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Rule 43 – Presence of the Defendant

May 14, 2021 | Criminal Procedure, Tennessee

(a) Presence Required. Unless excused by the court on defendant’s motion or as otherwise provided by this rule, the defendant shall be present at:

(1) the arraignment;
(2) every stage of the trial, including the impaneling of the jury and the return of the verdict; and
(3) the imposition of sentence.
(b) Continued Presence Not Required. The further progress of the trial, to and including the return of the verdict and imposition of sentence, shall not be prevented and the defendant shall be considered to have waived the right to be present whenever a defendant, initially present:

(1)Voluntary Absence. Voluntarily is absent after the trial has commenced, whether or not he or she has been informed by the court of the obligation to remain during the trial; or
(2)Disruptive Conduct. After being warned by the court that disruptive conduct will result in removal from the courtroom, persists in conduct justifying exclusion from the courtroom.
(c) Procedure After Voluntary Absence or Removal.

(1)Representation by Counsel. If a trial proceeds in the voluntary absence of the defendant or after the defendant’s removal from the courtroom, he or she must be represented in court by counsel.
(2)Disruptive Conduct. If the defendant is removed from the courtroom for disruptive behavior under Rule 43(b)(2):

(A) Access to Counsel After Removal. The defendant shall be given reasonable opportunity to communicate with counsel during the trial; and
(B) Periodic Review of Removal. The court shall determine at reasonable intervals whether the defendant indicates a willingness to avoid creating a disturbance if allowed to return to the courtroom. The court shall permit the defendant to return when the defendant so signifies and the court reasonably believes the defendant.
(d) Presence Not Required. A defendant need not be present in the following circumstances:

(1)Organizational Defendant. The defendant is a corporation, limited liability company, or limited liability partnership which is represented by counsel.
(2)Minor Offense. The maximum possible sentence is a fine not in excess of fifty dollars ($50.00), no incarceration is possible, and the defendant is represented by counsel.
(3)Question of Law. At a conference or argument on a question of law.
(4)Arraignment. At arraignment when:

(A) the defendant’s attorney of record is present in open court and presents a waiver of presence signed by the defendant; or
(B) the arraignment is conducted by electronic audio-visual conference as set forth in Rule 43(f).
(e) Initial Appearance-Audio-Visual Devices. The initial appearance of the defendant before the court pursuant to Rule 5 of the Tennessee Rules of Criminal Procedure may be through the use of an electronic audio-visual device if:

(1) the judge or magistrate exercises sound discretion and determines that the use of such devices will achieve the purposes of the Rules of Criminal Procedure;
(2) the judge or magistrate and the defendant are able to view and communicate with each other simultaneously and to be heard in the courtroom by members of the public; or, if the judge or magistrate is not in a location accessible to the public at the time of the initial appearance, the audio-visual communication is contemporaneously accessible to the public; and,
(3) the court accepts no plea except a plea of not guilty.
(f) Arraignment-Audio-Visual Devices. Unless the defendant objects, he or she may be arraigned-pursuant to Rule 10 of the Tennessee Rules of Criminal Procedure-through the use of an electronic audio-visual device if:

(1) the judge exercises sound discretion and determines that the use of such devices will achieve the purposes of the Rules of Criminal Procedure;
(2) the judge and defendant are able to view and communicate with each other simultaneously and to be heard in the courtroom by members of the public; and
(3) the court accepts no plea except a plea of not guilty.

Tenn. R. Crim. P. 43

Amended by order filed January 8, 2019, effective October 1, 2019.

Advisory Commission Comments.

This rule is based upon but is broader than the federal rule.

Rule 43(d)(4) allows the defendant to waive his or her physical presence at the arraignment but only when the defendant’s counsel of record presents the written waiver to the trial judge. If an attorney enters such an appearance, the attorney is expected to continue representation of the defendant. This rule should not be read to allow an attorney to simply make an appearance for the limited purpose of arraignment.

Rule 43(e) permits general sessions courts to use audio-visual technology to conduct initial appearances where a plea of not guilty is entered by the defendant. Nothing in paragraph (e) [formerly(d)] prohibits the prosecutor or defense counsel from being present and heard. In addition, paragraph (e) [formerly (d)] does not apply to preliminary hearings pursuant to Rule 5.1 nor misdemeanor trials. These amendments are substantially similar to Rule 5-303 of the New Mexico Rules of Criminal Procedure and Rule 10 of Hawaii Rules of Penal Procedure and reflect the growing need for the use of technology to expedite the processing of initial criminal proceedings and reduce the cost of such processing. The purposes for the Rules, which these amendments are intended to achieve, are set forth in Rule 2: “. . .to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.”

The purpose of Rule 43(f) is to extend the discretion of the court to use electronic audio-visual technology to criminal arraignments. The Rule is intended to parallel Rule 43(e) and Rule 5 of the Tennessee Rules of Criminal Procedure permitting the use of electronic audio-visual technology in initial appearances. The Rule permits the court, in its discretion, to use electronic audio-visual technology at an arraignment if the use promotes the purposes for the Tennessee Rules of Criminal Procedure, allows the judge and defendant to communicate with and view each other simultaneously, permits discussions to be heard by the public, and does not involve the defendant’s entry of a guilty plea.

Advisory Commission Comment [2016].

Consistent with simultaneous amendments to Tenn. R. Crim. P. 5 and 5.1, the second paragraph of the original Advisory Commission Comments to Rule 43 is amended to substitute the term “preliminary hearing” for the obsolete term “preliminary examination.” No substantive amendments are made to the Rule.

Advisory Commission Comment [2019]

Rule 43(e) contemplates that contemporaneous public access to initial appearances may be achieved through a monitor placed in a room open to the public, such as the lobby of a detention facility, or by other electronic means, such as live streaming accessible to public internet users.