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Rule 43 – Presence of the Defendant

May 14, 2021 | Criminal Procedure, Ohio

(A) Defendant’s presence.

(1) Except as provided in Rule 10 of these rules and division (A)(2) of this rule, the defendant must be physically present at every stage of the criminal proceeding and trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence, except as otherwise provided by these rules. In all prosecutions, the defendant’s voluntary absence after the trial has been commenced in the defendant’s presence shall not prevent continuing the trial to and including the verdict. A corporation may appear by counsel for all purposes.
(2) Notwithstanding the provisions of division (A)(1) of this rule, in misdemeanor cases or in felony cases where a waiver has been obtained in accordance with division (A)(3) of this rule, the court may permit the presence and participation of a defendant by remote contemporaneous video for any proceeding if all of the following apply:

(a) The court gives appropriate notice to all the parties;
(b) The video arrangements allow the defendant to hear and see the proceeding;
(c) The video arrangements allow the defendant to speak, and to be seen and heard by the court and all parties;
(d) The court makes provision to allow for private communication between the defendant and counsel. The court shall inform the defendant on the record how to, at any time, communicate privately with counsel. Counsel shall be afforded the opportunity to speak to defendant privately and in person. Counsel shall be permitted to appear with defendant at the remote location if requested.
(e) The proceeding may involve sworn testimony that is subject to cross examination, if counsel is present, participates and consents.
(3) The defendant may waive, in writing or on the record, the defendant’s right to be physically present under these rules with leave of court.
(B) Defendant excluded because of disruptive conduct. Where a defendant’s conduct in the courtroom is so disruptive that the hearing or trial cannot reasonably be conducted with the defendant’s continued physical presence, the hearing or trial may proceed in the defendant’s absence or by remote contemporaneous video, and judgment and sentence may be pronounced as if the defendant were present. Where the court determines that it may be essential to the preservation of the constitutional rights of the defendant, it may take such steps as are required for the communication of the courtroom proceedings to the defendant.

Ohio. Crim. R. 43

Effective:July 1, 1973; amended effective July 1, 2008.

Staff Note (July 1, 2008 amendments)

Rule 43 is amended so that in misdemeanor cases and in felony cases where the defendant has waived the right to be present, the “presence” requirement can be satisfied either by physical presence or presence by video teleconferencing. Advances in video teleconferencing technology have enabled courts to save considerable expense by conducting proceedings by video teleconferencing while still preserving the rights of the defendant.

In order to ensure that the defendant’s rights are protected, any proceeding conducted through video teleconferencing must meet certain requirements: the defendant must be able to see and hear the judge, the judge must be able to see and hear the defendant, and the defendant must have the ability to communicate confidentially with his or her attorney. Furthermore, presence by video teleconferencing is permitted under limited circumstances involving sworn testimony. Counsel must be present and must consent to the use of video teleconferencing. Contemplated in this type of hearing is a miscellaneous criminal proceeding such as probation revocation, protection order hearing or bond motion.