Guilty In Absentia: What Does It Mean?

Guilty in absentia means that a person was judged guilty (by judge or jury) without the defendant being physically present in court, or having participated in the proceeding.

Can A Defendant Be Convicted In Absentia?


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Yes, but it doesn’t happen all that often.

It is generally pretty rare for a defendant to be prosecuted and adjudged by a judge or jury without the defendant’s presence or participation.

The ability of the defendant to appear personally and defend him or herself adequately is a closely guarded right in the United States.

In most cases, if a defendant fails to appear at a court appearance, the purpose of the court proceeding would be postponed until such time as the defendant could be found or otherwise made to appear (arrested on a warrant and brought to court).

The defendant is brought to court to appear even in situations where the defendant does not want to appear or participate at all (usually when the end result sought is jail/confinement).

Let’s say a defendant has been charged but doesn’t appear for his first appearance/arraignment.

It is doubtful that a proceeding would be performed completely in absentia, without the defendant appearing at any court appearance whatsoever, including the arraignment.

The arraignment, for example, is an important component of the prosecution process.

This is when the defendant is officially served with (and notified) of the charges registered against him.

Without this “arraignment” a defendant could potentially appeal and seek the over turning of his conviction on the basis that the government failed to notify him of the charges.

For example, the Federal Rules of Criminal Procedure specifically state that a Defendant must be present at the initial appearance, the initial arraignment, and the plea. (source)

When Can A Defendant Be Convicted In Absentia?

Usually, the defendant can only be convicted in absentia when there is statutory authority to proceed without the defendant’s presence.

The Federal Rules Of Criminal Procedure (Rule 43) allow a non-capital trial to proceed against a defendant to conclusion if the defendant voluntarily absents himself, or commits disruptive behavior during the proceeding resulting in his removal from the courtroom. (source)

States also have rules that allow a trial to proceed against a defendant in their absence.

For example, Oregon’s ORS 136.040 states that a trial may be had against a defendant is the charge is only a misdemeanor so long as the defendant appears through counsel.

It also states that a trial for a misdemeanor may be had without the defendant and defendant’s counsel if the misdemeanor is treated as a violation.

In Florida, the statutes mirror the federal rules as it relates to the defendant’s voluntary absence from the trial by choice or by disruptive behavior. (source)

What Happens If You Fail To Appear For Court?

If you fail to appear for a scheduled court date, what happens to you depends on the court, the case, and the status of your case.

For example, if you failed to appear for your first appearance/initial arraignment for a criminal case, the hearing would be postponed and a warrant for your arrest might be issued in order to compel your appearance.

If you failed to appear for an appearance on a traffic ticket, the court would likely just uphold the ticket and assess a fine against you.

(A traffic ticket is usually not a criminal matter anyway, so there isn’t a matter of guilt or innocence.)

If you failed to appear for a status hearing, the hearing itself would likely be postponed, and a warrant could be issued to compel your appearance.

The prosecutor might also charge you with “failing to appear” which could be a misdemeanor, or could be a felony, depending upon where you are and the case you failed to appear on.

If you fail to appear for your scheduled criminal trial, in most cases, the trial would probably be postponed (with a warrant, and perhaps an additional FTA-failure to appear charge).

If you fail to appear for a criminal trial that has already begun, presuming the jurisdiction had a statute allowing it as most do, the trial could move forward to completion.

However, the court might not proceed to sentencing until the defendant could be located and returned to court.

Does “Guilty In Absentia” Work In Civil Cases?

No, there is no such thing as being found “guilty in absentia” in a civil case.

For example, in a divorce or custody case, there is not “guilty” or innocence.

If you fail to appear for a civil hearing that you were properly noticed for, the proceeding would either proceed without you, or the judge could just order that the other party be granted whatever it sought.

The court would be much less likely to postpone the case to wait for you, and there would no likely be any warrants issued to compel your appearance.

In isolated instances, the court could find a party “in contempt of court” for failing to appear for a civil case, especially if the court had ordered a party’s appearance at a specific hearing.

But this happens rarely.

Wrap Up

Does it make it a better justice system when all the judges are former prosecutors? That’s another question entirely.

Want to learn more about your criminal justice system?

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