A probably really dumb 6th Amendment Q

[Otto]

In the internet gambling thread, an artictle (http://www.cato.org/testimony/ct-tb052198.html) was quoted regarding prosecuting people overseas:
Furthermore, the Sixth Amendment of the Constitution's Bill of Rights prohibits the criminal prosecution of those who remain overseas while operating Internet gambling sites.
referring to this clause of the amendment:
In criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . .
Agreed that defendants have the right to confront their accusers, but what stops trials in absentia if defendants choose not to exercise that right? The international aspect of a hypothetical gambling trial would certainly complicate matters, but say I'm indicted and flee the jurisdiction before trial. Isn't my failure to show up for the trial a pretty clear indicator that I've waived my right to confront my accuser?

Or has the Cato Institute just made a mistake?

[pravnik]

It's a bare bones argument and not very clearly stated, but it's more or less correct. U.S. courts don't allow for trials in absentia. The Sixth Amendment right to confront witnesses and the common law right to be present at your criminal trial are codified in Rule 43 of the Federal Rules of Criminal procedure:

Rule 43. Defendant's Presence

(a) When Required.

Unless this rule, Rule 5, or Rule 10 provides otherwise, the defendant must be present at:

(1) the initial appearance, the initial arraignment, and the plea;

(2) every trial stage, including jury impanelment and the return of the verdict; and

(3) sentencing.

(b) When Not Required. A defendant need not be present under any of the following circumstances:

(1) Organizational Defendant.

The defendant is an organization represented by counsel who is present.

(2) Misdemeanor Offense.

The offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant's written consent, the court permits arraignment, plea, trial, and sentencing to occur in the defendant's absence.

(3) Conference or Hearing on a Legal Question.

The proceeding involves only a conference or hearing on a question of law.

(4) Sentence Correction.

The proceeding involves the correction or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c).

(c) Waiving Continued Presence.

(1) In General.

A defendant who was initially present at trial, or who had pleaded guilty or nolo contendere, waives the right to be present under the following circumstances:

(A) when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial;

(B) in a noncapital case, when the defendant is voluntarily absent during sentencing; or

(C) when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom.

(2) Waiver's Effect.

If the defendant waives the right to be present, the trial may proceed to completion, including the verdict's return and sentencing, during the defendant's absence.

[anson2995]

I'm the one who made the post in the other thread, so others should feel free to contradict or correct me if I'm furthering the mistake here...

My understanding is that the Supreme Court held in Crosby v. United States (1993), that federal law prohibits the trial in absentia of a defendant who is not present at the beginning of trial.

Much of the case law on trials in absentia appears to stem from US vs Benavides (1979). While I'm not familiar with the facts of that case, I have seen references in other cases to "Benavides rules", a set of criteria for determining if a trial in absentia can be held. My layman's understanding is that generally, this can only occur when the defendant has fled after being present for indictment.

If anybody has more/differnt info, I'd love to learn more about the subject.

[pravnik]

I'm the one who made the post in the other thread, so others should feel free to contradict or correct me if I'm furthering the mistake here...

My understanding is that the Supreme Court held in Crosby v. United States (1993), that federal law prohibits the trial in absentia of a defendant who is not present at the beginning of trial.

Much of the case law on trials in absentia appears to stem from US vs Benavides (1979). While I'm not familiar with the facts of that case, I have seen references in other cases to "Benavides rules", a set of criteria for determining if a trial in absentia can be held. My layman's understanding is that generally, this can only occur when the defendant has fled after being present for indictment.Not exactly; the defendant doesn't have to be present for indictment at all, and indictment doesn't signify the beginning of a "trial" for purposes of FRCrP 43. In Benavides, the defendant fled after the jury was chosen and impaneled, but prior to any testimony. The 5th Circuit determined on appeal that the court had to balance the following factors in determining whether to proceed under Rule 43(c): 1) the likelihood that the trial could soon take place with the defendant present; 2) the difficulty of rescheduling, particularly in multi-defendant trials; 3) the burden on the government in having to undertake two trials, again particularly in multi-defendant trials; and 4) the inconvenience to the jurors.

Proceeding with the trial when the defendant absconds after trial begins sounds like a trial in absentia, but it's not exactly, although that language is sometimes used; often courts will instead use the phrase "voluntarily absented" to distinguish a defendant who flees after trial has begun. A true trial in absentia doesn't require the defendant's presnce at any portion of the trial, beginning, middle, or end. For example, it would be entirely legal for a federal grand jury to indict Osama bin Laden right now, but it wouldn't be legal to just go ahead and have a trial against him. That's the situation I understand Otto to be asking about.

[pravnik]

Speaking of which: links to the indictments in United States v. Usama bin Laden. (http://www.fas.org/irp/news/1998/11/98110602_nlt.html)