About the Office
Mission, Vision, and Values
Death Penalty Department
Clemency and Schedule
Mitigation & Investigation
Wrongful Conviction Project
Policy & Outreach
Policy & Outreach
Forensic Training Unit
OPD Training Materials
Welcome To The Library
Criminal Law Casebook
Pro Se Resources
Immigration Reference Guide
Standards & Guidelines
Attorney Billing Program
Contact the Office
Contact our Staff
Criminal Law Casebook
Defendant, Presence of
Defendant, Presence of
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
Criminal Rule 10(B) -- Arraignment in absentia.
Criminal Rule 43 -- Presence of the defendant.
-- When accused may be tried in his absence.
Presence During Hearings
State v. Marzett
, 191 Ohio App. 3d 181,
– 58-year old former boxer showed no brain function following fight with defendant and died in hospice weeks later. Defendant claimed self defense. Count one, charging attempted murder was tied to a jury, which returned a not guilty verdict. Counts two and three charging murder and felonious assault were tried to the bench. With the consent of both parties, the judge spoke with jurors following their verdict and before returning his. Reversed. ¶42: “We hold that the trial court’s conversations with the jury outside the presence of the defense and while still deliberating its verdict on pending charges is an unsupportable irregularity in the proceedings that merits reversal.”
State v. Murray
, 156 Ohio App. 3d 219,
-- Defendant did not return after the jury had been sworn. No error in proceeding with the trial.
State v. Sales
, Franklin App. No. 02AP-175,
-- Reversal based on court's response to jury questions in the absence of the defendant or counsel. Absence adequately demonstrated by transcript not referring to presence of the defendant or counsel, and lack of discussion or proffer reflecting input from the parties. Court's response to questions was either incomplete or erroneous. Also see
State v. Wade
, Franklin App. No. 03AP-774,
State v. Campbell
(2000), 90 Ohio St. 3d 320, 346 -- Court finds no error in court responding by note to a jury question, without defendant's presence in the courtroom during discussion of the legal issue, which included counsel. Said that oral response to questions is a critical phase, but response by note is not.
State v. Hall
(2001), 141 Ohio App. 3d 561 -- No error in denying motion that defendant found incompetent to stand trial not be required to attend any future hearings.
State v. Cassano
, 96 Ohio St. 3d 94,
, ¶67-70 -- While the trial court erred in refusing to allow the defendant to attend the jury view, court refuses to reverse, finding no due process violation.
State v. Bruce
, 172 Ohio App. 3d 521,
-- State filed a motion to vacate judgments of conviction, apparently believing an imposter had appeared in court in place of the defendant. Error to grant motion without notice to the defendant and without hearing evidence.
State v. Walker
(1959), 108 Ohio App. 333 -- Unless the defendant has requested in writing (in accordance with
), that he be tried in absentia, it is error to proceed to trial without the defendant being present, regardless of whether or not he has been notified of the trial date and despite the fact he was present at the time the jury returned a verdict.
State v. Kirkland
(1984), 18 Ohio App. 3d 1 -- When the defendant is detained by the authorities, his absence from an ongoing trial is not voluntary. His right to be present cannot be waived by counsel, and the opinion suggests counsel is professionally remiss if he fails to attempt to locate the defendant or otherwise determine the cause of his absence.
Illinois v. Allen
(1970), 397 U.S. 337, 343-344 -- "...(A) defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings...We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly."
State v. Meade
(1997), 80 Ohio St. 3d 419 -- Not happy when plea negotiations on the morning of trial indicated he would have to serve time, the defendant left the courthouse. Jury selection had not started, but the judge proceeded to try the defendant in absentia. Reversed. Syllabus: "A jury trial commences after the jury is impanelled and sworn in the presence of the defendant. [Crim. R. 43(A), construed and applied.]
Mentor v. Caswell
(1997), 123 Ohio App. 3d 256 -- Defendant was absent for unexplained reasons at time of suppression hearing, which proceeded with participation of counsel and a codefendant. Defendant had a right to be present. Denial of continuance was an abuse of discretion.
State v. Taylor
(1997), 78 Ohio St. 15, 25 -- Defendant's absence, with the consent of counsel, from an in-chambers hearing on preliminary excusal of jurors "did not thwart a fair and just hearing" and was therefore nonprejudicial.
State v. Phillips
(1972), 34 Ohio App. 2d 217 -- No error in continuing with the trial of rape case where the defendant did not return to the courtroom after the state had rested. Case was being tried to the bench and a ten day continuance was allowed before the case was concluded.
State v. Carr
(1995), 104 Ohio App. 3d 699 -- Defendant missed final phases of trial. Counsel did not waive his presence, but obtained an appropriate cautionary instruction. At p. 703: "If counsel has no explanation for the defendant's absence, the trial court may nevertheless find the absence to be voluntary because the presumption that the defendant knows of his obligation to attend has gone unrebutted. If an explanation is offered, the court must weigh that evidence to determine whether the absence is voluntary. If the court finds that it is, the trial may proceed without the defendant. If the court finds the absence involuntary, the trial must be recessed until the defendant is able to appear or, in the court's discretion, a mistrial may be declared."
Proffitt v. Wainwright
(11th Cir. 1982), 685 F. 2d 1227, 1250-1260 -- The Confrontation Clause requires defendant's presence at all stages of a death penalty trial, including hearing on additional psychiatric reports ordered after jury had returned its examination. Presence cannot be waived. Further denial of confrontation not to permit defense counsel to cross examine doctor who had prepared one of the reports, but did not appear for hearing.
State v. Howard
(1978), 57 Ohio App. 2d 1 -- Defendant has the right to be present at an in camera hearing to determine the admissibility of evidence as to other wrongful acts.
State v. Williams
(1983), 6 Ohio St. 3d 281 -- Paragraph two of the syllabus: "The failure of the trial court to ensure a criminal defendant's presence at an in camera voir dire proceedings to determine a juror's fairness and impartiality is error." Compare
United States v. Gagnon
(1985), 470 U.S. 522 -- Presence is waived if the defendant fails to object when made aware an inquiry would take place, and counsel attends inquiry conducted in chambers.
Kentucky v. Stincer
(1987), 482 U.S. 730 -- No denial of confrontation when defendant was excluded from hearing to determine competency of child witness. (Under Crim. R. 43, defendant still appears to have the right to be present.)
State v. Woods
(1982), 8 Ohio App. 3d 56, 61-62 -- No denial of defendant's right to be present at every stage of proceedings where defendant did not participate in an in camera inspection of witness statements pursuant to Criminal Rule 16(B)(1)(g) where: (1) counsel did participate, and (2) no demand was made that the defendant personally participate.
State v. Grisafulli
(1939), 135 Ohio St. 87 -- The defendant must be present when during deliberations the jury has a question and returns to the courtroom for further instructions. However, in some instances, a trial court's communication with the jury during deliberations may be harmless error. See
State v. Abrams
(1974), 39 Ohio St. 2d 53;
State v. Blackwell
(1984), 16 Ohio App. 3d 100.
State v. Chill
(1999), 85 Ohio St. 3d 548, 568 -- The record must affirmatively indicate the absence of the defendant during a particular stage of the trial.
State v. Motley
(1985), 21 Ohio App. 3d 240 -- It is error for the judge to send the court reporter to the jury room to reread portions of the instructions, out of the presence of either the prosecutor or defense counsel.
Adams v. Epperly
(1985), 27 Ohio App. 3d 51 -- A person cited for indirect criminal contempt for violation of domestic relations court order may not be tried and sentenced in absentia.
Portuondo v. Agard
(2000), 529 U.S. 61, 120 S.Ct. 1119 -- Prosecutor's comment in argument that the defendant had had the opportunity to hear all the other witnesses testify and tailor his testimony accordingly held not to have violated his Fifth and Sixth Amendment right to be present at trial and to confrontation, nor did it deny his Fourteenth Amendment right to due process.
State v. Akers
, Ashland App. No. 04COA56,
-- Following a successful sentencing appeal, the defendant may not be resentenced in absentia. Also see
State v. Waffle
, 163 Ohio App. 3d 645,
State v. Welch
(1978), 53 Ohio St. 2d 47 -- Defendant must be present at time of sentencing.
Columbus v. Rowland
(1981), 2 Ohio App. 3d 144 -- The defendant's right to be present at every stage of the proceedings extends to the imposition of sentence and any subsequent modification of the sentence. Also see
State v. Walton
(1990), 66 Ohio App. 3d 243;
State v. Raineri
(1992), 84 Ohio App. 3d 432.
State v. Bell
(1990), 70 Ohio App. 3d 765 -- Court may not set forth in a judgment entry a sentence different from that pronounced in open court. Nor may the court increase a sentence once the defendant has served part of that sentence.
State v. Nero
(1998), 125 Ohio App. 3d 529 -- At the sentencing hearing the judge said the sentence would be five years, but during the codefendant's sentencing hearing called defendant back to the courtroom without counsel, questioned him about the burglary, then said "if I find out you lied to me, your sentence is going to be increased to the maximum." Changing the sentence in the entry denied appellant his right to be present and his right to counsel. Remedy is reinstatement of the original sentence.
Cleveland v. Clemons
(1993), 90 Ohio App. 3d 212 -- A court may not add a condition of probation without the defendant being present. In open court a drug test requirement was added to terms of probation for a number of probationers, none of whom were present. The defendant submitted to testing and had his probation revoked based upon the results. Reversed. Condition was not valid.
Estelle v. Williams
(1976), 425 U.S. 501 -- If the defendant makes timely objection, the state cannot compel him to stand trial in identifiable prison or jail clothing. Also see
Bentley v. Crist
(9th Cir. 1972), 469 F. 2d 854;
Hernandez v. Beto
(5th Cir. 1971), 443 F. 2d 634, cert. denied 404 U.S. 897;
Brooks v. Texas
(5th Cir. 1967), 381 F. 2d 619;
Commonwealth v. Keeler
(1970), 216 Pa. Super. 193, 264 A. 2d 407;
Miller v. State
(1970), 249 Ark. 3, 457 S.W. 2d 848;
People v. Zapata
(1963), 220 Cal. App. 2d 903, 34 Cal. Rptr. 171, cert. denied 377 U.S. 406;
Eaddy v. People
(1946), 115 Colo. 488, 174 P. 2d 717;
Collins v. State
(1940), 70 Okl. Cr. 340, 106 P. 2d 273;
Schultz v. State
(1934), 131 Fla. 757, 179 So. 764;
Gaito v. Brierly
(3rd Cir. 1973), 484 F. 2d 529, 26 A.L.R. Fed. 529. Compare
State v. Koelling
(March 21, 1995), Franklin Co. App. No. 94APA06-866, 868, unreported (1995 Opinions 1071, 1082-1087).
State v. Murphy
, 173 Ohio App. 3d 221,
– Defendant‘s disruptive actions in the courtroom were either contrived or the result of a medical condition. Sufficient attention was given to the alternatives during proceedings that use of restraints was warranted, notwithstanding that their use might undermine the presumption of innocence. Other claims arising from the same pattern rejected as well.
Deck v. Missouri
(1995), 125 S.Ct. 2007 -- Due process forbids the routine use of restraints at the penalty phase of a capital trial. Use of visible restraints requires justification specifically related to the particular defendant on trial. The defendant need not prove prejudice. Instead the state must prove beyond a reasonable doubt that shackling did not contribute to the verdict obtained.
State v. Frazier
, Hamilton App. Nos. C-030571, C-030572,
-- Pro se municipal court defendant was improperly kept in handcuffs during voir dire. Cuffs were removed during the trial. Nothing in the record justified the use of restraints. Also see
State v. Frazier
, 158 Ohio App. 3d 407,
State v. Franklin
, 97 Ohio App. 3d 1,
, ¶82 -- "Although we stress that the preferred and encouraged practice prior to handcuffing a defendant during any phase of trial is to hold a hearing on the matter, we do not find this to be an absolute rule." Trial counsel failed to object to defendant being handcuffed and flanked by deputies during penalty phase of a capital case.
State v. Johnson
, 112 Ohio St. 3d 210,
, ¶241-251 -- While a stun belt may be used only when justified, the failure to object waives error unless prejudice appears from the record. Also see
State v. Adams
, 103 Ohio St. 3d 508,
State v. Cassano
, 96 Ohio St. 3d 94,
, ¶52-56 -- While no one should be tried while shackled absent unusual circumstances, no abuse of discretion found where an inmate being tried for the capital murder of his cellmate had a long history of fighting, restraints were ordered after a hearing, hands remained unrestrained, and leg shackles were hidden by a skirt.
State v. Efford
, Stark App. No. 2001CA00290,
-- Drawing an analogy to the use of shackles, court finds no abuse of discretion in placing defendant in a soundproof booth during trial. Concurring judge is concerned about placement in the booth before there had been an outburst in the presence of the jury.
State v. Jalowiec
(2001), 91 Ohio St. 3d 220, 225 -- Where potential jurors may have seen the defendant in handcuffs on the first day of voir dire, the risk of prejudice was slight since the view would have been brief, inadvertent and outside the courtroom.
State v. Jones
, Franklin App. No. 02AP-1390,
-- No abuse of discretion found in restraining a violence prone and disruptive defendant, who among other things, struck defense counsel. Insistence on restraints being in place if he testified held not to have denied his right to do so.
State v. Leonard
, 157 Ohio App. 3d 653,
-- In a postconviction action, the defendant was entitled to a hearing on the claim he was improperly required to wear a stun belt during a capital trial.
State v. Carter
(1977), 53 Ohio App. 2d 125, 131 -- "Ordinarily, because shackles tend to erode the presumption of innocence, the accused should be allowed to appear at trial unfettered." Decision whether the defendant is to appear in restraints if for the court and not the sheriff to make. Also see
United States v. Theriault
(5th Cir. 1876), 531 F. 2d 281, 284-285.
Mackey v. State
(1934), 49 Ohio App. 359, 372-377 -- Defendant was one of three men who forced their way into the Allen County Jail where John Dillinger was being held, killed the Sheriff, and released Dillinger. Restraint was justified. Also see
State v. Woodards
(1966), 6 Ohio St. 2d 14, 23 -- restraint justified when there is a legitimate fear of escape or violence;
Holbrook v. Flynn
(1986), 475 U.S. 560 -- presence of armed guards in courtroom not per se improper.
State v. Morgan
(1992), 84 Ohio App. 3d 229 -- No abuse of discretion found in causing defendant to appear in shackles during trial where there was information that he was a member of the Aryan Brotherhood, was reputed to have fast hands and to have said he would not return to prison, and where there were reports of an escape plot. Also see
State v. Blackmon
(February 14, 1995), Franklin Co. App. No. 94APA05-773, unreported (1995 Opinions 510);
State v. Brandle
(1996), 116 Ohio App. 3d 753.
State v. Chitwood
(1992), 83 Ohio App. 3d 443, 449 -- When the question arises whether the jury has seen the defendant in shackles, court recommends the practice of asking a blind question whether anyone has seen the defendant before his appearance in court, moving on to a curative instruction if it is ascertained he was seen wearing restraints.
In re Pedro R.
, Lucas App. No. L-04-1017,
-- Court did not err by overruling father's motion he be brought from prison for a hearing on transfer of custody. Case did not involve termination of parental rights and he was represented by counsel. Also see
State ex rel. Vanderlaan
(1994), 96 Ohio App. 3d 235, 236;
State v. Evans
, 153 Ohio App. 3d 226,
, ¶18-26 -- A defendant in custody has the right to be brought to a deposition, but may waive that right in writing. A defendant not in custody has the right to notice and to be present, but may waive the right to attend by simply not showing up.
In re Sprague
(1996), 113 Ohio App. 3d 274 -- Generally, Ohio courts do not recognize an absolute right for an inmate to be present at a civil proceeding to which he has a party. Factors to be considered in determining whether due process rights were violated include (1) the private interest affected, (2) the risk of erroneous deprivation and the probable value of additional safeguards, and (3) the governmental burden of additional procedural requirements. Also see
Matthews v. Eldridge
(1976), 424 U.S. 319, 335;
Kampfer v. Donnalley
(1998), 125 Ohio App. 3d 359;
Mancino v. Lakewood
(1987), 36 Ohio App. 3d 219.
In re Forfeiture of One 1986 Buick Somerset
(1993), 91 Ohio App. 3d 558 -- The defendant has a right to be present at the hearing on the forfeiture of his property. Also see
State v. Sutherlin
(1996), 111 Ohio Ap. 3d 287.
In re Davis
(March 30, 1994), Franklin Co. App. No. 94APF08-1205, unreported (1995 Opinions 1334) -- An inmate does not have an absolute right to be present for all hearings in civil proceedings. Thus, counsel's failure to assure presence did not mean inmate received ineffective assistance of counsel. Counsel was present for all hearings in termination of child custody proceedings but father was present only for second round after objections had been sustained on the basis that he had not been present. Mother failed to attend later hearing and was not subject to cross-examination with father present in the courtroom.
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
Contents may not be duplicated without express permission.