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Rule 43 – Presence of the Defendant

May 14, 2021 | Criminal Procedure, Vermont

(a) Presence Required. The defendant shall be present at the arraignment, at any subsequent time at which a plea is offered, 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.
(b) Continued Presence Not Required. The further progress of the trial to and including the return of the verdict shall not be prevented whenever a defendant, initially present,

(1) in noncapital cases, voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to remain during the trial, or
(2) after being warned by the court that disruptive conduct will cause him to be removed from the courtroom persists in conduct which is so disruptive that the trial cannot proceed in an orderly manner. In such circumstances the defendant may not be gagged or shackled but shall be removed to another room in the court building, where he shall remain while the trial is in progress. A defendant so removed shall be given the opportunity of learning of the trial proceedings through his counsel at reasonable intervals. Such a defendant shall be summoned to the courtroom at appropriate intervals and on each such occasion shall be offered in open court the opportunity to return to the courtroom for the remainder of the trial upon his assurance of good behavior.
(c) Presence Not Required. A defendant need not be present in the following situations:

(1) A corporation may appear by counsel for all purposes.
(2) In prosecutions for misdemeanors, the defendant, with the consent of the court, may waive appearance under Rule 5 in writing and the court, with the written consent of the defendant and the state’s attorney, may permit arraignment, pleas of guilty, nolo contendere or not guilty, trial, and imposition of sentence in the defendant’s absence. Before a plea of not guilty may be filed and accepted by the court, the state’s attorney and the defendant shall agree upon bail and conditions of release, which shall be signed by the defendant and his or her attorney, and filed with the court simultaneously with the plea of not guilty.
(3) The defendant’s presence is not required at a conference or argument upon a question of law and is not required at any other proceeding except as provided in subdivision (a) of this rule or otherwise ordered by the court.

Vt. R. Crim. P. 43

Amended March 17, 1977, eff. May 1, 1977; 1999, No. 160 (Adj. Sess.), ยง30, eff. July 1, 2000; amended November 12, 2008, eff. Jan. 12, 2009.

Reporter’s Notes-2009 Amendment

Rule 43(c) is amended pursuant to the request of the Court in State v. Brown, 2005 VT 104, at & 15, 179 Vt. 22, 890 A.2d 79, that the Committee address the potential inconsistency between the provision of Rule 43(c)(3) that “defendant’s presence is not required at a conference or argument upon a question of law” and the language in the District Court’s computer-generated notice form, used for all hearings, that requires defendant’s personal presence. In Brown, the Court had overturned a District Court decision forfeiting defendant’s bail for nonappearance at a status conference held under Rule 12(e) to determine how to proceed in light of defendant’s incarceration on federal charges. Under the amended rule, the defendant’s presence is required only at those proceedings specified in subdivision (a). The defendant need not be present at a conference or argument on a question of law and need not be present at other proceedings except as provided in subdivision (a) unless the court otherwise orders.