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The vast majority of Western countries don't conduct criminal trials without the defendent being present. In addition the defendent is not required to actively participate in the trial - they can just refuse to testify. Giving the defendent the option to be present in order to defend themselves seems crucial for a fair trial. However, if a defendent choses to remain abroad or in hiding, why is this considered as an impediment to holding the trial? In particular in the former case, the defendent could easily instruct their lawyer on how to defend them.

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    This feels like more of a legal question to me than a political one.
    – F1Krazy
    Aug 9, 2021 at 13:22
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    @F1Krazy I'm not interested in an answer of the form "Because Paragraph 68 of this law requires it", but in the question of why the laws are what they are. And that seems to be a political, not a legal question.
    – Arno
    Aug 9, 2021 at 13:24
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    I’m voting to close this question because it belongs to Law.SE Aug 11, 2021 at 16:09
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    I think this can be seen as a question about how a civilization chooses to shape its legal system. While it may be on-topic on Law.SE as well, I don't think it's necessarily off-topic here.
    – JJJ
    Aug 11, 2021 at 16:17
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    Law.SE is for what questions. This is a why question, which belongs in Politics.SE. If this question were in Law.SE, there would be people VTC because it asks a political question. Aug 11, 2021 at 22:12

4 Answers 4

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What is the point of only conducting criminal trials once the accused has been apprehended?

It is considered unfair to the defendant to proceed without the defendant being present.

Trial in absentia

Trial in absentia is a criminal proceeding in a court of law in which the person who is subject to it is not physically present at those proceedings. In absentia is Latin for "in (the) absence". Its meaning varies by jurisdiction and legal system.

In common law legal systems, the phrase is more than a spatial description. In these systems it suggests a recognition of a violation to a defendant's right to be present in court proceedings in a criminal trial. Conviction in a trial in which a defendant is not present to answer the charges is held to be a violation of natural justice. Specifically, it violates the second principle of natural justice, audi alteram partem (hear the other party).

natural justice

Rules of fair play, originally developed by the courts of equity to control the decisions of inferior courts and then gradually extended (particularly in the 20th century) to apply equally to the decisions of administrative and domestic tribunals and of any authority exercising an administrative power that affects a person's status, rights, or liabilities. Any decision reached in contravention of natural justice is void as * ultra vires. There are two principal rules.

...

The second rule is known as audi alteram partem: hear the other side. It states that a decision cannot stand unless the person directly affected by it was given a fair opportunity both to state his case and to know and answer the other side's case .... The rules of natural justice provide a minimum standard of procedural fairness and the exact requirements will vary depending on the context.

If the accused is not present during the trial, they have no direct means for rebutting testimony or, in particular, evidence against them. (For example, could OJ Simpson have tried on the gloves used as evidence, were he not present at trial?)

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    This is not addressing why it isn't good enough to give the defendant the opportunity to be present.
    – Arno
    Aug 9, 2021 at 14:18
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    @Arno - As the Wikipedia article notes, some jurisdictions allow trial in absentia, others don't. Even within the US, some states allow it, others don't. In some cases, a defendant may chose to be absent, once the trial begins. IOW, "why it isn't good enough" in one jurisdiction, but "is good enough" in another, requires an opinion, or a statement for each jurisdiction.
    – Rick Smith
    Aug 9, 2021 at 14:48
  • @Arno How is the defendant supposed to defend themselves if they are not present?
    – Joe W
    Aug 9, 2021 at 15:05
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    they are in very much the same position as if they are present at the trial, and chose to remain silent. - not really. A defendant who is present can at any time decide to break their silence. They also have the option to protest when they believe that their defender does not defended them properly. Someone tried in absentia does not have those options.
    – Philipp
    Aug 9, 2021 at 15:21
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    @Arno Just because a defendant remains silent doesn't mean they are not defending themselves with a defense lawyer. They also don't get the option of not going to the trial if they have been apprehended so them choosing to not go isn't an consideration.
    – Joe W
    Aug 9, 2021 at 15:25
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Mary has been killed and her husband Vladimir has fled to Belarus (Vlad is a dual national). A warrant is issued for his arrest. If Vladimir comes to the USA he will be detained on entry and go straight to prison. There's no extradition treaty between Belarus and the USA.

So Vladimir stays in Belarus.

There is forensic evidence that can link Vladimir with the crime and the court declares its intention to begin the trial in absentia.

Vladimir stays in Belarus.

The court appoints a defence team, and Vladimir avoids all contact with them. The trial proceeds and the defence goes through the motions, but they don't have of a case to make. The jury convict and the judge passes a sentence of 15 years in prison.

Vladimir stays in Belarus.

What was the point of the trial? Justice hasn't been served because Vladimir is still at liberty. He can't return to the USA, but he couldn't return to the USA anyway. The purpose of the court is to deliver justice, not to deliver convictions. Trials in absentia can only give the latter, not the former.

Now in a comment you imagine an alternate narrative. Vlad is attempting to flee to Belarus, but is detained in Germany. There is an extradtition treaty, but Germany asks for a guarantee that execution won't be sought. (Many European countries consider the death penalty to be a gross human right abuse and won't extradite any one to any country where there is the possibility of them facing it). Germany under its extraction laws must ensure that any trial is as fair as a trial in Germany.

If Vladamir is convicted in absentia, that removes the risk of capital punishment. But Vlad's lawyers in Germany now argue that he has no right of a fair trial. They claim he would be very convincing to a Jury, and so the absentia trial was unfair. So the extradition request is denied. Again justice is not served.

This doesn't mean that it is impossible to craft a narrative in which an absentia trial is the best way of persuing justice, but such a situation would be contrived.

It's not good enough merely to give the defendant the opportunity to be present. For justice to be possible, the defendant has to actually be present.

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  • Let's say instead Vlad gets arrested by the German authorities in Frankfurt on his way to Belarus. Getting him extradited to the US would not be possible as long as the death penalty is on the table. Once he gets his 15 year sentence, extraditing him becomes much easier.
    – Arno
    Aug 9, 2021 at 17:05
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    You can take death penalty off the table without holding a trial in absentia. That is using a sledgehammer to crack a nut! Anyway the Germans say "we don't recognise the justice in the absentia trial because Vlad hasn't been able to represent himself, so we won't extradite under these conditions. And then you are stuck.
    – James K
    Aug 9, 2021 at 17:32
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    No doubt you can contrive some situation in which a trial in absentia would be the best way to serve justice... but contrive would be the right word.
    – James K
    Aug 9, 2021 at 17:34
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    Critically, suppose that after being convicted in absentia someone named Vlad is arrested. Some due process is necessary at that point to determine if the person arrested named Vlad and the person convicted named Vlad are the same person. The issue is not hypothetical and has plagued the terrorist watch list in the U.S. in which people are placed on the list in ex parte, in absentia proceedings which are often erroneous and cause serious harm to the affected misidentified person who may not even realize why they keep getting bumped off airlines for a while.
    – ohwilleke
    Aug 11, 2021 at 0:36
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Having the defendant present in the courtroom guarantees that the defendant is aware of what is happening, and that if the defendant wants to say something the defendant has a chance to do so. If the defendant is in another country, perhaps he's not being aware of what evidence is being presented and what is being said (possibly lies) about him. How do we know that defendant is really choosing to remain silent? Maybe one of the lawyers is lying to us.

In your example where the defendant is in hiding overseas, perhaps the reason he is in hiding is that he believes he won't receive a fair trial. Holding the trial without him present just proves his point. Whether he hid or not, he still should get a fair trial.

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At least in common law countries, the question of personal jurisdiction is key to enrolling a defendant in the legal process. Without the presence of an individual in the territorial jurisdiction of a court, a trial cannot commence. In the US, this protection is guaranteed under the Fifth and Fourteenth Amendments to the constitution, under what is called the due process clause. Requirements for Due Process date back to 1215 and the Magna Carta when King John of England promised that people would not be stripped of basic human rights. That promise now sets standards for due process in numerous countries.

In an interesting application of logic, a defendant may make a limited argument claiming the court lacks jurisdiction without by that act submitting themself to the court's jurisdiction. A defendant would typically do this through an attorney who makes a "limited appearance" in court. But if any other court arguments are made on behalf of a defendant, the defendant has made themselves available to the court's jurisdiction.

There is also the matter of subject-matter jurisdiction, but that seems less applicable to your question.

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  • Long arm jurisdiction is a concept applicable to civil litigation, in which trials and judgments entered in absentia are allowed and common. Criminal litigation does not follow the same principles. Also, while this answer looks at technical legal justifications, the question is look for the "why" behind the rules that are in existence.
    – ohwilleke
    Aug 11, 2021 at 0:39
  • Thanks, @ohwilleke, I updated paragraph 1 to reference due process and the manga carta and removed long-arm jurisdiction. Aug 11, 2021 at 15:26

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