Wis JI-Criminal SM-23

CONTENTS

Scope.......................................................................................................................2

I. A defendant’s right to be present at trial....................................................2

A. The constitutional right.........................................................................2

B. The statutory right................................................................................2

II. Waiver or forfeiture of the right to be present...........................................2

A. Waiver of the right at misdemeanor trials............................................3

B. Waiver of the right at felony trials.......................................................3

1. Express waiver................................................................................3

2. Forfeiture by voluntary absence......................................................3

3. Waiver by conduct: refusal to participate.......................................4

4. Waiver by conduct: disruptive conduct..........................................5

III. Responsibility of the Court........................................................................5

A. Express waiver......................................................................................5

B. Forfeiture by voluntarily absence.........................................................6

C. Waiver by conduct: refusal to participate.............................................6

D. Waiver by conduct: disruptive conduct................................................6

1. The court should give warnings about possible removal................7

2. Physical restraint is an option.........................................................7

3. A disruptive defendant can be found in contempt..........................7

4. Possible to remove from the courtroom..........................................8

5. After removal of a pro se defendant, consider whether to appoint

counsel............................................................................................8

a. Requirements from Klessig and Imani................................8

b. Standby Counsel and the right to self-representation........10

6. The court can conduct trial in absentia.........................................10

Scope

This Special Material provides guidance for trial courts on proceeding through a trial

without the defendant’s presence. It offers direction for situations where a defendant, either

expressly or through conduct, waives their right to participate in the trial, including cases

where the defendant absconds after the jury is selected.

I. A defendant’s right to be present at trial

A defendant has both a constitutional and a statutory right to be present at trial. State

v. Anderson, 2006 WI 77, ¶37, 291 Wis.2d 673, 717 N.W.2d 74.

A. The constitutional right

A defendant’s constitutional right to be present at trial stems from the due process right

to be heard and confront witnesses. Anderson, 291 Wis.2d 673, ¶38. These rights are found

in the Sixth Amendment and Fourteenth Amendment to the United States Constitution and

Article I, Section 7 of the Wisconsin Constitution. Id. The Confrontation Clause and the

Fourteenth Amendment grant an accused the right to be present in the courtroom at every

stage of their trial. State v. Haynes, 118 Wis.2d 21, 25, 345 N.W.2d 892 (Ct. App. 1984)

citing Illinois v. Allen, 397 U.S. 337, 338 (1970).

The constitutional right to be present at trial “includes the right to be present at

proceedings before trial at which important steps in a criminal prosecution are often taken.”

State v. Alexander, 2013 WI 70, ¶22, 349 Wis.2d 327, 833 N.W.2d 126. Although

conferences during trial should “rarely” be held without the defendant present, the

defendant’s presence is only constitutionally required to the extent that a fair and just

hearing would be thwarted by their absence. State v. Alexander, 2013 WI 70, ¶¶22-25, 349

Wis.2d 327, 833 N.W.2d 126. When the court communicates with the jury, the defendant’s

attorney must be present. Id. at ¶25.

B. The statutory right

The defendant’s statutory right to be present at trial is codified in Wis. Stat. § 971.04.1

II. Waiver or forfeiture of the right to be present

Forfeiture is “the failure to make a timely assertion of a right”, whereas, “waiver is the

intentional relinquishment or abandonment of a known right.” State v. Soto, 2012 WI 93,

¶35, 343 Wis. 2d 43, 817 N.W.2d 848. Mere inaction is not sufficient to demonstrate the

defendant intended to forego the right. Id. at ¶37. Instead, there must be “some affirmative

relinquishment” from the defendant. Id. A waiver of the right to be present can be express

or by conduct.

One exception is Wis. Stat. § 971.04(3), where the defendant can forfeit the right to be

present if they voluntarily absent themselves and the defendant was present at the

beginning of trial. The statute does not mention any requirement that the action be taken

knowingly, therefore, it “sets forth a way that a defendant can forfeit the right to be

present—by leaving after the jury has been sworn.” State v. Washington, 2018 WI 3, ¶31,

379 Wis. 2d 58, 905 N.W.2d 380.

A. Waiver of the right at misdemeanor trials

A defendant can waive the right to be present for an entire trial when the crime charged

is a misdemeanor. If a defendant is charged with a misdemeanor, the defendant may

authorize their attorney to act on their behalf. Wis. Stat. § 971.04(2). The defendant must

first seek leave of the court. Id. For more information about instructing the jury about this

waiver see Wis. JI-Criminal 380A (2024).

B. Waiver or forfeiture of the right at felony trials

A defendant can waive the right to be present throughout his or her trial by express

waiver, waiver by refusal to participate in trial, waiver by disruptive conduct, and forfeiture

by voluntary absence.

1. By express waiver

A defendant can waive their presence at any stage of the trial by expressly waiving the

right on the record. State v. Edmunds, 229 Wis.2d 67, 83, 598 N.W.2d 290 (Ct. App. 1999).

2. Forfeiture by voluntary absence – s. 971.04(3)

A defendant may choose to be voluntarily absent from trial if after the trial commences,

they fail to appear without leave of the court during the trial or before the verdict of the

jury has been returned into court. Wis. Stat. § 971.04(3). Under those circumstances, the

trial or return of the verdict shall not be postponed or delayed. Id. The trial and return of

verdict shall proceed as though the defendant were present in court at all times. Id.

Subsection (3) is “designed to prevent a defendant from stopping a trial which has

commenced by absenting himself.” State v. Washington, 2018 WI 3, ¶33, 379 Wis. 2d 58,

905 N.W.2d 380.

The voluntary absence provision under Wis. Stat. § 971.04(3), only applies when the

defendant was present at the beginning of trial. State v. Koopmans, 210 Wis.2d 670, 678,

563 N.W.2d 528 (1997).2 The trial does not begin until after the jury is selected. State v.

Dwyer, 181 Wis.2d 826, 836–37, 512 N.W.2d 233 (Ct. App. 1994). As long as the

defendant is present when the jury is selected and sworn, then the voluntary absence

provision may apply. State v. Miller, 197 Wis.2d 518, 521, 541 N.W.2d 153 (Ct. App.

1995). Thus, a trial cannot commence without the defendant if the defendant is absent

before the jury is selected.

Other jurisdictions have examined what constitutes a voluntary absence. A defendant

who is delayed because of weather-related traffic is not voluntarily absenting themselves.

United States v. Camacho, 955 F.2d 950, 955 (4th Cir. 1992). When a defendant has car

trouble and calls the court to advise of the car trouble, that is not a voluntary absence.

United States v. Mackey, 915 F.2d 69, 73 (2d Cir. 1990). A medical condition, illness, or

injury can be enough to demonstrate that the defendant was voluntarily absent from trial.

See People v. Stephenson, 165 P.3d 860, 869 (Colo. App. 2007); State v. Finnegan, 784

N.W.2d 243, 250 (Minn. 2010). However, “determining whether a defendant is ‘voluntarily

absent’ in such a case requires a fact-specific inquiry into the type of medical condition

and the circumstances surrounding his or her absence, including an inquiry into the

defendant's conduct and statements.” Stephenson, 165 P.3d at 870.

3. Waiver by conduct: refusal to participate

While an explicit waiver of the right to be present is preferred, one is not required. A

defendant may waive the right to be present by refusing to attend after being informed of

the right to be present. State v. Divanovic, 200 Wis.2d 210, 222, 546 N.W.2d 501 (Ct. App.

1996). The courts examine the waiver on a case-by-case basis. Id.

This waiver does not apply to those who flee or fail to come to court after their trial

begins. Instead, waiver occurs when a defendant refuses to come to court but can be

located. For example, when a defendant is present at the beginning of trial, and then he or

she refuses to leave their jail cell during the trial. Under these circumstances, the voluntary

absence and forfeiture rules are inapplicable.

Although the law requires waiver of the right to be present, when a defendant chooses

not to attend the trial proceedings, a defendant’s failure to assert the right to be present can

constitute an adequate waiver and an express waiver on the record is not essential.

Divanovic, 200 Wis.2d at 220.

4. Waiver by conduct: disruptive conduct

A defendant can waive their right to be present at trial by misconduct. Allen, 397 U.S.

at 343. “[A] defendant can lose his right to be present at trial if, after he has been warned

by the judge that he will be removed if he continues his disruptive behavior, he nevertheless

insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the

court that his trial cannot be carried on with him in the courtroom.” Id. Trial judges who

are “confronted with disruptive, contumacious, stubbornly defiant defendants must be

given sufficient discretion to meet the circumstances of each case” and “[n]o one formula

for maintaining the appropriate courtroom atmosphere will be best in all situations.” Id.

Examples of disruptive conduct can be extreme. In United States v. Jennings, the

defendant hit his counsel in the side of the head with a closed fist causing his attorney to

fall to the ground. 855 F. Supp 1427, 1432 (M.D. Pa. 1994). Jennings was removed from

the courtroom after the assault and after the court warned him that he would be removed if

he continued to be disruptive. Id. at 1445. The court also allowed him to listen to the

proceedings and continued to check in about whether he wanted to participate, and

Jennings repeatedly refused. Id.

Other jurisdictions have found defendants to have waived the right be present by acting

disruptively at prior hearings. In United States v. Daniels, the defendant had been

disruptive at prior hearings and at the day of trial. The court explained that he had a

constitutional right to be present during trial, but also explained he could surrender that

right by his conduct. When the defendant would not agree to not be disruptive, the court

barred him, but allowed for him to return if he agreed to cooperate. 803 F.3d 335, 347–48

(7th Cir. 2015). Even after the warnings the defendant would not agree to not be disruptive,

and the court barred him, but allowed for him to return if he agreed to cooperate. Id. In

United States v. Benabe, 654 F.3d 753, 766 (7th Cir. 2011), the defendants were polite, but

had frequent outbursts. They described themselves as “sovereign citizens,” “secured-party

creditors,” and “flesh-and-blood human beings” who were outside the jurisdiction of the

court. Id.

III. Responsibility of the court

A. Express waiver

The best practice is for the circuit court to engage the defendant in a colloquy. State v.

Washington 379 Wis.2d 57, ¶52. A formal colloquy is by far the best practice to ensure

that a defendant is knowingly, intelligently, and voluntarily waiving a right. Id.

When a defendant chooses to be absent from their trial, a formal on-the-record waiver

is favored but not required. Divanovic, 200 Wis.2d 210. When the defendant is

manipulative, disruptive, physically aggressive, the circuit court need not place any court

staff in danger in conducting an in person waiver colloquy. Washington, 379 Wis.2d 57

¶57.

B. Forfeiture by voluntarily absence

If the defendant, who is not exempted from attending, absconds during the trial without

the court’s permission, the trial can proceed without them. Wis. Stat. § 971.04(3).

A recess might be required to determine why the defendant was absent at a stage of

the trial. State v. Morgen, 907 P.2d 116 (Idaho Ct. App. 1995). There is no bright-line rule

on the length of the recess required. But the court should make sufficient inquiry into

whether the defendant’s disappearance was voluntary. State v. Kropp, 489 P.3d 859, 861–

62 (Idaho Ct. App. 2021).

When a defendant absconds during trial without the court’s permission, the court

should examine and consider giving the instruction Wis. JI-Criminal 380C. This instruction

is designed for cases in which the defendant absconds during trial. The decision to use this

instruction is within the trial court’s discretion. Because absconding during the trial may

show consciousness of guilt, Wis. JI-Criminal 172 may also be appropriate.

C. Waiver by conduct: refusal to participate

When a defendant refuses to participate by refusing to come to court after the trial

begins, the circuit court should examine and consider giving the instruction Wis. JI-Criminal 380B. This instruction is designed for cases in which an in-custody defendant

refuses to appear at trial. The use of this instruction is within the trial court’s discretion.

When it would be unsafe to force the defendant into court to secure a waiver of the

right to appear, the defendant’s refusal to return when asked can constitute waiver. State v.

Washington, 2017 WI App 6, ¶15, 373 Wis.2d 214, 890 N.W.2d 592. In such a case, the

trial court should periodically ask the defendant whether they want to reclaim their right to

be present. Id.

D. Waiver by conduct: disruptive conduct

Sometimes a defendant will be disruptive to a point where the court concludes that the

conduct constitutes a waiver of the right to be present. See Allen, 397 U.S. at 346.

1. The court should give warnings about possible removal

A court should warn a disruptive defendant that similar conduct will result in removal.

Divanovic, 200 Wis.2d at 221. The court can restore the right to be present if the defendant

agrees to end their disruptive behavior. Washington, 379 Wis.2d 58, ¶41. A court should

periodically check to see if the defendant wants to come back to the courtroom. Id. ¶42.

2. Physical restraint is an option

A court may subject a defendant to physical restraint during trial, if the court finds that

restraint was “reasonably necessary to maintain order.” State v. Champlain, 2008 WI App

5, ¶22, 307 Wis.2d 232, 744 N.W.2d 889. The trial court has discretion to decide whether

restraint is necessary. State v. Miller, 2011 WI App 34, ¶5, 331 Wis.2d 732, 797 N.W.2d

528. When possible, restraints should not be visible to the jury. See Deck v. Missouri, 544

U.S. 622, 630 (2005).

3. A disruptive defendant can be found in contempt.3

Another available course of action for a disruptive defendant is contempt. The court

has the power to punish by fine, imprisonment, or other appropriate order for any

misconduct which interferes with a court proceeding or conveys disrespect for the court.

Wis. Stat. §§ 785.01, 785.04.

The exercise of the contempt power is largely in the discretion of the court. Bihlmire

v. Hahn, 31 Wis.2d 537, 143 N.W.2d 433 (1966). The power should be used sparingly and

never capriciously or arbitrarily. State ex rel. Schmidt v. Gehrz, 178 Wis. 130, 189 N.W.

461 (1922).

The court can initiate summary contempt actions for acts that occur in the presence of

the court when four requirements are met.4 Wis. Stat. § 785.03(2).

1. The misconduct must be committed in the actual presence of the court;

2. The sanction must be imposed to preserve order in the court;

3. The sanction must be imposed to protect the authority and dignity of the court;

and

4. The sanction must be imposed immediately following contempt.

Wis. Stat. § 785.03(2).

When the four requirements are met, the court must make specific findings. See

Oliveto v. Crawford Cty. Circuit Court, 194 Wis.2d 418, 436, 533 N.W.2d 819 (1995). The

court shall make a statement that the judge decided to hold the person in contempt. Id. It

should cite the factual basis for the holding. Id. The court must grant the person the right

of allocution before imposition of a sanction. Id. After allocution, the court may vacate the

contempt order or give a more lenient sanction. See Valadez v. Aprahamian, 2022 WL

301655, ¶29 (unpublished opinion).

The court should impose a sentence on the record. Wis. Stat. § 785.04(2)(b). The

alternative sanctions are a fine not to exceed $500, confinement in county jail for up to 30

days, or both. Id.

4. Possible removal from the courtroom

If a defendant is disruptive and will not change his or her behavior, the court can

remove the defendant from trial. Allen, 397 U.S. at 346. A trial court has discretion whether

to remove a defendant from trial for disruptive behavior. Id. at 343.

Allowing an audio and video hookup, is an option to deal with a defendant who has

been removed from trial. State v. Vaughn, 2012 WI App 129, ¶10, 344 Wis.2d 764, 823

N.W.2d 543. In Vaughn, the defendant refused to watch the video from the remote location.

Id. ¶12. The court of appeals did not impose a requirement that the court offer the defendant

an alternative way to participate in the trial.

5. After removal of a pro se defendant, consider whether to appoint counsel5

While it is best practice to require representation by counsel, there is not a

constitutional requirement for the trial court to appoint counsel when it removes a pro se

defendant from the courtroom. State v. Lacey, 431 P.3d 400, 406 (Or. 2018). A court should

only continue a trial without the defendant and without a legal representative for the

defendant if the defendant has been given specific warnings that the trial would continue

without any representation if the defendant continued to be disruptive. Id.

Note that the court cannot appoint a State Public Defender staff attorney as standby

counsel pursuant to Wis. Admin PD 5.03.

a. Requirements from Klessig and Imani

To permit a defendant to proceed pro se, a court must determine that they (1) have

made a knowing, intelligent and voluntary waiver of the right to counsel; and (2) are

competent to represent himself or herself. State v. Imani, 201 WI 66, ¶21, 326 Wis.2d 179,

786 N.W.2d 40.

To meet the former of these two requirements, courts typically conduct a colloquy with

the defendant to ascertain that their waiver of the right to counsel is valid. State v. Klessig,

211 Wis. 2d 194, 206, 564 N.W.2d 716. This colloquy is intended to ensure that the

defendant: “(1) made a deliberate choice to proceed without counsel, (2) was aware of the

difficulties and disadvantages of self-representation, (3) was aware of the seriousness of

the charge or charges against him, and (4) was aware of the general range of penalties that

could have been imposed on him.” Id. When the court fails to conduct an in-court colloquy,

the proper remedy is a retrospective evidentiary hearing to determine whether defendant’s

waiver of counsel was knowing, intelligent and voluntary. Id. at 207 (citing Keller v. State,

75 Wis. 2d 502, 511-12, 249 N.W.2d 773 (1977)).

A presumption exists of non-waiver of the right to counsel and may be overcome upon

an affirmative showing that the defendant knowingly, intelligently and voluntarily waived

the right to counsel. Imani, 326 Wis. 2d 179, ¶ 22.

The supreme court has summarized the standards relevant to a circuit court’s

determination of a defendant’s competence to proceed pro se, and appellate review of that

determination, as follows:

Whether a defendant is competent to proceed pro se is uniquely a question

for the trial court to determine. It is the trial judge who is in the best position to

observe the defendant, his conduct and his demeanor and to evaluate his ability

to present at least a meaningful defense. In determining whether a defendant is

competent to proceed pro se, the circuit court may consider the defendant’s

education, literacy, language fluency, and any physical or psychological

disability which may significantly affect his ability to present a defense. A

defendant of average ability and intelligence may still be adjudged competent

for self-representation, and accordingly, a defendant's timely and proper request

should be denied only where the circuit court can identify a specific problem or

disability that may prevent the defendant from providing a meaningful defense.

While the determination of competency rests significantly upon the circuit

court’s judgment and experience, the determination must appear in the record.

Our review is limited to whether the circuit court’s determination is totally

unsupported by the facts apparent in the record.

Imani, 326 Wis.2d 179, ¶37 (internal citations and quotation marks omitted).

b. Standby counsel and the right to self-representation

The Supreme Court held that “a defendant in a state criminal trial has a constitutional

right to proceed without counsel when he voluntarily and intelligently elects to do so.”

Faretta v. California, 422 U.S. 806, 807 (1975). The appointment of standby counsel, even

over a pro se defendant’s objection, does not violate the Faretta right to self-representation.

McKaskle v. Wiggins, 465 U.S. 168, 176-77 (1984). Of course, “[p]articipation by counsel

with a pro se defendant’s express approval is. . . constitutionally unobjectionable.” Id. at

182.

The McKaskle court did not adopt per se rules limiting the scope of the standby

counsel’s role or the types of tasks he or she may perform. Rather, it allowed as a general

matter counsel’s unsolicited participation in the case so long as (1) the defendant maintains

“actual control over the case he [or she] chooses to present to the jury”; and (2) counsel’s

participation does not “destroy the jury’s perception that the defendant is representing

himself.” Id. at 178 (footnote omitted). The court explained that the first of these two

limitations does not apply to participation by standby counsel outside the presence of the

jury. Id. at 179. “[T]he appearance of a pro se defendant’s self-representation will not be

unacceptably undermined by counsel’s participation outside the presence of the jury.” Id.

“The role of standby counsel can vary over a wide spectrum, ranging from a warm

body sitting beside the defendant throughout trial to participation that is tantamount to that

of defense counsel.” State v. Campbell, 2006 WI 99, ¶66, 294 Wis.2d 100, 718 N.W.2d

649. “Although. . . the ‘chief purpose’ of standby counsel in most cases is to ‘serve the

interests of the trial court,’ . . . this is not always the case.” Id. ¶76 (internal citation

omitted). In Campbell, the defendant welcomed standby counsel and “heavily utilize[ed]

him throughout the proceedings,” effectively converting standby counsel into his co-counsel. Id. Likewise, in McKaskle, standby counsel was deeply involved in the defense,

“dictat[ing] proposed strategies into the record” and “register[ing] objections to the

prosecution’s testimony,” among other things. McKaskle, 465 U.S. at 180 (footnote

omitted).

6. The court can conduct trial in absentia.

If a court removes a disruptive defendant from the trial, the trial may continue. The

court may also determine that the defendant has forfeited his or her right to testify through

their conduct. State v. Anthony, 2015 WI 20, ¶ 56, 361 Wis.2d 116, 860 N.W.2d 10. The

court extended the logic of exclusion from the trial for misconduct, to forfeiture of the right

to testify. Id. ¶59.

When a defendant’s misconduct rises to the level of warranting their removal from the

courtroom, the Committee recommends that the trial court conduct a formal, on-the-record

admonition detailing the basis of the removal. When a court determines that a defendant

has lost the right to be present at trial through forfeiture by misconduct, the court should

examine and consider giving the instruction Wis. JI-Criminal 380D. Whether to use this

instruction is within the trial court’s discretion.