A Massachusetts prosecutor wants to try defendants who fail to appear for trial in absentia despite constitutional questions.

Bristol County District Attorney C. Samuel Sutter has begun a pilot program in Fall River, where defendants sign waivers letting prosecutors proceed with their cases even if they are not in court, The Standard-Times of New Bedford reports.

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[What do you think? Can he do this?]

Well, a defendant has a right to be present, but that doesn't mean he has to be present. If he waives his right to be present, I don't see why they can't proceed without him.

I suppose if the question is one of constitutionality, I agree with Andrea (unless the state constitution speaks to this issue otherwise). If it is one of legality, it would depend on the state's statutes that address the situation (e.g., TX CCP Art. 33.03).

The defense attorney in the article was focused exclusively on federal constitutional issues, I believe. He said that no one can ever waive the right of confrontation. I must've missed that case.

The Texas Legislature has passed laws permitting a defendant to plead guilty to a crime or true to a revocation without being in the courtroom, mostly to accommodate prisoners without transporting them around the state. Those waivers are pretty intense, often requiring appointment of a lawyer, recording, etc.

But, yes, in general, article 1.14, CCP, anticipates that a defendant may waive any right (other than the right of trial by jury in a death penalty case).

Still, it does seem odd to waive a right in anticipation of the commission of a crime (bail jumping). Could the Legislature simply indicate that flight is a constructive waiver?

A defendant waives the Sixth Amendment right to confrontation by being voluntarily absent after trial has commenced in the defendant's present. Taylor v. U.S., 414 U.S. 17, 18 (1973). Could or should Taylor be extended to "anticipated" absences? Would it pass the smell test? I dunno.

The Eleventh Court of Appeals for Texas recently held a defendant who voluntarily absented himself before jury selection was not denied his Sixth Amendment right to confrontation. The evidence in the case showed he asked the jury for permission to leave the courtroom "because he did not want to attend his trial unless absolutely necessary." Gore v. State, No. 11-09-00245-CR (Tex. App.---Eastland Dec. 9, 2010, no pet.). Estoppel strikes again. Could Gore be stretched to include otherwise voluntary waivers signed months before trial?

I think JB is just disappointed he didn't think of it first.

For additional info, check out page 120 of The Perfect Plea (Presence of Defendant). The last sentence says, "Extreme care should be taken in conducting a plea without the presence of a defendant, and the better practice is not to waive the defendant's presence at a critical stage like entry of a plea."