Delaware Trial Handbook § 3:2. PRESENCE OF PARTIES AND COUNSEL

Due process requires that a defendant accused of a crime have the right to be present at all stages of a jury trial whenever the defendant’s presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge. In applying this test, courts ask whether the defendant could personally give advice or suggestion or even decide to supersede his lawyers altogether and conduct the trial himself. Thus, a defendant’s constitutional right to be present wanes when pure questions of law are discussed and waxes when his or her personal knowledge becomes germane.15

In addition to the constitutional dimension, a defendant’s right of presence is granted by court rule which requires a defendant to be present “at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.” The rule does not require a defendant’s presence “[a]t a conference or argument upon a question of law.”15.1  There is also no right to be present at jury orientation.15.2

This rule of the right of presence implements two fundamental precepts of the law: (1) the accused’s right to confront his or her accusers, and (2) the accused’s common-law “privilege of presence” during the entire trial.16 The rule gives the defendant the right to be present during jury selection.16.1  The rule does not apply, however, to such processes as an in camera voir dire of individual jurors17 or hearings to determine whether a witness should be granted testimonial immunity.18 Nor does the rule necessarily apply to all stages of a non-jury trial, for example, where the verdict is announced in a written ruling that is mailed to the parties.19 

A defendant in a criminal case need not be present at an arraignment by written pleading, at a conference or argument upon a question of law or at a hearing for reduction of sentence. Further, a corporation that is a defendant in a criminal action may appear solely through counsel for all purposes. In prosecutions for offenses punishable by fine or imprisonment for not more than one year or both, the court, with the written permission of the defendant, may permit arraignment,  plea, trial and imposition of sentence in the defendant’s absence.20

A defendant accused of a crime may waive the right to be present in writing, or by voluntarily being absent after the trial has commenced or, after being warned by the court that disruptive conduct will cause the removal of the defendant from the courtroom, persisting in conduct which is sufficient to justify exclusion from the courtroom.21 The right to waive presence belongs to the defendant, and may not be waived by counsel without the defendant’s agreement.21.1

A defendant has no right to be present when a sentencing judge corrects a clerical error in the sentence.  However, when the sentence is adjusted to correct for an error of law, and not a mere clerical error, a defendant has a right to be present when the amended sentence is imposed.21.2

The victim of a crime has the right to be present whenever a defendant has the right to be present during a court proceeding concerning the crime charged (other than a grand jury proceeding), even if called upon to testify in that proceeding, unless the defendant can show good cause why the victim should be excluded. When the victim is present, the court, at the victim’s request, must permit an individual to be present to provide support to the victim, unless the court determines that the exclusion of the individual is necessary to protect the defendant’s right to a fair trial.22 

Although there is no Delaware authority determining the existence or scope of the right of a civil litigant to be present at trial,23 given the Constitutional provision for due process,24 the historical tradition of permitting litigants to be present, in court25 and the evidentiary rule withholding authorization to include parties in any order sequestering witnesses,26 the right of civil litigants to be present at all stages during their trials is generally accepted in Delaware.

In the course of a trial, a judge may confer with counsel outside the presence of their clients. In such circumstances, the judge must proceed with the utmost caution and restraint. Under no circumstances should the judge use the occasion to resolve any factual issues on the merits by stipulation of counsel or otherwise unless the parties have clearly agreed on the record.27

15. Bradshaw v. State, 806 A.2d 131, 134 (Del. 2002); Capano v. State, 781 A.2d 556, 653 (Del. 2001); Shaw v. State, 282 A.2d 608, 609-10 (Del. 1971); Shy v. State, 246 A.2d 926, 927 (Del. 1968).

15.1. Capano v. State, 781 A.2d 556, 653 (Del. 2001); Super. Ct. Crim. R. 43(a); Comm. Pls. Ct. Cr. R. 43(a); Fam. Ct. Cr. R. 43; Ald. & M. Ct. R. 24.

15.2. Jeppi v. State of Delaware, No. 141, 998 (Del. Nov. 12, 1998), disposition reported at 723 A.2d 386 (Del. 1998) (TABLE).

16. Shaw v. State, 282 A.2d 608, 609 (Del. 1971).

16.1. State v. Smith, I.D. No. 0312008370, slip op. at 7-8, Babiarz, J. (Del. Super. Oct. 2, 2008), aff’d mem., 976 A.2d 172 (Del. 2009); Super. Ct. Crim. R. 43(a); Comm. Pls. Ct. Cr. R. 43(a); Fam. Ct. Cr. R. 43; Ald. & M. Ct. R. 24.

17. Dutton v. State, 452 A.2d 127, 147 (Del. 1982).

18. Shockley v. State, 269 A.2d 778, 781 (Del. 1970).

19. Bailey v. State, 419 A.2d 925, 927 (Del. 1980).

20. Super. Ct. Cr. R. 43(c).

21. Walls v. State, 850 A.2d 287, 289-90 (Del. 2004); Bradshaw v. State, 806 A.2d 131, 135-36 (Del. 2002); Super. Ct. Crim. R. 43(b); Comm. Pls. Ct. Cr. R. 43; Fam. Ct. Cr. R. 43.  See also Martini v. State, No. 643, 2006, Steele, J. (Del. Dec. 21, 2007), disposition reported at 941 A.2d 1019 (Del. 2007) (due process rights violated and conviction reversed where judge did not warn defendant of risk of removal from courtroom and failed to give defendant an opportunity to return to courtroom if the defendant promised to conduct himself in an orderly manner).

21.1. Bradshaw v. State, 806 A.2d 131, 137-38 (Del. 2002).

21.2 Jones v. State, 672 A.2d 554, 555-56 (Del. 1996).

22. 11 Del. C. §§ 3512 9407(a).

23. Federal courts recognize the right of a civil litigant to be present either in person or through counsel. See Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 81 (1919); Lane v. Tennessee, 315 F.3d 680, 682 (6th Cir. 2003) (civil litigants have a due process right to be present unless their absence furthers some important government interest); Arrington v. Robertson, 114 F.2d 821, 823 (3d Cir. 1940).

24. See Del. Const. art. I, § 7.

25. See Smillie v. Lerner, 159 A. 808 (N.J. 1932).

26. D.R.E. 615.

27. S. v. K., 453 A.2d 94, 96 (Del. 1982).

© 2010  David L. Finger