TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 18. Presence of Defendant; Waiver and Forfeiture of Presence
Presence of Defendant. In any prosecution for crime the defendant shall be entitled to be present at all critical stages of the proceedings, as Const. art. I § 6 secures.
Critical Stages. The critical stages at which the defendant is entitled to be present include the first appearance held under Rule 3.1, the arraignment, the entry of a plea, any preliminary hearing held under Rule 7.2, the pretrial hearing and any compliance hearing, the hearing of any pretrial motion at which evidence is taken, the impanelling of a jury, every stage of the trial including the impanelment and every conference held in the presence of the fact finder, the return of the verdict or finding, and the imposition of sentence.
Presence by Electronic Means. A defendant is present for the purposes of this rule when the defendant is in attendance in the case’s proceeding communications, or at an in-game location designated by the court, in such a manner that the defendant can perceive the proceeding, can be heard by the court, and can communicate privately with counsel. The court shall confirm the defendant’s username upon the record at the commencement of each proceeding and shall afford counsel and the defendant a means of private communication during it.
General Rule. Except as this rule, Rules 18.1 through 18.5, and 6 R. Stat. § 131.501 provide, no defendant shall be tried before the criminal division of any court of this State in the defendant’s absence. 6 R. Stat. § 131.501(a).
Waiver or Forfeiture of Presence. A defendant may waive or forfeit the right to be present at trial, in whole or in part, only as 6 R. Stat. § 131.501(b) provides, namely:
expressly, in the manner prescribed by subdivision (c) of this rule; or
No Other Ground. No other act, omission, or circumstance operates as a waiver or a forfeiture of the right to be present. A waiver made by counsel alone is of no effect. Neither a declaration of fugitive status under Rule 33, nor the entry of a criminal default under Rule 18.2, nor the issuance of a warrant, of itself waives or forfeits the right to be present or authorizes a trial in the defendant’s absence.
Express Waiver of Presence.
How Made. An express waiver of presence for trial shall be made by the defendant personally, either in open court before a state judge or by a signed writing acknowledged before a state judge, as 6 R. Stat. § 131.501(b)(1) requires. A waiver arising from a failure to appear is governed by Rule 18.3 and not by this subdivision.
Advice Before Accepting the Waiver. Before accepting a waiver under this subdivision the court shall inform the defendant, upon the record:
of the nature of each charge and the maximum sentence upon each, including any mandatory minimum;
that the trial will proceed without the defendant, and that a verdict or finding, a judgment, and a sentence may be rendered in the defendant’s absence;
that the defendant will be represented at every stage by counsel, retained or appointed, as 6 R. Stat. § 131.501(f) requires, and that the defendant may not conduct the defense in person while absent;
that the waiver does not waive the right to appeal or the right to seek post-conviction relief, as 6 R. Stat. § 131.501(g) provides; and
that the waiver may be withdrawn at any time before the return of the verdict or finding by the defendant’s appearance, but that a proceeding already completed will not be repeated by reason of the withdrawal alone.
Determination. The court shall determine upon the record that the waiver is knowing, intelligent, and voluntary, and that the defendant is competent to make it.
Counsel Required. No waiver shall be accepted from a defendant who is not represented by counsel. Where the defendant has waived counsel under Rule 8.1, the court shall appoint counsel under Rule 8 before accepting a waiver under this subdivision, and the right of self-representation is terminated for the period of the absence as Rule 18.4(b) provides.
Scope; Partial Waiver. A waiver may extend to the whole of the trial or to a stated part of it, and shall state which. A waiver of presence at trial does not waive presence at the imposition of sentence unless the defendant expressly so states and the court so finds upon the record.
Capital Prosecutions. No waiver shall be accepted as to the sentencing phase of a prosecution for an offense for which a sentence of death is permitted by 6 R. Stat. § 131.402. Rule 28.3(3)(c).
Entry. The court shall enter the waiver upon the docket, reciting the findings made under this subdivision, and shall cause any written waiver to be filed in the matter.
Withdrawal. A defendant who appears before the verdict or finding is returned may withdraw the waiver and resume presence, and the court shall permit the withdrawal. Rule 18.4(f) governs the conduct of the proceeding upon the defendant’s return.
Absence of the Defendant After Trial Has Begun. Where a defendant who has not waived presence under subdivision (c) is present at the beginning of a trial and thereafter absents himself, the judge shall recess the proceeding for a stated period not exceeding six (6) hours and shall, within that period:
direct counsel to attempt to reach the defendant at the account of record and to report to the court;
direct the clerk to transmit notice to the defendant’s account of record stating the time by which the defendant shall appear and that the trial may proceed in the defendant’s absence;
upon the motion of the State or upon its own initiative, proceed under Rule 18.3, which shall be conducted upon the expedited footing that Rule 18.3(c)(2) prescribes.
Where the Trial May Not Proceed. Where authorization is denied under Rule 18.3, or where the requirements of that rule cannot be satisfied, the judge shall continue the trial to a date certain or shall declare a mistrial under Rule 27 where the defendant cannot be produced within a reasonable time. A mistrial declared because of the defendant’s voluntary absence is occasioned by manifest necessity and does not bar a further prosecution for the same offense.
Waiver of Presence in Proceedings Other Than Trial. A person prosecuted for a misdemeanor may, at his own request and with leave of court, be excused from attendance at a proceeding other than the trial, the return of the verdict or finding, and the imposition of sentence, if the person is represented by counsel or by an agent authorized by law. Leave shall be entered upon the docket. This subdivision does not authorize a trial in absentia and does not dispense with the waiver required by subdivision (c) or the authorization required by Rule 18.3.
Presence Not Required. A defendant need not be present at a revision or revocation of sentence pursuant to Rule 29, or at any proceeding where evidence is not to be taken. A defendant need not be present at, and shall not be admitted to, a proceeding that is ex parte by law, being an application for a search warrant under Rule 44, an application for an arrest warrant under Rule 44.1, and an expungement proceeding held under 6 R. Stat. § 131.601. A first appearance under Rule 3.1 is not an ex parte proceeding: the person arrested shall appear, as 6 R. Stat. § 131.204 requires. A defendant need not be present at the hearing of a question of law upon an agreed record where the defendant so consents upon the record.
Presence of Corporation. A corporation may appear by a duly authorized agent for the purposes of this rule.
Removal of the Disruptive Defendant. A defendant removed from the courtroom under Rule 45 by reason of disruptive conduct forfeits presence by conduct within 6 R. Stat. § 131.501(b)(2)(B). Removal under Rule 45, where the protections of that rule are afforded, requires no authorization under Rule 18.3 and is not a waiver of the right to be present, of the right to appeal, or of the right to seek post-conviction relief. The removal shall be entered upon the docket.
Production of a Defendant in Custody. Where a defendant is held in pre-trial detention under 6 R. Stat. § 131.202 or § 131.203, or is otherwise in custody, the court shall order the officer having custody to produce the defendant at each proceeding at which the defendant is entitled to be present. The absence of a defendant whom the State has failed to produce is not a voluntary absence within subdivision (b)(2)(A), is not a ground for a criminal default under Rule 18.2, and the period of any resulting delay is not excluded from the computation prescribed by Rule 19.
Presence at the Imposition of Sentence.
General Rule. Sentence shall not be imposed in the absence of the defendant except as this subdivision permits.
When Sentence May Be Imposed in Absence. Sentence may be imposed upon an absent defendant where the defendant has expressly waived presence at sentencing under subdivision (c)(5), or where the defendant was tried in absentia upon an authorization entered under Rule 18.3 and that authorization has not been withdrawn or spent.
Capital Prosecutions. No sentence of death shall be imposed upon an absent defendant. Where the defendant is convicted in absentia of an offence for which a sentence of death is permitted by 6 R. Stat. § 131.402, the court shall defer the sentencing phase until the defendant is produced, and Rule 28.3 governs. The deferral does not disturb the verdict or finding.
Deferral. The court may in any case defer sentencing until the defendant is produced, stating the reason upon the record. A deferral is not a continuance of trial and does not affect the verdict or finding.
Allocution. Where sentence is imposed in the defendant’s absence, counsel shall be afforded the opportunity to speak on the defendant’s behalf and to present information in mitigation, and the court shall state upon the record that the defendant was absent and that allocution was afforded to counsel. Rule 28(2)(d).
Notice. The clerk shall transmit notice of the sentence as Rule 18.4(h) requires.