TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 18.4. Conduct of a Trial in Absentia
Counsel Required. A defendant tried in absentia shall be represented at every stage by counsel, retained or appointed, as 6 R. Stat. § 131.501(f) requires. Where the defendant is not represented, the court shall appoint counsel under Rule 8 before the hearing prescribed by Rule 18.3(c), and shall allow counsel such time to prepare as the interests of justice require, the period being excluded from the computation prescribed by Rule 19 as Rule 19(4)(j) provides.
Self-Representation Terminated. A defendant may not conduct the defense in person while absent. Upon the entry of an authorization under Rule 18.3, the defendant’s self-representation is terminated for the period of the absence, standby counsel appointed under Rule 8.1(6) shall assume the defense and shall file a Notice of Appearance forthwith, and, where no standby counsel has been appointed, the court shall appoint counsel under Rule 8. The termination is not a revocation of the waiver of counsel, and the defendant may resume self-representation upon appearing.
Authority and Participation of Counsel. The defendant’s absence shall not diminish counsel’s authority to act on the defendant’s behalf. Counsel shall be afforded a full opportunity to participate, including the making of opening statement and closing argument, the cross-examination of every witness, the presentation of a defense, the making of objections and requests for rulings, and the making of a motion under Rule 25.
No Adverse Inference. The defendant’s absence is not evidence of guilt. No party shall comment upon the absence as evidence of guilt, and in a trial by jury the court shall instruct the jury that the defendant’s absence is not to be considered in assessing the proof or in determining guilt. The court shall give the instruction upon the request of counsel for the defendant and may give it upon its own initiative.
The Record. The court shall cause a complete record of the trial to be maintained. Upon the defendant’s appearance the clerk shall make the record available to the defendant and to counsel without cost and without motion.
Appearance of the Defendant During Trial.
Where the defendant appears at any time before the verdict or finding is returned, the trial shall proceed with the defendant present, and the court shall inform the defendant upon the record of the proceedings held in the defendant’s absence.
The court shall afford the defendant a reasonable opportunity to consult with counsel before the trial resumes.
Upon the motion of the defendant the court shall permit the recall of any witness for further cross-examination, and may permit the reopening of the evidence under Rule 24(2)(d), where the interests of justice require. A proceeding already completed shall not otherwise be repeated.
The court shall enter the defendant’s appearance upon the docket, shall vacate the criminal default and recall the default warrant as Rule 18.2(e) requires, and shall enter that the authorization is spent.
Continuity. A trial in absentia shall proceed continuously and shall not be continued except for cause stated upon the record. The court shall state upon the record, at the conclusion of each session, the date and time at which the trial will resume.
Judgment; Notice.
The clerk shall, forthwith upon the entry of the judgment and of any sentence, transmit notice of it to the defendant’s account of record and to counsel of record, and shall enter the fact and time of the transmission upon the docket. The notice shall state the verdict or finding upon each count, the sentence imposed, the right to appeal, and the right to move to vacate under Rule 18.5, together with the period within which that motion must be made.
Where the defendant is taken into custody upon a judgment entered in absentia, the court shall proceed under Rule 18.5(c).
Execution. Where the sentence includes imprisonment and the defendant is not then in custody, the court shall direct the issuance of a warrant for the defendant’s arrest and delivery as Rule 28(7)(c) provides. A sentence of imprisonment imposed in absentia runs from the delivery of the defendant into the custody of the Department of Corrections.