What rights does a defendant have to be personally present at a critical stage of a criminal trial?

California, United States of America


The following excerpt is from People v. Smith, A139230 (Cal. App. 2016):

Under the federal and state Constitutions, " 'a criminal defendant accused of a felony has the right to be present at every critical stage of the trial.' " (People v. Rundle (2008) 43 Cal.4th 76, 133.) Specifically, a defendant has a right under the Sixth Amendment's Confrontation Clause to be personally present if his or her presence is necessary to vindicate the right to effective cross-examination; a right under the Fourteenth Amendment's due process clause to be present " 'at a "stage . . . that is critical to [the] outcome" [if] "his [or her] presence would contribute to the fairness of the procedure" ' "; and a right under article I, section 15 of the California Constitution to be present at a proceeding that bears " ' "a ' " 'reasonably substantial relation to the fullness of his [or her] opportunity to defend against the charge.' " ' " ' " (People v. Cole (2004) 33 Cal.4th 1158, 1231.) "A defendant may waive his or her constitutional right to be

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present during a critical stage, provided the waiver is knowing, intelligent, and voluntary." (Rundle, at pp. 133-134.)

Under section 977, a defendant in a felony case must "be personally present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence." ( 977, subd. (b)(1).) The defendant must also "be personally present at all other proceedings" unless he or she executes a written waiver. ( 977, subd. (b)(1)-(2).) "[N]either this statutory mandate nor the constitutional right to be present at trial extends to chambers or bench discussions outside the presence of the jury when those matters do not bear a reasonably substantial relation to the opportunity to defend." (People v. Holt (1997) 15 Cal.4th 619, 706.)

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