When Can a Defendant Be Tried in Absentia?

Cosmetics heir Andrew Luster, who skipped out on a rape trial in January, was captured yesterday in Puerto Vallarta, Mexico. He had been convicted in absentia and sentenced to 124 years in prison. Under what circumstances can a person be tried in absentia?

The typical scenario involves a defendant who flees midtrial, fully aware that he or she is supposed to show up in court each and every day. Rule 43 of the Federal Rules of Criminal Procedure clearly states that a defendant waives the right to be present if he’s “voluntarily absent after the trial has commenced.” (Most state rules on trials in absentia are similarly worded.) A bail jumper like Luster, who forfeited his $1 million bond by walking out of a California courthouse during a recess, certainly fits into that category.

Trials in absentia are exceedingly rare—most judges and attorneys will never be involved with one. The procedure doesn’t jibe with the notion of due process, especially the constitutional right of the accused to confront witnesses. So, judges are careful to make sure that a defendant’s absence is truly voluntary, rather than the result of foul play, ill health, or lack of notice, lest they create grounds for an appeal.

If a defendant takes off during the pretrial phase, however, he may be able to elude an in absentia conviction. In the 1993 case Crosby v. United States, the Supreme Court ruled that federal law “prohibits the trial in absentia of a defendant who is not present at the beginning of trial.” This despite the fact that Crosby, accused of mail fraud in Minnesota, appeared before a federal magistrate to enter a “not guilty” plea before escaping to Florida. As for a fugitive who has never been in custody, such as Osama Bin Laden, odds are slim to none that any U.S. court would permit his trial in absentia, regardless of the strength of the evidence.

Nor can globe-trotting criminals be tried in absentia by the International Criminal Court. Article 63 of the Rome Statute, which governs the ICC’s operation, simply states, “The accused shall be present during the trial.” Of course, it’s doubtful that anyone high-profile enough to merit the ICC’s attention would be afforded the chance to skip out on bail.

Next question?

Explainer thanks James Strazzella of the TempleUniversitySchool of Law.