December 18, 2018

Colorado Supreme Court: Formal Advisement of Right to Be Present Not Prerequisite to Valid Waiver of Right

The Colorado Supreme Court issued its opinion in People v. Janis on Tuesday, November 13, 2018.

Right to Be Present—Waiver—Formal Advisements.

At trial, defendant, who was in custody, asked through her counsel to leave the courtroom during the victim’s testimony. She claimed that the testimony might trigger her post-traumatic stress disorder. Without first advising her of her right to be present or inquiring with her directly about her desire to leave, the trial court granted defendant’s request. Defendant asserted on appeal that this constituted reversible error. A division of the court of appeals agreed.

The supreme court held that a formal advisement of the right to be present at trial is not a prerequisite to a valid waiver of that right, even when a defendant is in custody. The touchstone is whether, under the totality of the circumstances, the waiver was knowing, intelligent, and voluntary. In this case, the court concluded that defendant’s waiver was knowing, intelligent, and voluntary. Accordingly, the court reversed the court of appeals’ judgment and remanded the case to address any previously unresolved issues.

Summary provided courtesy of Colorado Lawyer.

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