The right of a criminal defendant to be present at trial has been characterized by the Supreme Court as “one of the most basic rights” guaranteed by the Constitution, and yet the Court has only intermittently discussed the constitutional standard for assessing its relinquishment. Both federal and state courts now perceive that the constitutional standard only requires a voluntary, knowing and intelligent waiver, and they frequently focus upon the issue of the voluntariness of a defendant’s absence. A large number of the federal circuits have supplemented this constitutional standard with a non-constitutional, supervisory requirement that a trial court balance the individual and governmental interests involved before proceeding with trial in absentia. This approach has not commended itself to a majority of the state courts which have considered it.

This article discusses the evolution of relinquishment analysis in the Supreme Court and the development in the federal courts of this non- constitutional, prudential methodology. It then concludes that there is a need to refine the constitutional standard for assessing a potential relinquishment of the right to be present, so that both the individual and societal interests involved are more adequately accommodated.

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