In absentia
Encyclopedia
In absentia is Latin
for "in the absence". In legal use, it usually means a trial at which the defendant is not physically present. The phrase is not ordinarily a mere observation, but suggests recognition of violation to a defendant's right to be present in court proceedings in a criminal trial.
In common law
legal systems, conviction of a person in absentia, that is in a trial in which he/she is not present to answer the charges, is held to be a violation of natural justice. Specifically, it violates the second principle of natural justice, audi alteram partem
. By contrast, in some civil law legal systems
, such as Italy, trial in absentia is permitted. Such trials may require the presence of the defendant's lawyer depending on the country.
, is protected under the Fifth
, Sixth
, and Fourteenth Amendments
.
In 1884, the United States Supreme Court held that
A similar holding was announced by the Arizona Supreme Court
in 2004 (based on Arizona Rules of Criminal Procedure):
Although United States Congress
codified this right by approving Rule 43 of the Federal Rules of Criminal Procedure in 1946 and amended the Rule in 1973, the right is not absolute.
Rule 43 provides that a defendant shall be present
However, the following exceptions are included in the Rule:
Indeed, several U.S. Supreme Court decisions have recognized that a defendant may forfeit the right to be present at trial through disruptive behavior
, or through his or her voluntary absence after trial has begun.
In 1993, the Supreme Court revisited Rule 43 in the case of Crosby v. United States. The Court unanimously held, in an opinion written by Justice Harry Blackmun
, that Rule 43 does not permit the trial in absentia of a defendant who is absent at the beginning of trial.
However, the Crosby Court reiterated an 80-year-old precedent that
Some state laws provide for automatic retrial of fugitives who are arrested after being convicted in absentia.
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "in the absence". In legal use, it usually means a trial at which the defendant is not physically present. The phrase is not ordinarily a mere observation, but suggests recognition of violation to a defendant's right to be present in court proceedings in a criminal trial.
In common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
legal systems, conviction of a person in absentia, that is in a trial in which he/she is not present to answer the charges, is held to be a violation of natural justice. Specifically, it violates the second principle of natural justice, audi alteram partem
Audi alteram partem
Audi alteram partem is a Latin phrase that literally means "hear the other side" or "hear the alternative party"...
. By contrast, in some civil law legal systems
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
, such as Italy, trial in absentia is permitted. Such trials may require the presence of the defendant's lawyer depending on the country.
Under United States law
For more than 100 years, courts in the United States have held that, according to the United States Constitution, a criminal defendant's right to appear in person at their trial, as a matter of due processDue process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
, is protected under the Fifth
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
, Sixth
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
, and Fourteenth Amendments
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
.
In 1884, the United States Supreme Court held that
- the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution. Hopt v. Utah 110 US 574, 28 L Ed 262, 4 S Ct 202 (1884).
A similar holding was announced by the Arizona Supreme Court
Arizona Supreme Court
The Arizona Supreme Court is the state supreme court of the U.S. state of Arizona. It consists of a Chief Justice, a Vice Chief Justice, and three associate justices. Each justice is appointed by the governor of Arizona from a list recommended by a bipartisan commission. Justices stand for...
in 2004 (based on Arizona Rules of Criminal Procedure):
- A voluntary waiver of the right to be present requires true freedom of choice. A trial court may infer that a defendant's absence from trial is voluntary and constitutes a waiver if a defendant had personal knowledge of the time of the proceeding, the right to be present, and had received a warning that the proceeding would take place in their absence if they failed to appear. The courts indulge every reasonable presumption against the waiver of fundamental constitutional rights. State v. Whitley, 85 P.3d 116 (2004)
Although United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
codified this right by approving Rule 43 of the Federal Rules of Criminal Procedure in 1946 and amended the Rule in 1973, the right is not absolute.
Rule 43 provides that a defendant shall be present
- at the arraignment,
- at the time of the plea,
- at every stage of the trial including the impaneling of the jury and the return of the verdict and
- at the imposition of sentence.
However, the following exceptions are included in the Rule:
- the defendant waives his right to be present if he voluntarily leaves the trial after it has commenced,
- if he persists in disruptive conduct after being warned that such conduct will cause him to be removed from the courtroom,
- a corporation need not be present, but may be represented by counsel,
- in prosecutions for misdemeanors, the court may permit arraignment, plea, trial, and imposition of sentence in the defendant's absence with his written consent, and
- the defendant need not be present at a conference or argument upon a question of law or at a reduction of sentence under Rule 35 of the Federal Rules of Criminal Procedure.
Indeed, several U.S. Supreme Court decisions have recognized that a defendant may forfeit the right to be present at trial through disruptive behavior
Commonwealth of Pennsylvania v. Mumia Abu-Jamal
Commonwealth of Pennsylvania v. Mumia Abu-Jamal was a 1982 murder trial in which Mumia Abu-Jamal was tried and convicted for the first-degree murder of police officer Daniel Faulkner....
, or through his or her voluntary absence after trial has begun.
In 1993, the Supreme Court revisited Rule 43 in the case of Crosby v. United States. The Court unanimously held, in an opinion written by Justice Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
, that Rule 43 does not permit the trial in absentia of a defendant who is absent at the beginning of trial.
- This case requires us to decide whether Federal Rule of Criminal Procedure 43 permits the trial in absentia of a defendant who absconds prior to trial and is absent at its beginning. We hold that it does not. ...The Rule declares explicitly: "The defendant shall be present . . . at every stage of the trial . . . except as otherwise provided by this rule" (emphasis added). The list of situations in which the trial may proceed without the defendant is marked as exclusive not by the "expression of one" circumstance, but rather by the express use of a limiting phrase. In that respect the language and structure of the Rule could not be more clear."
However, the Crosby Court reiterated an 80-year-old precedent that
- Where the offense is not capital and the accused is not in custody, . . . if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present. Diaz v. United States, 223 U.S. at 455 [1912] (emphasis added).
Some state laws provide for automatic retrial of fugitives who are arrested after being convicted in absentia.
Examples
Examples of people convicted in absentia are:- Cesare BattistiCesare Battisti (activist)Cesare Battisti is a former member of the Armed Proletarians for Communism, a far-left militant group which committed acts of terrorism in Italy during the period known as "anni di piombo"...
, thriller author and former member of the Italian militant group Armed Proletarians for CommunismArmed Proletarians for CommunismArmed Proletarians for Communism was an Italian far-left armed group founded in 1976 and disbanded three years later, during the "Years of Lead ."- History :...
, sentenced to life. (Arrested on March 18, 2007 in BrazilBrazilBrazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
.) - Krim BelkacemKrim BelkacemKrim Belkacem was an Algerian revolutionary fighter and politician....
, AlgeriaAlgeriaAlgeria , officially the People's Democratic Republic of Algeria , also formally referred to as the Democratic and Popular Republic of Algeria, is a country in the Maghreb region of Northwest Africa with Algiers as its capital.In terms of land area, it is the largest country in Africa and the Arab...
n BerberBerber peopleBerbers are the indigenous peoples of North Africa west of the Nile Valley. They are continuously distributed from the Atlantic to the Siwa oasis, in Egypt, and from the Mediterranean to the Niger River. Historically they spoke the Berber language or varieties of it, which together form a branch...
resistance fighter and politician. (Assassinated on October 18, 1970 in West Germany.) - Heinrich BoereHeinrich BoereHeinrich Boere is a convicted German-Dutch war criminal and former member of the Waffen-SS.-Early life:Boere was born in Eschweiler, Germany, to a Dutch father and a German mother, but his parents moved to Maastricht when he was two years old. He volunteered for the Waffen-SS in September 1940,...
, a Dutch or German convicted by a Dutch court in 1949 of murders on the part of the World War II German occupation authorities in the Netherlands. German courts refused to extradite Boere to the Netherlands due to his possibly having German citizenship. - Martin BormannMartin BormannMartin Ludwig Bormann was a prominent Nazi official. He became head of the Party Chancellery and private secretary to Adolf Hitler...
, Nazi official and Hitler's private secretary, sentenced to death at the Nuremberg war crimes trials. (Disappeared on May 2, 1945. Remains were uncovered in late 1972 in West BerlinWest BerlinWest Berlin was a political exclave that existed between 1949 and 1990. It comprised the western regions of Berlin, which were bordered by East Berlin and parts of East Germany. West Berlin consisted of the American, British, and French occupation sectors, which had been established in 1945...
.) - Dési BouterseDési BouterseDesiré Delano "Dési" Bouterse is the 9th and current President of Suriname.As an army officer, he was the de facto leader of Suriname through most of the 1980s, serving as Chairman of the National Military Council...
, Suriname's former military leader, sentenced to 16 years in prison and fined $2.18 million in the Netherlands for cocaine trafficking. - Ahmed ChalabiAhmed ChalabiAhmed Abdel Hadi Chalabi is an Iraqi politician. He was interim oil minister in Iraq in April-May 2005 and December-January 2006 and deputy prime minister from May 2005 until May 2006. Chalabi failed to win a seat in parliament in the December 2005 elections, and when the new Iraqi cabinet was...
, former Iraqi oil minister, convicted in Jordan for bank fraud. - Ira EinhornIra EinhornIra Samuel Einhorn, known as "the Unicorn Killer" , is a convicted murderer who savagely beat his ex-girlfriend, Holly Maddux, to death and then stored her body in a locker in his apartment for more than a year before it was discovered by the police...
, anti-warAnti-warAn anti-war movement is a social movement, usually in opposition to a particular nation's decision to start or carry on an armed conflict, unconditional of a maybe-existing just cause. The term can also refer to pacifism, which is the opposition to all use of military force during conflicts. Many...
activist and murderer, who challenged his conviction in PennsylvaniaPennsylvaniaThe Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
. (Escaped to Europe, but was extradited from France back to the US on July 20, 2001.) - John FactorJohn FactorJohn Factor , born Iakov Faktorowicz and popularly known by the nickname "Jake the Barber", was a Prohibition-era gangster and con artist affiliated with the Chicago Outfit who later became a prominent businessman and Las Vegas casino proprietor...
, a British-born American gangsterGangsterA gangster is a criminal who is a member of a gang. Some gangs are considered to be part of organized crime. Gangsters are also called mobsters, a term derived from mob and the suffix -ster....
and con manConfidence trickA confidence trick is an attempt to defraud a person or group by gaining their confidence. A confidence artist is an individual working alone or in concert with others who exploits characteristics of the human psyche such as dishonesty and honesty, vanity, compassion, credulity, irresponsibility,...
, charged with securities fraudSecurities fraudSecurities fraud, also known as stock fraud and investment fraud, is a practice that induces investors to make purchase or sale decisions on the basis of false information, frequently resulting in losses, in violation of the securities laws....
in England and tried and sentenced to 24 years in prison in absentia after fleeing back to the United States. - Charles de GaulleCharles de GaulleCharles André Joseph Marie de Gaulle was a French general and statesman who led the Free French Forces during World War II. He later founded the French Fifth Republic in 1958 and served as its first President from 1959 to 1969....
, sentenced first to four years in prison and later to death in 1940 for treason against the Vichy Regime. - Boļeslavs MaikovskisBoļeslavs MaikovskisBoļeslavs Maikovskis was a Latvian Nazi collaborator who served as chief of police for the second precinct of Rēzekne while the Germans occupied Latvia in World War II.After the war Maikovskis went to Austria....
, Latvian Nazi collaborator sentenced to death by a Soviet court in 1965 (while living in the United States). - Mengistu Haile MariamMengistu Haile MariamMengistu Haile Mariam is a politician who was formerly the most prominent officer of the Derg, the Communist military junta that governed Ethiopia from 1974 to 1987, and the President of the People's Democratic Republic of Ethiopia from 1987 to 1991...
, former dictatorDictatorA dictator is a ruler who assumes sole and absolute power but without hereditary ascension such as an absolute monarch. When other states call the head of state of a particular state a dictator, that state is called a dictatorship...
sentenced to death in EthiopiaEthiopiaEthiopia , officially known as the Federal Democratic Republic of Ethiopia, is a country located in the Horn of Africa. It is the second-most populous nation in Africa, with over 82 million inhabitants, and the tenth-largest by area, occupying 1,100,000 km2...
for genocide. - Jamal Jafaar Mohammed, sentenced to death by a Kuwaiti court for the 1983 Kuwait bombings1983 Kuwait bombingsThe 1983 Kuwait bombings were attacks on six key foreign and Kuwaiti installations on December 12, 1983, two months after the 1983 Beirut barracks bombing. The 90-minute coordinated attack on two embassies, the country's main airport and petro-chemical plant, was more notable for the damage it was...
. He is currently serving in Iraq's parliament as a member of Prime Minister Nouri al-MalikiNouri al-MalikiNouri Kamil Mohammed Hasan al-Maliki , also known as Jawad al-Maliki or Abu Esraa, is the Prime Minister of Iraq and the secretary-general of the Islamic Dawa Party. Al-Maliki and his government succeeded the Iraqi Transitional Government. He is currently in his second term as Prime Minister...
's Islamic Dawa PartyIslamic Dawa PartyThe Islamic Dawa Party or Islamic Call Party is a political party in Iraq. Dawa and the Supreme Islamic Iraqi Council are two of the main parties in the religious-Shiite United Iraqi Alliance, which won a plurality of seats in both the provisional January 2005 Iraqi election and the longer-term...
. - Abu Musab al-ZarqawiAbu Musab al-ZarqawiAbu Musab al-Zarqawi ; October 30, 1966 – June 7, 2006), born Ahmad Fadeel al-Nazal al-Khalayleh was a Jordanian militant Islamist who ran a paramilitary training camp in Afghanistan...
, sentenced to death in JordanJordanJordan , officially the Hashemite Kingdom of Jordan , Al-Mamlaka al-Urduniyya al-Hashemiyya) is a kingdom on the East Bank of the River Jordan. The country borders Saudi Arabia to the east and south-east, Iraq to the north-east, Syria to the north and the West Bank and Israel to the west, sharing...
. (Killed on June 7, 2006 in IraqIraqIraq ; officially the Republic of Iraq is a country in Western Asia spanning most of the northwestern end of the Zagros mountain range, the eastern part of the Syrian Desert and the northern part of the Arabian Desert....
.) - Andrew LusterAndrew LusterAndrew Stuart Luster is the great-grandson of cosmetics giant Max Factor, Sr. and an heir to the Max Factor cosmetics fortune. He grew up in Malibu, California and attended Windward School in Santa Monica. Luster had been supported by a $3.1 million trust fund as he traveled and surfed at various...
, convicted of rape after fleeing mid-trial. - Filiberto Ojeda RíosFiliberto Ojeda RíosFiliberto Ojeda Ríos was the commander-in-chief of the Boricua Popular Army , a clandestine paramilitary organization that considers United States rule over Puerto Rico to be oppressive colonization and advocates the latter's independence.Ojeda Ríos was a...
, convicted in the US after fleeing. - Zine El Abidine Ben AliZine El Abidine Ben AliZine El Abidine Ben Ali is a Tunisian political figure who was the second President of Tunisia from 1987 to 2011. Ben Ali was appointed Prime Minister in October 1987, and he assumed the Presidency on 7 November 1987 in a bloodless coup d'état that ousted President Habib Bourguiba, who was...
, former president of TunisiaTunisiaTunisia , officially the Tunisian RepublicThe long name of Tunisia in other languages used in the country is: , is the northernmost country in Africa. It is a Maghreb country and is bordered by Algeria to the west, Libya to the southeast, and the Mediterranean Sea to the north and east. Its area...
, sentenced to 35 years in prison along with his wife, Leïla Ben AliLeïla Ben AliLeïla Ben Ali , is the wife of Zine El Abidine Ben Ali, the former president of the Tunisian Republic. She is the current president of the Arab Women Organization and chair of the Basma Association, a charitable organization working to secure employment for the disabled. In July 2010, Mrs. Ben Ali...
. - Bernardo ProvenzanoBernardo ProvenzanoBernardo Provenzano is a member of the Sicilian Mafia and is suspected of having been the head of the Corleonesi, a Mafia faction that originated in the village of Corleone, and de facto capo di tutti capi of the entire Sicilian Mafia until his arrest in 2006.His nickname is Binnu u tratturi...
, Sicilian MafiaMafiaThe Mafia is a criminal syndicate that emerged in the mid-nineteenth century in Sicily, Italy. It is a loose association of criminal groups that share a common organizational structure and code of conduct, and whose common enterprise is protection racketeering...
boss convicted of numerous murders during his 42 years as a fugitive. - Michael TownleyMichael TownleyMichael Vernon Townley is a US citizen currently living in the United States under terms of the federal witness protection program. A Central Intelligence Agency agent and operative of the Chilean secret police, DINA, Townley confessed, was convicted, and served 62 months in prison in the United...
, ChileChileChile ,officially the Republic of Chile , is a country in South America occupying a long, narrow coastal strip between the Andes mountains to the east and the Pacific Ocean to the west. It borders Peru to the north, Bolivia to the northeast, Argentina to the east, and the Drake Passage in the far...
an DINA agent, has been convicted in 1993 by an Italian court in carrying out the 1975 Rome murder attempt on Bernardo LeightonBernardo LeightonBernardo Leighton Guzmán was a Chilean Christian Democrat who was targeted by Operation Condor.In 1937, President Arturo Alessandri Palma appointed him as Employment minister....
. (Currently living under the United States Federal Witness Protection ProgramUnited States Federal Witness Protection ProgramThe United States Federal Witness Protection Program is a witness protection program administered by the United States Department of Justice and operated by the United States Marshals Service that is designed to protect threatened witnesses before, during, and after a trial.A few states, including...
.) - Shalom WeissShalom WeissSholam Weiss , is a former American businessman and convicted felon. In 2000 he was convicted of multiple fraud and money laundering counts and sentenced to 845 years in prison for looting the National Heritage Life Insurance. It was believed to be the largest insurance failure in history at the...
, sentenced to the longest federal prison term in United States history for fraud, money laundering and other crimes. (Extradited by Austria on June 20, 2002.) - Irakli OkruashviliIrakli OkruashviliIrakli Okruashvili is a Georgian politician who had served on various important posts in the Government of Georgia under President Mikheil Saakashvili, including being the Minister of Defense from December 2004 until being dismissed in November 2006.In September 2007, Okruashvili staged a...
, Defense Minister of GeorgiaGeorgia (country)Georgia is a sovereign state in the Caucasus region of Eurasia. Located at the crossroads of Western Asia and Eastern Europe, it is bounded to the west by the Black Sea, to the north by Russia, to the southwest by Turkey, to the south by Armenia, and to the southeast by Azerbaijan. The capital of...
from 2004 to 2006 and a personal friend of Georgian president Mikheil SaakashviliMikheil SaakashviliMikheil Saakashvili is a Georgian politician, the third and current President of Georgia and leader of the United National Movement Party.Involved in the national politics since 1995, Saakashvili became president on 25 January 2004 after President Eduard Shevardnadze resigned in a November 2003...
. Okruashvili returned to prominence when he formed an opposition party to the Georgian government and accused it of corruption and plotting assassinations. He was arrested days later on charges of extortion, bribe taking, and abuse of power, and released on $6 million bail pending trial. He flew to Europe, supposedly to seek medical treatment, but tried to find political asylum. He was denied asylum in Germany, but received it in France, which refused an extradition request from Georgia. He was tried in absentia, found guilty, and sentenced to 11 years imprisonment. - Alexander Poteyev, ex-colonel of the RussiaRussiaRussia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...
n intelligence agency SVRForeign Intelligence Service (Russia)The Russian Foreign Intelligence Service is Russia's primary external intelligence agency. The SVR is the successor of the First Chief Directorate of the KGB since December 1991...
, was sentenced in absentia to 25 years of imprisonment on the charge of high treason by Moscow court in 2011. His whereabouts are unknown, presumably he lives in the United States under protection of the US government.
See also
- List of Latin phrases
- Right to a fair trialRight to a fair trialThe right to fair trial is an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict voided....
- Death in absentiaDeath in absentiaDeath in absentia is a legal declaration that a person is deceased in the absence of remains attributable to that person...
- Default judgmentDefault judgmentDefault judgment is a binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law...
(a civil counterpart)