Why *must* a defendant be present during a criminal trial? The Sixth Amendment guarantees: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.... I recently discovered that, in general, these "rights" are not optional! For example, under under Federal rule: if you want a bench trial in a criminal matter, both the prosecution and the judge must agree to waive the jury (FRCP 23a). (Many states do, however, allow a criminal defendant to unilaterally opt for a bench trial.) Likewise: Under FRCP 43, a criminal defendant cannot opt out of being present for his entire trial. These rules seem opposed to the basic civic principles that surround the presumption of innocence before conviction, and the right of a person to pursue an effective defense. I can think of plenty of reasons why a person may not want to show his face in a public court, much less sit through the entire process. Including reasons that may prejudice the triers of fact: e.g., disfigurement, handicaps that produce irritating tics, etc. The notes on these federal rules cite a great deal of jurisprudence and history. Before I attempt my own research, can anyone point to principles or customs that might illuminate or reconcile these FRCP mandates with the basic understanding of American criminal justice I described?
SCOTUS has at least three times found that it is necessary for a defendant to be present at the beginning of a criminal trial in order to satisfy the Constitutional mandates regarding due process. So the simple answer is that a defendant must be present during a criminal trial because without his presence no trial can begin. However, once a trial has begun FRCP Rule 43 itself (section c) allows for the absence of the defendant. Among the provisions: The defendant can waive his right to be present simply by voluntary absence. The defendant can also waive his right by disruptive behavior in the court.
united-states In the United States, only a very few rules of evidence (most notably the &quot;confrontation clause which is similar to the hearsay rule but not identical) have constitutional status. Other rules of evidence are not constitutionally required so long as the proceedings as a whole do not deny the defendant due process of law. Often, local government court systems are not required to follow the rules of evidence that are adopted in the state court system.
It is the job of the judge to instruct the jury about the law. If Texas had pattern instructions I'd look up what the instruction is for this matter, but you don't, so I don't know what the judge would say. But it is the judge's sole prerogative to instruct the jury in the law. If the question is a "commitment question", then it is an improper question and should be disallowed, see Stendefer v. State. The question "Would you presume someone guilty if he or she refused a breath test on their refusal alone?" is such a commitment question, and is disallowed. Similarly, "If the evidence, in a hypothetical case, showed that a person was arrested and they had a crack pipe in their pocket, and they had a residue amount in it, and it could be measured, and it could be seen, is there anyone who could not convict a person, based on that" (Atkins v. State, 951 S.W.2d 787). An improper commitment question could be of the type "could you refrain...": Let us assume that you are considering in the penalty phase of any capital murder case, okay? And some of the evidence that has come in shows that the victim's family was greatly impacted and terribly grieved and greatly harmed by the facts․Can you assure us that the knowledge of those facts would not prevent you or substantially impair you in considering a life sentence in such a case (Penry v. State, 903 S.W.2d 715). One way in which a commitment question can be legal is if it asks basically "can you uphold the law?", for example "can you consider probation in a murder case?", or "are you willing to consider mitigating circumstances". The wrong answer to those questions will lead to a for-cause dismissal. The third question is flagrantly improper, the first is rather improper, and the second probably is. If the question can be framed in terms of a candidate's willingness to follow the law, then it should be legal.
Jury trials in common law jurisdictions are simply a fact, and don't need or get justification. Jury trials are ancient. In England the Scandinavians had an assembly, the þing (&quot;thing&quot;) for deciding matters, such as guilt. Under Norman rule this became systematized, to the point that the Magna Carta Art. 39 states the law that No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land There was a period subsequently where the King gained more power and trials were more arbitrary and oppressive through the Star Chamber, leading to various reforms such as the birth of the US. The right to a jury trial is for reasons of historical precedent part of the US constitution. Because of the legal right to a jury (especially in criminal cases), the only question that can reasonably come up is for a defendant to ask if they will have better chances with a bench trial versus a jury trial. All it takes is one person on a jury to not be convinced to avoid a conviction, so superficially you'd think an accused person would prefer a jury trial to increase their odds of not being convicted. This is encouraged by a mind-set &quot;the state versus the citizen&quot;, where the prosecution and the judge are both agents of the government. On the other hand, the average citizen is more likely to misunderstand the import of evidence, and be less able to disregard statements made during the trial that were held inadmissible.
The California jury instructions for the crime of perjury give more detail on what it means to commit perjury: it's not just that you make a statement that is false, you have to willfully state that the information is true even though you know it is false. If you have a belief that you will be convicted for perjury (or any crime) by testifying, you may invoke your 5th Amendment right (I assume you are not testifying as the defendant in a criminal matter). You might (theoretically: see below on immunity and perjury) be granted immunity from prosecution, in which case there is no 5th Amendment right to refuse to testify (you are not putting yourself in criminal jeopardy), and the court can order you to testify. Or, you might not be granted immunity and still be ordered to testify. The federal immunity statute, 18 USC 6002, also needs to be scrutinized. When ordered to testify, "the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination", but it generally cannot be used against him: no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case However, there is an exception: except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. In other words, you cannot be immunized against a perjury charge. In Kastigar v. United States, 406 U.S. 441 defendant refused an order to testify, on the grounds that they (allegedly) believed that the government's grant of immunity was not broad enough, i.e. that there were areas where they might be questions and forced to criminally implicate themselves. They refused, and were held in contempt. The opinion recognized that the 5th Amendment "protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used" (emphasis added). In Mason v. United States, 244 U.S. 362, the court held that The Fifth Amendment does not relieve a witness from answering merely on his own declaration or judgment that an answer might incriminate him; whether he must answer is determinable by the trial court in the exercise of its sound discretion, and unless there is reasonable ground, as distinct from a remote or speculative possibility, to apprehend that a direct answer may prove dangerous to the witness, his answer should be compelled. Heike v. United States, 227 U.S. 131 asserts that "the constitutional protection is confined to real danger, and does not extend to remote possibilities out of the ordinary course of law, citing Brown v. Walker, 161 U.S. 591 (itself quoting Lord Chief Justice Cockburn): "the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things; not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct" Although the wording of the immunity statute does not allow immunity from prosecution for perjury, the 5th Amendment right can only be invoked against a real legal jeopardy. They can be compelled to testify, they probably cannot be immunized against a perjury conviction (certainly not at the federal level). We would need to know the entire circumstances of the case to be able to assess whether the "knowing to be false" part could be proven beyond a reasonable doubt.
So the most obvious is that the U.S. Miranda Rights specifically mention right to legal counsel and right to state provided legal counsel (Public Defenders) if you cannot afford legal counsel (Contrary to some opinions, these guys are very good at their job... it's just that they are also very over worked and private industry pays better). While the right exists in the U.K., the U.K. version of the required reading of rights only speaks to right against self-incrimination, which, if you want a difference is a good place to look. In the self-incrimination clauses, the U.K. and U.S. versions are very different. The U.K. right is a qualified right where as the U.S. is an absolute or unqualified right. This is a distinction which sounds silly upfront but is very serious in how things will transpire. Suppose that you are arrested for the murder of your spouse. You definitely did not do and the &quot;one armed man&quot; definitely did. Either way, you remain silent during interrogation. At trial, your defense is &quot;It wasn't me it was the one armed man&quot; and you intend to present evidence of this. In the U.S. this would be permitted, no further questions asked (or at the least, defeated by other means unrelated to you giving the cops the cold shoulder). In the U.K., this would be first be challenged by the prosecution with &quot;Why didn't you say this when you were arrested?&quot; and your silence on this matter will be used against you. In fact, asking that challenge in the U.S. is very inappropriate, as was recently seen in the Kyle Rittenhouse trial, where the Prosecution did ask that up front to Rittenhouse, prompting a scolding from the judge out of view from the jury. The reason for this is that in the UK there are more strict rules placed on cops during interrogation than there are in the U.S. (In the former, cops cannot lie to you about the facts of the case and they cannot interrupt your statements to them once you start to respond. This is par for the course in the U.S. for cops. In fact, in the U.S., shouting &quot;It was the one armed man&quot; on arrest can do more damage than just shutting up until you're before a judge and jury since that lets the prosecution use the implausibility of a one armed man against you (in both nations, statements that are against your interest do not violate hearsay rules, thus, the cops will only use such a statement against you... it's your job to prove it true or at least plausible enough to make a jury doubt the cops are right.). Also note that this is England and Wales jurisdictions only. Scotland, having its own legal system, retains the right against self-incrimination as an absolute right. Also a big obvious one but the read rights would not be called the &quot;Miranda Rights&quot; by the police or legal community (it may be, by the crooks they are arresting who have no clue that the TV version might be the U.S. one since it's more likely to get shown there than on U.K. TV.). In the U.K. they would be called &quot;Standard Cautions&quot; or &quot;Reading the rights&quot;. The U.S. name derives from the SCOTUS case Miranda v. Arizona which was the ground-breaking case that made this required by all police when interrogating a suspect. Additionally, each state has their own version, which generally reads the same way (they explain your 5th and 6th Amendment rights to silence and an attorney) and may vary on asking if you choose to waive the rights upon receiving an affirmative answer that the rights were understood (&quot;With these rights in mind, do you wish to speak to me?&quot; is the proper phrasing). They also are read from cards (business card to index card sized) where the right is printed in English and Spanish and the suspect must sign it as part of acknowledging that their rights were read.
I'd imagine that testimony from the defendant is rare enough that in the majority of cases, prosecutors do not meaningfully prepare for a cross examination. To the extent they do, I'd expect the preparation is similar to that for basically any other witness. So I wouldn't expect complicated flowcharts, because the general rule at trial is that you only ask questions whose answers are both known and helpful. So if I need to place the defendant at the OK Corral at 3 p.m., I'm only going to ask him where he was at 3 p.m. if I have evidence showing that fact is true -- maybe he gave a written statement to the sheriff, maybe he posed for a daguerrotype, whatever. I expect him to deny it, so I don't ask the question unless I have evidence more convincing than his denial. In this way, a defendant -- like any hostile witness -- is used less to provide any facts of their own, but rather as an involuntary narrator of my own story, authenticating evidence and validating the facts consistent with my theory of the case.
What the jury must do A jury must follow the law it is given by a judge. A jury cannot "go rogue" and bring back a verdict on something that has not been charged and/or that the jury has not been told to consider. So, whether a jury has the option of convicting a defendant of a lesser included offense - a crime contained within a more serious crime - depends on the instructions the judge gives. Is it up to the judge and the judge alone? Not necessarily. Typically, judges must issue the lesser included offense instructions to the jury if the lesser included offense is part of the charged offense if there exists significant evidence the defendant only committed that lesser crime. So, only if the evidence supports such instructions. Further, at least in some jurisdictions, a trial judge may not instruct jurors on a lesser included offense if there has been no request to do so by the defendant. There appears to be a disagreement over what, if any, power a prosecutor should have in making such a request. One side would argue that a prosecutor would want to ask for it so that a defendant who is getting off on the larger crime doesn't skate completely free on, for example, a technicality. Another side would argue that prosecutors should not have a say because they are in fact who control which charges are submitted to the grand jury for indictment.