About a year and a half ago I did a blog post here about trial in the defendant’s absence. The recent Court of Appeals case, State v. Anderson, suggests that a quick update is in order. As noted in my earlier post, the right to be present at trial is a personal right that may be waived in all cases except capital prosecutions. The waiver may be express or implied. Among the circumstances where implied waivers come into play is when the defendant voluntarily absents himself or herself from court after the trial has begun. This typically occurs when the defendant flees, shows up late to court, or leaves for some portion of the trial. To support an implied waiver in this context, the defendant’s absence must be voluntary. So, for example, if the defendant had a massive heart attack and is in the emergency room, the absence isn’t voluntary and there is no implied waiver. Also, for an implied waiver to be found, the trial must have begun. For these purposes, calling prospective jurors into the jury box as part of jury selection constitutes the beginning of the trial; the jury need not have been impanelled. State v. Richardson, 330 N.C. 174 (1991); see also State v. Russell, 188 N.C. App. 625 (2008). Once the trial has begun and the defendant fails to appear, the defense bears the burden of explaining that the absence is involuntary. Richardson, 330 N.C. 174 (burden not satisfied). This where the new case comes in. [...]
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