Defendant’s Presence

U.S Code last checked for updates: Jan 30, 2025

Rule 43.

(a)

When Required.

Unless this rule, Rule 5, or Rule 10 provides otherwise, the defendant must be present at:

(1)

the initial appearance, the initial arraignment, and the plea;

(2)

every trial stage, including jury impanelment and the return of the verdict; and

(3)

sentencing.

(b)

When Not Required.

A defendant need not be present under any of the following circumstances:

(1)

Organizational Defendant. The defendant is an organization represented by counsel who is present.

(2)

Misdemeanor Offense. The offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant’s written consent, the court permits arraignment, plea, trial, and sentencing to occur by video teleconferencing or in the defendant’s absence.

(3)

Conference or Hearing on a Legal Question. The proceeding involves only a conference or hearing on a question of law.

(4)

Sentence Correction. The proceeding involves the correction or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c).

(c)

Waiving Continued Presence.

(1)

In General. A defendant who was initially present at trial, or who had pleaded guilty or nolo contendere, waives the right to be present under the following circumstances:

(A)

when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial;

(B)

in a noncapital case, when the defendant is voluntarily absent during sentencing; or

(C)

when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom.

(2)

Waiver’s Effect. If the defendant waives the right to be present, the trial may proceed to completion, including the verdict’s return and sentencing, during the defendant’s absence.

(As amended Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94–64, § 3(35), July 31, 1975, 89 Stat. 376; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 26, 2011, eff. Dec. 1, 2011.)