Rule 10.1 - Right of Defendant to be Present; Waiver(a)Right to Be Present. The defendant has the right to be present at the arraignment and at every stage of the proceedings. A corporate criminal defendant may appear by counsel for all purposes at any proceeding.(b)Waiver of the Right to Be Present.(1) Except as provided in subsection (2), a defendant may waive the right to be present at any proceeding in the following manner:(A) with the consent of the court, by a knowing, intelligent, and explicit waiver in open court or by a written waiver executed by the defendant and by the defendant's attorney of record, filed in the case; or(B) by the defendant's absence from any proceeding, if the court finds that such absence was voluntary and constitutes a knowing and intelligent waiver of the right to be present.(2) A defendant may not waive the right to be present:(A) during the imposition of his/her sentence in a felony case; or(B) if the defendant is not represented by counsel, except in minor misdemeanor cases where the potential punishment is a fine only and carries no potential for the loss of liberty.(c) Effect. If the defendant waives the right to be present, the trial may proceed to completion, including the return of the verdict.(d) Unexcused Defendant. If a defendant is not present at the trial, or any stage of the proceedings, and the defendant's presence has not been waived or the absence has not been excused, the court, by order, may direct law enforcement officers forthwith to bring the defendant before the court.Comment
The right of the defendant to be present protects various rights of the accused. See Miss. Const. art. 3, § 26 ("In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both [and] to be confronted by the witnesses against him").
Section (b) allows a defendant to waive the right to be present, consistent with prior practice. The standards for waiver are those required for waiver of other constitutional rights. See Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) ("an intentional relinquishment or abandonment of a known right or privilege").
The defendant may make an express waiver or the defendant may waive the right through voluntary absence from the proceeding. See Wales v. State, 73 So. 3d 1113 (Miss. 2011); Taylor v. United States, 414 U.S. 17, 94 S. Ct. 194, 38 L. Ed. 2d 174 (1973).
A defendant deemed to have waived the right to be present pursuant to subsection (b)(1)(B) might still be involuntarily absent and should be permitted to prove that fact in a subsequent or collateral proceeding. The decision to proceed in light of a voluntary waiver pursuant to subsection (b)(1)(B) is discretionary with the court. The court is in no instance required to proceed.