CHAPTER 25

ACCESS TO THE TRIAL

§ 25.01 The Defendant's Right To Be Present

§ 25.02 Limitations - "When Presence Would Be Useless"

§ 25.03 - Noncriminal Proceedings

§ 25.04 - Depositions

§ 25.05 - The Unruly Defendant

§ 25.06 The Right To Be Absent

§ 25.07 The Right of Third Persons

§ 25.08 - Excluding Spectators

§ 25.09 - Sequestering Witnesses

§ 25.01

The Defendant's Right To Be Present

V.R.Cr.P. 43 phrases the right to be present at trial and pretrial proceedings as a duty to be present.{1} The implicit right has strong constitutional and common law underpinnings{2} and is a corollary of other procedural protections, such as the right to confront witnesses (which normally includes face-to-face confrontation),{3} to call for evidence in one's favor, (i.e., to testify),{4} to selfrepresentation,{5} and to allocution at sentencing.{6} Although Rule 43 mandates the defendant's presence only at voir dire, trial, sentence, and any stage where a plea is entered, he has a constitutional right "to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge."{7}

When the defendant is incarcerated his presence at proceedings as an apparent prisoner can be seriously prejudicial.{8} Recognizing the problem in Estelle v. Williams,{9} the United States Supreme Court held that it violated due process to require the defendant to appear before the jury in distinctive prison clothing. Sheriffs sometimes bring defendants into the courtroom in leg irons and handcuffs; the judge has clear authority to order that visible restraints be removed.{10} A juror's seeing the defendant in restraints in the courthouse can be grounds for a mistrial.{11} Binding and gagging an unruly defendant is permissible only if justified by an essential interest.{12} The mere presence of a number of uniformed officers in the courtroom is not subjected to the same narrow scrutiny, however, at least not as a matter of federal due process.{13}

Because the defendant's right to be present includes the right to have the factfinder observe his demeanor, the state may not compel the defendant to take demeanor-altering drugs without first establishing that it is medically necessary to do so.{14}

Like other rights, the right to be present can sometimes be waived, although it cannot always be.{15} The defendant in felony cases has a nonwaivable duty to be "initially present,"{16} and a trial judge may (but need not) use physical force to compel his appearance simply to determine the voluntariness of his decision to waive presence.{17} Trial can go forward in his absence if he "voluntarily absents himself after trial has commenced," but only if he has been present at the commencement of the trial.{18}

§ 25.02

Limitations - "When Presence Would Be Useless"

The constitution does not guarantee the right to be present "when presence would be useless, or the benefit but a shadow. . . ."{19} In Kentucky v. Stincer the United States Supreme Court held that due process was not violated by excluding a defendant in a sex offense prosecution from a competency hearing involving two child complainants, because the testimony related exclusively to the witnesses' competency and "[n]o question regarding the substantive testimony that the two girls would have given during the trial was asked. . . ."{20}

§ 25.03

- Noncriminal Proceedings

Rule 43's right to be present applies only to criminal proceedings and not to quasi-criminal matters like probation revocation.{21} The extent of the right to be present in probation proceedings is an open question.{22}

§ 25.04

- Depositions

Until 1991 criminal defendants had an unrestricted right to be present at pretrial depositions, but now they are allowed to be present only by agreement or court order.{24}

§ 25.05

- The Unruly Defendant

The defendant can lose his right to be present if his disruptive behavior makes it impossible for trial to proceed in an orderly manner.{25} Binding and gagging are also constitutionally acceptable alternatives,{26} but drastic action of this sort must be required by compelling circumstances,{27} and the jury should be instructed not to consider the restraint as bearing on guilt.{28}

§ 25.06

The Right To Be Absent

The waivability of the right to be present does not establish a "right of absence" and a trial judge need not grant a defendant's request to be tried in absentia{29} because the prosecution may have a justifiable reason for insisting on the defendant's presence. In an insanity case, for example, the defendant's "deportment, demeanor and day-to-day behavior at the time of trial" are all relevant,{30} even though sanity at the time of trial is strictly relevant only to the question of competency.{31} Similarly, in eyewitness identification cases the defendant's presence is necessary if witnesses are going to be able to give in-court identifications.{32}

§ 25.07

The Right of Third Persons

In general, criminal proceedings are public and the public has a right to be present.{33} In part, the openness of the proceedings is the defendant's right;{34} but, independently of the defendant's wishes, the public and the press have a qualified right to attend.{35} However, circumstances may justify excluding the public, or particular persons, from the proceedings.

§ 25.08

- Excluding Spectators

An order excluding the public entirely will be subjected "to a microscopic scrutiny."{36} In State v. Robillard the Vermont Supreme Court disapproved an order closing the courtroom during trial (doors were allowed open only at the beginning of proceedings and during recesses); such an arrangement will be justified only in "extremely rare instances" where the necessity is clear and there are no alternatives, and only if the judge makes case-specific findings.{37}

Judges have substantially more leeway to order "partial" closure, that is, to remove particular persons. In State v. Rusin{38} the Vermont Supreme Court approved an order excluding the defendant's wife and a neighbor, on the ground that their presence would distress a child witness and affect her ability to testify. Such an order does not require the "heightened scrutiny" of a complete closure order, but it must still be supported by a "compelling need."{39} At least when the excluded persons have not conducted themselves improperly, "exclusionary orders should be a rare exception and undertaken only as a last resort."{40}

§ 25.09

- Sequestering Witnesses

By statute and rule the defendant and the prosecutor can insist that witnesses other than the defendant be excluded from the courtroom until they have testified.{41} A sequestration order serves as "a restraint on witnesses `tailoring' their testimony to that of earlier witnesses" and generally protects against improper influences.{42} A knowing violation of a sequestration order may warrant exclusion of the witness.{43}

1. "The defendant shall be present at the arraignment, at any subsequent time at which a plea is offered, at every stage of the trial including the impaneling of the jury, and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule." V.R.Cr.P. 43(a).

2. V.R.Cr.P. 43, Reporter's Notes; State v. Hohman, 138 Vt. 502, 512 (1980). See Kentucky v. Stincer, 482 U.S. 730 (1987); United States v. Gagnon, 470 U.S. 552 (1985); Rushen v. Spain, 464 U.S. 114, 117 (1983).

3. Pointer v. Texas, 380 U.S. 400, 403 (1965). For the scope of permissible restrictions on face-to-face confrontation, see Maryland v. Craig, 497 U.S. 836 (1990); Coy v. Iowa, 487 U.S. 1012 (1988); State v. Dunbar, 152 Vt. 399, 404-05 (1989); and § 29.04, infra.

4. State v. Brunelle, 148 Vt. 347, 351-52 (1987).

5. Faretta v. California, 422 U.S. 806 (1975).

6. V.R.Cr.P. 32(a)(1)(C).

7. Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-05 (1934) (internal quotes omitted)).

8. Simply having been imprisoned can imply dangerousness and stigma. See State v. Shuttle, 126 Vt. 379 (1967); State v. Garceau, 122 Vt. 303, 306 (1961).

9. 425 U.S. 501 (1976).

10. See In re B.F., 157 Vt. 67, 71 (1991).

11. Compare State v. Griffin, 152 Vt. 41, 45 (1989) (arrest, frisking, and handcuffing of defendant's son might infringe right to fair trial, but no evidence that any juror saw it).

12. Holbrook v. Flynn, 475 U.S. 560, 568 (1986). See § 25.05, infra.

13. Holbrook v. Flynn, 475 U.S. 560 (1986) (presence of four uniformed officers in spectator's section was not inherently prejudicial). The court acknowledged the risks posed by a large police presence at trial. Id. at 570-71 (citing ABA Standards for Criminal Justice § 15-3.1(c)).

14. See Riggins v. Nevada, 112 S. Ct. 1810, 1814-16 (1992), and id., at 1818-20 (Kennedy, J., concurring).

15. State v. Hohman, 138 Vt. 502, 512 (1980).

16. V.R.Cr.P. 43(b)(1); Crosby v. United States, 61 L.W. 4078 (1993). In misdemeanors the right can be waived in writing. V.R.Cr.P. 43(c)(2).

17. State v. Kasper, 152 Vt. 435, 440 (1989).

18. V.R.Cr.P. 43(b)(1); Crosby v. United States, 61 L.W. 4078 (1993) (decision under F.R.Cr.P. 43).

19. Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 106-07 (1934) (internal quotes omitted)).

20. Kentuckey v. Stincer, 482 U.S. 730, 745-46 (1987).

21. State v. Kasper, 152 Vt. 435, 439-440 (1989).

22. Compare State v. Germaine, 152 Vt. 106 (1989) (revoking probation by written order in absentia not a Rule 43 violation) with Bartone v. United States, 375 U.S. 21 (1963) (amendment of probation revocation sentence in defendant's absence violated F.R.Cr.P. 43).

23. [Reserved.]

24. V.R.Cr.P. 15(d). See § 24.25, infra.

25. Illinois v. Allen, 397 U.S. 337 (1970). The defendant who is removed from the courtroom has a right to meet periodically with his lawyer, and must be given periodic opportunities to behave properly. V.R.Cr.P. 43(b)(2).

26. Illinois v. Allen, 397 U.S. 337, 344 (1970).

27. See Holbrook v. Flynn, 475 U.S. 560, 568-69 (1986).

28. State v. Ahearn, 137 Vt. 253, 270 (1979).

29. State v. Hohman, 138 Vt. 502, 512-13 (1980); State v. Hohman, 136 Vt. 341, 353 (1978).

30. State v. Hohman, 136 Vt. 341, 352 (1978); In re Pray, 133 Vt. 253, 257 (1975).

31. Cf. Riggins v. Nevada, 112 S. Ct. 1810, 1814-16 (1992) (defendant may not be compelled to take demeanor-altering drugs without showing of medical necessity).

32. For a discussion of the suggestiveness of trial identifications, see § 4.09, supra.

33. Special rules governing access by the media are discussed in chapter 22, supra.

34. The sixth amendment and chapter I, article 10 both give defendants the right to a public trial. The right is "personal" to the defendant. Gannett v. DePasquale, 443 U.S. 368, 379-87 (1979); Herald Association v. Ellison, 138 Vt. 529, 531 (1980).

35. State v. Rusin, 153 Vt. 36, 39 (1989); State v. Robillard, 146 Vt. 623, 629-30 (1986). For cases dealing specifically with the media's right of access, see § 22.02, supra.

36. State v. Robillard, 146 Vt. 623, 630 (1986).

37. State v. Robillard, 146 Vt. 623, 630 (1986). The court declined to reverse the defendant's conviction because she showed no prejudice.

38. 153 Vt. 36 (1989).

39. State v. Rusin, 153 Vt. 36, 39-40 (1989).

40. State v. Rusin, 153 Vt. 36, 41 (1989).

41. "[T]he court shall have the witnesses examined separately and apart from each other." 13 V.S.A. § 6606. V.R.E. 615 also provides for exclusion of witnesses other than a party or a person whose presence is essential.

42. State v. Blakeney, 137 Vt. 495, 506 (1979) (quoting Geders v. United States, 425 U.S. 80, 87 (1976)).

43. State v. Gulley, 155 Vt. 65, 68 (1990).