INCREASING. THE RIGHT OF THE ACCUSED TO BE PRESENT AT TRIAL IS TRACEABLE TO EARLY ANGLO-SAXON LAW AND CURRENTLY TO THE SIXTH AMENDMENT. IN DIAZ V. UNITED STATES AND FALK V. UNITED STATES TRIAL IN ABSENTIA WAS HELD TO BE LAWFUL IN THE CONTEXT OF THE DEFENDANT LEAVING AFTER TRIAL COMMENCEMENT. SINCE THE 1973 DECISION IN TACON V. ARIZONA, THE COURTS OF APPEALS FOR THE THIRD AND FOURTH CIRCUITS HAVE AFFIRMED CONVICTIONS AFTER TRIALS HAVE BEGUN IN ABSENTIA. AT LEAST TWO STATES OTHER THAN ARIZONA HAVE ALSO PERMITTED COMMENCEMENT OF TRIAL IN ABSENTIA. EARLY CASES DEVOTE SCANT CONSIDERATION TO THE NATURE OF THE WAIVER IMPUTED TO DEFENDANTS WHO VOLUNTARILY ABSENT THEMSELVES FROM TRIAL. IN GENERAL, THE COURTS HAVE BEEN SCRUPULOUS IN PROTECTING OFFENDERS' RIGHTS. WAIVER BY VOLUNTARY ABSENCE ACTS AS A WAIVER OF NEITHER RIGHT TO COUNSEL NOR TO THE REQUIREMENT THAT THE PROSECUTION PROVE GUILT BEYOND A REASONABLE DOUBT. IN MOST JURISDICTIONS, DEFENDANTS WHO BECOME FUGITIVES PRIOR TO TRIAL CAN PREVENT THEIR TRIALS AS LONG AS THEY CAN ESCAPE APPREHENSION. OTHER JURISDICTIONS SHOULD ADOPT ARIZONA'S PROCEDURE OF NOTIFYING DEFENDANTS THAT TRIALS WILL PROCEED IN THEIR ABSENCE; THEY SHOULD REGARD TRIAL IN ABSENTIA AS A VIABLE ALTERNATIVE TO UNNECESSARY TRIAL DELAY. FOOTNOTES ARE INCLUDED. (LWM)