Defendant’s Presence Generally
A defendant has the right to be present at every stage of the
trial. The right is both constitutional and statutory. The
constitutional right is based on the Fifth Amendment due process
clause and the Sixth Amendment right to confrontation. Under the
Constitution, the defendant’s presence “is a condition of due
process to the extent that a fair and just hearing would be thwarted
by his absence, and to that extent only.” United States v. Gagnon,
470 U.S. 522, 526 (1985) (quoting Snyder v. Massachusetts, 291
U.S. 97, 108 (1934)). Thus, the Constitution does not guarantee
that a criminal defendant be present at all stages of the trial but
rather only at “critical stage[s].” La Crosse v. Kernan, 244 F.3d
702, 707-08 (9th Cir. 2001).

In Faretta v. California, 422 U.S. 806, 819 n.15 (1975), the
Supreme Court stated that a defendant has the “right to be present
at all stages of the trial where his absence might frustrate the
fairness of the proceedings.” See also Fisher v. Roe, 263 F.3d 906,
914-15 (9th Cir. 2001) (citing Snyder, 291 U.S. at 105-06)
(defendant has a right to be present if his presence “has a relation,
reasonably substantial, to the fullness of his opportunity to defend
against the charge”).

Rule 43(b)(3), Fed. R. Crim. P., provides in part that a
defendant need not be present where the “proceeding involves only
a conference or hearing on a question of law.” Like the Fifth Amendment due process
clause and the Sixth Amendment right to confrontation.

SOURCE: A Manual on Jury Trial Procedures
Prepared by the Jury Instructions Committee
of the Ninth Circuit

Members:
Judge George H. King, Chair
Judge Roger L. Hunt
Judge Lawrence K. Karlton
Judge A. Howard Matz
Judge Jeffrey T. Miller
Judge Marsha J. Pechman
Magistrate Judge John Jelderks

A question of a man's incompetency is "a question of fact, not law"

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