Must Defendant Be Present in Court If There Is a Trial?
Our office is often asked this question and we usually answer “yes” because, quite frankly, we need the client present to help us with cross-examination of witnesses and we value the client’s suggestions during trial. The client may remember something crucial about the case that was never brought out in the police report and only becomes relevant in trial.Summary in 50 Words or Less: Waiving defendant’s appearance at trial must be by stipulation and the prosecutor, unless he or she is inexperienced, may refuse. However, one should try, especially if the identity of defendant is an issue or defendant’s appearance suggests membership in a gang, being a drug addict, etc.
A prosecutor would be exceptionally careless to stipulate to excuse a client’s appearance in trial when identity is an issue, but defense counsel should gently explore this issue, with discretion. If such a stipulation can be reached and the prosecution cannot prove their case, the prosecutor will never do so again.
California case law allows a party to stipulate or admit to certain facts to remove them from dispute, thus making any evidence concerning them inadmissible because they are irrelevant. For example, in People v. Bonin (1989) 47 Cal. 3d 808, 848, the court held it was error to reject such a stipulation.
When the defense attorney offers such a stipulation, the prosecutor cannot refuse to accept the stipulation in bad faith. If he or she is going to refuse to stipulate to excuse the defendant’s presence, he or she must have a legitimate tactical reason which is not satisfied by the stipulation. People v. Hall (1980) 28 Cal. 3d 143; People v. Valentine (1986) 42 Cal. 3d 170; Old Chief v. United States (1997) 519 U.S. 172; United States v. Hernandez (9th Cir. 1997) 109 F. 3d 1450.
What might this be? This is hard to say, as the facts in each case vary. However, if self-defense is a defense and defendant is a hulking, six foot, seven inch woman, 340 pound professional football player, but the victim is a petite, four foot, eleven inch, the prosecution may refuse to excuse defendant’s presence, as it would be important to have defendant present to refute the reasonableness of such a self-defense claim.
Likely, if the client appears like a heavy drug user, and police were conducting an undercover sales operation, the prosecution may want defendant present in court to help show the reasonableness of the undercover cop’s suspicions, perhaps to refute a defense claim that officers had no grounds to detain defendant after she acted suspiciously in response to police questions.
Consequently, we believe excusing the defendant from trial is an underused tactic that can have merit if used properly.
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