TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 18.3. Authorization to Proceed in the Defendant’s Absence
When Available. Upon the entry of a criminal default under Rule 18.2, the State may move, or the court upon its own initiative may proceed, for authorization to try the defendant in absentia under 6 R. Stat. § 131.501(b)(2)(A), (c), (d), and (e).
The Motion. A motion under this rule is filed and served as Rule 32 provides and shall state:
the username of the defendant and the case number;
each proceeding at which the defendant failed to appear, with the date and time of each;
the date, time, manner, and content of each presence warning given under Rule 18.1, and the docket entry evidencing it;
the efforts made to locate the defendant, stated as subdivision (d) requires;
whether the defendant is represented and by whom, and whether a criminal default and a default warrant have been entered;
Hearing Upon the Voluntariness of the Absence.
Time. The court shall hold a hearing upon the motion. Except as paragraph (2) of this subdivision provides, the hearing shall be held not earlier than twenty-four (24) hours after the notice of default was transmitted under Rule 18.2(d), and not later than forty-eight (48) hours after the motion was filed.
Where Trial Has Begun. Where the defendant absents himself after trial has begun, the hearing shall be held forthwith, and in no event later than six (6) hours after the commencement of the recess ordered under Rule 18(d).
Conduct. The hearing is held in open court in the proceeding communications of the case and is maintained upon the record. Counsel for the defendant shall be present and shall be afforded a full opportunity to be heard, to examine any witness, and to offer evidence.
Burden. The State bears the burden of establishing each matter required by subdivision (e) by a preponderance of the evidence.
Evidence. The court may receive affidavits, the certificates prescribed by subdivision (d), records of the electronic filing system and of the proceeding communications, records of the Department of Corrections, and any other evidence it finds reliable. The Ridgeway Rules of Evidence do not apply at a hearing under this subdivision, as Rid. R. Evid. 101(5)(k) provides, save that Title Five of those rules, governing privileges, applies as Rid. R. Evid. 101(6) requires.
Reasonable Efforts to Locate the Defendant. The court is entitled to rely upon evidence that reasonable efforts were made to locate the defendant, as 6 R. Stat. § 131.501(d)(2) provides. Reasonable efforts shall include, at a minimum, and the movant shall certify the result of each:
transmission of the notice of default to the defendant’s account of record under Rule 18.2(d), and a call for the defendant in the proceeding communications of the case upon the record;
an attempt by counsel of record to reach the defendant at the account of record, and a report to the court of the attempt and its result;
inquiry of the Department of Corrections whether the defendant is then in its custody, and inquiry of the sheriff whether the defendant is otherwise held;
examination of the in-game warrants system and of the register of executed warrants; and
inquiry of the State Recorder whether the defendant has renounced residency in the State, and examination of the archive maintained under 2 R. Stat. § 222.301(g).
Further Efforts. The court may require such further efforts as the circumstances warrant, and shall state upon the record the reason for requiring or dispensing with any effort.
Findings Required. The court shall not authorize a trial to proceed in the defendant’s absence unless it finds, upon the record:
that the defendant received the presence warning required by Rule 18.1 and 6 R. Stat. § 131.501(c);
that the defendant’s absence is voluntary and deliberate, reasonable efforts having been made to locate the defendant;
that, after considering all the circumstances — including the likelihood that the defendant can be produced within a reasonable time, the difficulty and prejudice of delay, the inconvenience to the court, and the public interest in prompt adjudication — the interests of justice warrant proceeding;
that the defendant is represented by counsel who is prepared to proceed, as 6 R. Stat. § 131.501(f) requires; and
that the State has not by act or omission occasioned the defendant’s absence, and that the defendant is not absent by reason of the State’s failure to produce a defendant in custody under Rule 18(i).
Entry. The findings shall be entered upon the docket in a certificate of findings, which shall recite each matter found and the evidence relied upon.
Authorization by the Chief Justice or a Designated Judge.
Requirement. A trial shall not proceed in the defendant’s absence until the Chief Justice of the Supreme Court of the State of Ridgeway, or a judge designated in writing by the Chief Justice, has authorized it upon a determination that the requirements of 6 R. Stat. § 131.501(c) and (d) are satisfied. 6 R. Stat. § 131.501(e).
Transmission. The clerk shall transmit the certificate of findings, the motion, the record of the hearing, and the docket of the case to the authorizing officer forthwith, and in no event later than two (2) hours after the certificate is entered.
Determination. The authorizing officer shall determine the application upon the record transmitted, and shall do so not later than twelve (12) hours after receipt, or not later than six (6) hours after receipt where the defendant absented himself after trial had begun. The officer may require the transmission of further parts of the record, and may direct the trial court to make a further finding, in which case the period runs anew from the receipt of the further material.
No Authorization by Lapse of Time. No authorization arises from the expiration of a period prescribed by this subdivision. Where the authorizing officer has not acted within that period, the trial court shall enter that fact upon the docket, and the clerk shall renew the transmission.
Form of the Authorization. An authorization shall be in writing, shall be entered upon the docket of the case, and shall state the matters determined, the trial or the stage of trial to which it extends, and the date and time of its entry.
Denial. A denial shall state the ground of it and is without prejudice. The State may renew the motion upon a material change of circumstances, and the court shall entertain the renewed motion.
Designation. The designation of a judge under 6 R. Stat. § 131.501(e) is made in writing by the Chief Justice and is published. No judge shall act as the authorizing officer in a case in which that judge presides at trial, except where the Chief Justice’s designation expressly so permits upon a finding that no other designated judge is available.
Commencement. Where authorization is entered, the trial shall commence not later than twenty-four (24) hours after its entry, or, where the defendant absented himself after trial had begun, shall resume forthwith and in no event later than six (6) hours after its entry. In every case the trial shall commence within the period prescribed by Rule 19.
Scope and Duration of the Authorization.
An authorization extends to the trial and to every stage of it, to the return of the verdict or finding, and to the entry of judgment. Sentencing is governed by Rule 18(j).
An authorization is spent upon the defendant’s appearance. Where the defendant appears at any time before the verdict or finding is returned, the trial ceases to be a trial in absentia, and Rule 18.4(f) governs.
The court shall reconsider an authorization upon its own initiative, and shall upon the motion of counsel for the defendant, where evidence appears that the absence was not voluntary. Upon such a finding the court shall suspend the trial and shall proceed under Rule 18(d)(5).
Capital Prosecutions. No authorization shall be entered as to the sentencing phase of a prosecution for an offence for which a sentence of death is permitted by 6 R. Stat. § 131.402. Rule 18(j)(3).