holding that defendant waived his right to be present at an in camera hearing when no objection was made at trial
How later courts described this case
- holding that defendant waived his right to be present at an in camera hearing when no objection was made at trial
- explaining that the Sixth Amendment’s Confrontation Clause gives the defendant the right to be present and confront all witnesses and evidence against him and that the Fifth Amendment’s Due Process Clause protects the right to be present “in some situations where the defendant is not actually confronting witnesses or evidence against him”
- recognizing that the “right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, but [the Court] ha[s] recognized that this right is protected by the Due Process clause in some situations where the defendant is not actually confronting witnesses or evidence against him.”
- explaining that due process concerns are implicated "[w]henever [the defendant's] presence has a relation, reasonably substantial, to the [fullness] of his opportunity to defend against the charge ... [and] to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only"
Written by the judges who cited it.
Later courts went against this
Declined to follow by People v. Janis, 2016 COA 69 (2016)
Further, we reject the People’s reliance on United States v. Gagnon, 470 U.S. 522 (1985), for the proposition that Janis’s failure to object to her removal from the courtroom constituted a waiver of her constitutional right to be present.
Distinguished
Distinguished by United States v. Wayne Cowan, 819 F.2d 89 (1987)
470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985), is distinguishable.
The opinion
Justice Brennan,
with whom Justice Marshall joins,
dissenting.
Last Term this Court divided sharply in a case involving an ex parte contact between a judge and juror during a criminal trial. Rushen v. Spain, 464 U. S. 114 , (1983) (per curiam). Five separate opinions issued. Two Justices urged the Court to decide the “important constitutional questions” raised by such ex parte juror contacts, see id., at 131 (Marshall, J., dissenting); id., at 123 (Stevens, J., concurring in judgment), but diverged significantly in their analyses and conclusions. Compare id., at 140 (Marshall, J., dissenting) {exparte contacts implicate three constitutional rights: “the right to counsel, . . . the ‘right to be present,’ . . . [and] the right to an impartial jury”) with id., at 125 (Stevens, J., concurring in judgment) (“[T]he mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right”). Justice Blackmun and I dissented, arguing that the case should be either given plenary consideration, id., at 122 (Brennan, J., dissenting), or not reviewed at all, id., at 150-153 (Blackmun, J., dissenting).
In the face of this controversy, the bare per curiam majority explicitly declined to consider “[w]hether the error [of ex parte contact] was of constitutional dimension,” id., at 117-118, n. 2 , and held only that any error demonstrated on the particular facts at issue was harmless. Id., at 121 .
Today, without so much as a nod to this recent reservation of the question, the Court decides that the odd facts of this case do not constitute “the sort of event which every defendant ha[s] a right personally to attend under the Fifth Amendment,” citing the lone Member of the Court who would have *531 so decided last Term. Ante, at 526-527. No guiding standard for future application is provided; the Court simply invokes its power to decide this case. Such ad hoc resolutions invariably engender more problems than solutions for lower courts.
Moreover, the parties directly affected by today’s decision have not even been permitted an opportunity to brief and argue the merits. Given the highly fact-specific nature of the case, my preference would be to deny the petition for certiorari. But if the merits are to be addressed, I would do so only upon full consideration after briefing and oral argument. Accordingly, I respectfully dissent.