On June 25, 2015, the Second Circuit issued a decision in United States v. Yannai, 13-4466, finding that a trial court did not err in continuing a criminal trial without the defendant being present based on its finding that the defendant had deliberately absented himself from trial.
In Yannai, the defendant appealed to the Second Circuit the decision by the EDNY to conduct trial without his being present based on its finding that the “defendant had waived his right to be present by deliberately overdosing on prescription drugs.”
The basic facts relevant to the appeal are that “when federal agents arrived at” the defendant’s home “to arrest him,” the defendant “deliberately swallowed a large number of pills in an attempt to commit suicide” because, he later said, he “felt hopeless about his legal prospects and that he would attempt to commit suicide again rather than go to prison.” The defendant was hospitalized and later kept in detention as a suicide risk. However, as time went on, he convinced the court that he no longer was a risk and was released on bail. The case proceeded to trial. The day after the parties delivered their summations, the court was told that the defendant “had collapsed at a gas station on his way to the courthouse and was in” an emergency room, unconscious. The court dismissed the jury for the day and, after a recess, during which counsel gathered more information, the court spoke by telephone with the defendant’s psychiatrist and his primary attending physician, who told the court that the most likely cause of the defendant’s condition was an intentional overdose of prescription drugs.
The EDNY held that the defendant “had voluntarily absented himself from the” proceedings and for that reason, proceeded with trial without him. The court charged the jury without the defendant being present; he was present for the jury verdict only by telephone. The defendant was found guilty and appealed. The Second Circuit held on appeal that it was not error to continue the trial without the defendant being present, explaining:
A defendant may waive his right to be present, either expressly or by his conduct. Where the offense is not capital and the accused is not in custody, if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present, and leaves the court free to proceed with the trial in like manner and with like effect as if he were present. This exception to the defendant’s right to be present is codified in Rule 43(c)–formerly Rule 43(b)–which provides that a defendant who was initially present at trial waives the right to be present when the defendant is voluntarily absent after the trial has begun, and that if the defendant waives the right to be present, the trial may proceed to completion, including the verdict’s return during the defendant’s absence. This rule, which allows an ongoing trial to continue when a defendant disappears, deprives the defendant of the option of gambling on an acquittal knowing that he can terminate the trial if it seems that the verdict will go against him.
A defendant who deliberately fails to appear in court does so voluntarily, and his absence can be considered a knowing waiver. Waiver of a constitutional right, however, is not to be presumed; indeed, there is a presumption against such a waiver. The district court must vigorously safeguard a criminal defendant’s right to be present.
The Second Circuit went on to analyze the trial court’s assessment of whether the defendant’s absence was voluntary, and held that the trial court did not abuse its discretion in continuing the trial in the defendant’s absence.