2008 edition - Fort Sam Houston - U.S. Army

ight to be present. See also R.C.M. 802 concerning conferences.
Rule 804. Presence of the accused at trial
proceedings
(a) Presence required. The accused shall be present
at the arraignment, the time of the plea, every stage
of the trial including sessions conducted under Article
39(a), voir dire and challenges of members, the
return of the findings, sentencing proceedings, and
post-trial sessions, if any, except as otherwise provided
by this rule.
(b) Presence by remote means. If authorized by the
regulations of the Secretary concerned, the military
judge may order the use of audiovisual technology,
such as videoteleconferencing technology, between
the parties and the military judge for purposes of
Article 39(a) sessions. Use of such audiovisual technology
will satisfy the “presence” requirement of the
accused only when the accused has a defense counsel
physically present at his location. Such technology
may include two or more remote sites as long as
all parties can see and hear each other.
(c) Continued presence not required. The further
progress of the trial to and including the return of
the findings and, if necessary, determination of a
s e n t e n c e s h a l l n o t b e p r e v e n t e d a n d t h e a c c u s e d
shall be considered to have waived the right to be
present whenever an accused, initially present:
( 1 ) I s v o l u n t a r i l y a b s e n t a f t e r a r r a i g n m e n t
(whether or not informed by the military judge of
the obligation to remain during the trial); or
(2) After being warned by the military judge that
disruptive conduct will cause the accused to be rem
o v e d f r o m t h e c o u r t r o o m , p e r s i s t s i n c o n d u c t
w h i c h i s s u c h a s t o j u s t i f y e x c l u s i o n f r o m t h e
courtroom.
Discussion
Express waiver. The accused may expressly waive the right to be
present at trial proceedings. There is no right to be absent, however,
and the accused may be required to be present over objection.
Thus, an accused cannot frustrate efforts to identify the
accused at trial by waiving the right to be present. The right to be
present is so fundamental, and the Government’s interest in the
attendance of the accused so substantial, that the accused should
be permitted to waive the right to be present only for good cause,
and only after the military judge explains to the accused the right,
R.C.M. 804(c)(2)
and the consequences of foregoing it, and secures the accused’s
personal consent to proceeding without the accused.
Voluntary absence. In any case the accused may forfeit the
right to be present by being voluntarily absent after arraignment.
“Voluntary absence” means voluntary absence from trial. For
an absence from court-martial proceedings to be voluntary, the
accused must have known of the scheduled proceedings and intentionally
missed them. For example, although an accused servicemember
might voluntarily be absent without authority, this
would not justify proceeding with a court-martial in the accused’s
a b s e n c e u n l e s s t h e a c c u s e d w a s a w a r e t h a t t h e c o u r t - m a r t i a l
would be held during the period of the absence.
An accused who is in military custody or otherwise subject
to military control at the time of trial or other proceeding may not
properly be absent from the trial or proceeding without securing
the permission of the military judge on the record.
The prosecution has the burden to establish by a preponderance
of the evidence that the accused’s absence from trial is
voluntary. Voluntariness may not be presumed, but it may be
inferred, depending on the circumstances. For example, it may be
inferred, in the absence of evidence to the contrary, that an accused
who was present when the trial recessed and who knew
when the proceedings were scheduled to resume, but who nonetheless
is not present when court reconvenes at the designated
time, is absent voluntarily.
Where there is some evidence that an accused who is absent
for a hearing or trial may lack mental capacity to stand trial,
capacity to voluntarily waive the right to be present for trial must
be shown. See R.C.M. 909.
Subsection (1) authorizes but does not require trial to proceed
in the absence of the accused upon the accused’s voluntary
absence. When an accused is absent from trial after arraignment,
a continuance or a recess may be appropriate, depending on all
the circumstances.
Removal for disruption. Trial may proceed without the presence
of an accused who has disrupted the proceedings, but only
after at least one warning by the military judge that such behavior
may result in removal from the courtroom. In order to justify
removal from the proceedings, the accused’s behavior should be
of such a nature as to materially interfere with the conduct of the
proceedings.
The military judge should consider alternatives to removal of
a disruptive accused. Such alternatives include physical restraint
(such as binding, shackling, and gagging) of the accused, or
physically segregating the accused in the courtroom. Such alternatives
need not be tried before removing a disruptive accused
under subsection (2). Removal may be preferable to such an
alternative as binding and gagging, which can be an affront to the
dignity and decorum of the proceedings.
Disruptive behavior of the accused may also constitute contempt.
See R.C.M. 809. When the accused is removed from the
courtroom for disruptive behavior, the military judge should—
(A) Afford the accused and defense counsel ample opportunity
to consult throughout the proceedings. To this end, the accused
should be held or otherwise required to remain in the
vicinity of the trial, and frequent recesses permitted to allow
counsel to confer with the accused.
(B) Take such additional steps as may be reasonably practicable
to enable the accused to be informed about the proceedings.
Although not required, technological aids, such as closed-circuit
television or audio transmissions, may be used for this purpose.
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