Rule 43 — Defendant’s Presence

Fed. R. Crim. P. 43

• Source: Federal Rules of Criminal Procedure
• Rule: 43
• TITLE IX: GENERAL PROVISIONS
• Citation: Fed. R. Crim. P. 43

Text

(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 re-
turn 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 organiza-
tion 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 ar-
raignment, plea, trial, and sentencing to occur by video tele-
conferencing or in the defendant’s absence.

(3) Conference or Hearing on a Legal Question. The proceed-
ing involves only a conference or hearing on a question of law.
(4) Sentence Correction. The proceeding involves the correc-
tion 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 volun-
tarily absent during sentencing; or
(C) when the court warns the defendant that it will re-
move the defendant from the courtroom for disruptive be-
havior, 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 ab-
sence.

Advisory Committee Notes

(As amended Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94–64, §3(35), July 31, 1975, 89 Stat. 376, eff. Dec. 1, 1975; 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.)