Bristol County District Attorney Sam Sutter’s proposal to move trials forward even if the defendant fails to appear would be declared unconstitutional by the Massachusetts Supreme Judicial Court. In an effort to decrease the number of defendant’s who fail to appear in court, the Bristol County District Attorney has proposed requiring defendants to sign waivers allowing trials to proceed without their appearance in the event of a default. This waiver would clearly be unconstitutional as courts indulge every presumption against waiver of constitutional rights. The so-called waiver for defendants that default would involve defendants waiving numerous constitutional rights, including the right to confront their accuser, right to testify, elect between a bench or jury trial and the right to effective assistance of counsel and a fair trial.

As a Fall River criminal lawyer, I can understand the frustration of the district attorney that cases cannot be resolved as a result of defendants failing to appear in court. However, District Attorney Sutter’s proposal is an unconstitutional and would ultimately be unworkable. First, a defendant should simply refuse to sign the so-called waiver form. It would be inappropriate for a judge to raise or set a higher bail based on the district attorney attempting to obtain a waiver of a defendant’s Constitutional rights.

As a Bristol County criminal lawyer, it would be inconceivable to have a trial without the defendant being present. First, there are certain fundamental decision that a criminal lawyer cannot make without consulting with the defendant, whether to proceed with a bench or jury trial and whether or not the defendant testifies. Clearly, allowing a trial to go forward without the defendant would deprive the defendant of the opportunity to testify and deny the defendant a fair trial. Further, there would be a natural tendency for the jury to find a defendant guilty based on the failure to appear as the jury would likely speculate as to the reason for the defendant not appearing.

District Attorney Sutter’s proposal also underestimates the amount and time consuming collateral attack on convictions that would result. Defendants convicted would naturally challenge the conviction and argue that the reason for the default did not justify the severe sanction of the case proceeding to trial without the defendant’s presence. Courts would be forced to litigate time consuming motions for new trial filed by Massachusetts criminal attorneys.

While it is understandable the desire to decrease the number of defaults to move cases, defendants defaulting are not the only cause of cases being delayed. It is not uncommon for police officers to fail to appear for trial and for the Commonwealth to seek continuance. Moreover, the Commonwealth frequently seeks continuance for numerous reasons, including unavailable witnesses and not having evidence that should have been obtained prior to trial. Finally, there are already mechanisms in place to deter defendants from defaulting, including the setting of bail.

I would not expect the waiver form to have much impact on future cases as defendants should not sign the form. The focus brought by the media report of the proposal may result in the district attorney seeking higher bail amounts for defendants with a record of defaulting for court appearances.