Defendants who are facing criminal charges in the United States have a constitutional right to be present at trial. This right can be voluntarily waived; for such a waiver to be valid, the defendant ...must be competent to waive the right to be present at trial. There have been several cases where a defendant is absent from trial because of a suicide attempt, and in these cases the courts must determine whether it is necessary to pause the criminal trial to allow for a competence hearing to take place. The U.S. Supreme Court offered guidance on this matter in its ruling in
; however, the Court did not clearly define the threshold for requiring a competence hearing when defendants attempt suicide during trial. Subsequent judicial rulings have provided insights into how courts might proceed when a criminal defendant is absent from trial following a suicide attempt. This topic has relevance to forensic psychiatry, as forensic psychiatrists may be called upon to participate in evaluations of adjudicative competence in these scenarios.
The recent decision of the Court of Justice of the European Union in HYA and Others has a significant impact on the use of untested witness statements in criminal proceedings. The case concerned the ...right to examine witnesses, which is protected under 6(3)(d) of the European Convention on Human Rights. The CJEU established a three-step test to determine whether the use of untested evidence violates the right to a fair trial and ruled out the use of ‘sole or decisive’ untested evidence in criminal proceedings. The Court also held that the right to examine witnesses is a fundamental right in criminal proceedings and falls within the scope of Article 8(1) of Directive 2016/343. The HYA and Others judgment sets a higher standard than that guaranteed by the ECtHR, preventing the use of sole or decisive witnesses in reaching a final conviction decision. Finally, the judgment extends the scope of defence rights in EU law and enhances the effectiveness of fundamental rights in criminal proceedings.
In the light of the right to a fair trial and the possibility of in absentia trials, the main purpose of this article is to discuss the meaning of the concept of “having been informed, in due time, ...of the trial,” under Article 8(2a) of Directive (EU) 2016/343, read in parallel with Article 4a(1) (a) (i) of Council Framework Decision 2002/584/JHA. When thus read and taking into account the legislative history of the Directive, it seems that a different standard is foreseen for the summoning of the accused person for trial under each of the referred legal instruments. I then test the Portuguese standards for summoning the accused person for trial and trials in absentia under each of the possible standards.
Abstract
A recent decision by the International Criminal Court's Appeals Chamber in the Gbagbo and Blé Goudé case raised the possibility of a shift away from the long-standing practice of only ...holding trial in the presence of the accused. The final paragraphs of the 28 May 2020 decision asserts that any future trial proceedings in the Gbagbo et al. case could be held in the absence of the defendants should Mr Gbagbo and Mr Blé Goudé be released from custody and then later fail to appear for trial. This article examines the Appeals Chamber's decision in light of the Court's Statute, existing jurisprudence at the icc and within the larger context of international criminal law. It concludes that the Appeals Chamber's decision fails to properly understand the right to be present at trial as it exists in the Rome Statute nor does it comply with any identified general principle of law.
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