Rules of Criminal Procedure

Rules of Criminal Procedure Criminal Procedure Rule 18: Presence of defendant

(Applicable to District Court and Superior Court)

Table of Contents

(a) Presence of defendant

In any prosecution for crime the defendant shall be entitled to be present at all critical stages of the proceedings.

(1) Defendant absenting self

If a defendant present at the beginning of a trial thereafter is absent without cause or without leave of court, the trial may proceed to a conclusion in all respects except the imposition of sentence or probation as though the defendant were still present.

(2) Waiver of presence in misdemeanor cases

A person prosecuted for a misdemeanor may upon request, with leave of court, be excused from attendance if represented by counsel or an agent authorized by law and may be excused from attendance without leave of court if so authorized by the General Laws.

(3) Presence not required

A defendant need not be present at a revision or revocation of disposition pursuant to rule 29 or at any proceeding where evidence is not to be taken.

(b) Presence of corporation

A corporation may appear by a duly authorized agent for the purposes of this rule.

Reporter's notes

(2022)

This amendment makes two changes to bring the rule into conformity with current law and practice. First, it removes gendered pronouns and references in Rule 18(a)(1) and (2) and clarifies that a defendant’s presence is required for imposition of any sentence or the imposition of probation. Rule 18(a)(1) allows a trial to proceed to its conclusion after a defendant is absent without cause or leave of the court but requires the defendant’s presence for imposition of sentence. A defendant has a right to be present at sentencing. Commonwealth v. Pacheco, 477 Mass. 206, 215 (2017) (citing Commonwealth v. Williamson, 462 Mass. 676, 685 (2012)). This amendment clarifies that the defendant’s presence is also required for imposition of probation. The amendment uses “sentence” rather than “disposition” because the defendant’s presence would not be required for a dismissal.

Second, in Rule 18(a)(3) the amendment implements the terminological change from “sentence” to “disposition” required by Commonwealth v. Beverly, 485 Mass. 1 (2020), to reflect more accurately that potential dispositional outcomes in criminal cases subject to a Rule 29 motion to revise and revoke may include continuances without a finding. Id., 485 Mass. at 10 (“a continuance without a finding disposition may fairly be considered a sentence for the purposes of Rule 29”).

(1979)

This rule is patterned primarily upon Rule 3.180 of the Florida Rules of Criminal Procedure and is a codification of accepted Massachusetts practice. 

Under the Florida rule a defendant's presence is commanded at certain specifically enumerated “critical stages” of a criminal proceeding: arraignment, entry of plea, pretrial conference, all trial proceedings before the court, jury view, rendition of verdict, pronouncement of judgment and imposition of sentence. See Uniform Rule 713, which would grant the defendant the right to be present “at every stage of the trial ... and at the disposition hearing” (emphasis supplied), and which would require his presence unless he is represented by counsel and has waived the right to be present, has voluntarily failed to be present, or has been justifiably excluded. Rules of Criminal Procedure (U.L.A.) Rule 713 (1974). Rule 18 neither presumes to define those stages of a proceeding when the defendant's presence is constitutionally mandated, nor to compel his presence at every stage, rather it instructs that he is to be present at “all critical stages.” The term “critical” is unrelated to its use for other purposes, e.g., assignment of counsel, and is to be interpreted in light of relevant judicial decisions. 

The defendant's presence is constitutionally required during all critical stages because fairness demands that the defendant be present when his substantial rights are at stake, and those instances are not limited to the specific proceedings listed in the Florida rule. Conversely, there are matters which the court and defendant's counsel can determine in the defendant's absence; to require the defendant's presence at all times could in some instances unduly prolong the disposition of the case. Thus, under this rule, the detailing of what stages are deemed critical is left to judicial determination. 

The sixth amendment to the United States Constitution guarantees a defendant the right to confront witnesses at trial, which right is also guaranteed by article 12 of the Massachusetts Declaration of Rights and by statute, G.L. c. 278, § 6. However, the primary constitutional protection is afforded by the due process clause of the fourteenth amendment. “[T]he presence of the defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence....” Snyder v. Massachusetts , 291 U.S. 97, 107-08 (1934). Thus, the Constitution requires the presence of the defendant at proceedings other than trial if his presence would be essential to preserve substantial rights. 

Subdivision (a)

Where a stage of the proceedings is deemed critical, the defendant's presence is required and the court is not to proceed in his absence without determining that he has effectively waived or forfeited the right to be present. Taylor v. United States , 414 U.S. 17 (1973). Most hearings either before or after trial do not require the defendant's presence. See Mass.R.Crim.P. 30. For example, his presence is not required at pretrial motions, including motions for a change of venue, Mass.R.Crim.P. 37, and motions for a continuance, Mass.R.Crim.P. 10Commonwealth v. Robichaud , 358 Mass. 300 (1970). And his presence is not generally required at post-trial proceedings. Commonwealth v. Dupont , 2 Mass.App. Ct. 566 (1974); Mass.R.Crim.P. 30.  But the defendant's presence is required at all trial proceedings (See Commonwealth v. Robichaud, supra), at arraignment (Mass.R.Crim.P. 6), when a plea is made (Mass.R.Crim.P. 12), and at sentencing (Thompson v. United States , 495 F.2d 1304 [1st Cir.1974]; Mass.R.Crim.P. 28). 

(a)(1). Although a defendant is entitled to be present at critical stages, he may waive or forfeit that right. Commonwealth v. McCarthy , 163 Mass. 458 (1895). He may waive his right to be present at the trial of a felony in either of two ways. First, he may voluntarily absent himself from trial, in which case the trial may continue in his absence. Commonwealth v. Flemmi , 360 Mass. 693 (1971). Secondly, the defendant may become so obstreperous as to require his removal from court in order to preserve the orderliness of judicial proceedings. Illinois v. Allen , 397 U.S. 337 (1970); Commonwealth v. Senati , 3 Mass.App. 304 (1975); Mass.R.Crim.P. 45; See ABA Standards Relating to the Function of the Trial Judge § 6.8 (Approved Draft, 1972). However, trial cannot begin in the defendant's absence, Diaz v. United States , 223 U.S. 442, 455 (1912), thereby eliminating the possibility that a defendant, by voluntarily absenting himself can be deemed to have waived his right to be present at the inception of trial. 

The defendant is not prohibited by this rule from waiving his right to be present at the trial of capital cases. The traditional rule enunciated in Diaz v. United States, supra, is that in capital crimes the defendant is not permitted to be tried in absentia because of the severity of the potential punishment. The rule was recently reaffirmed in Taylor v. United States, supra. However, the prohibition against waiver of the right to be present in capital cases does not exist in Rule 43 of the Federal Rules of Criminal Procedure, nor is it suggested by Rule 713 of the Uniform Rules of Criminal Procedure (U.L.A.) (1974). As the Advisory Committee Note to Federal Rule 43 recognizes, the present state of the law on this issue is not clear. As with the federal rule, this rule does not attempt to resolve this disputed issue, but leaves the matter to future judicial decisions. 

(a)(2). This is a restatement of G.L. c. 278, § 6. General Laws c. 274, § 1 defines felonies and misdemeanors. 

(a)(3). See generally the discussion of when a defendant's presence is required, supra. 

Subdivision (b)

Federal Rule of Criminal Procedure 43(c)(1) provides that “a corporation may appear by counsel for all purposes.” It is, therefore, unnecessary for an officer of the corporation to be present at arraignment plea, trial, or sentencing (unless individually charged) in any case, whether misdemeanor or felony. 8B J. MOORE, FEDERAL PRACTICE para. 43.02[3] (Rev. ed. 1978). Under Mass.R.Crim.P. 18, the corporation may appear for all purposes by “duly authorized agent” which does not require counsel.

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