2023 Wisconsin Statutes & Annotations › Chapter 971 - Criminal procedure — proceedings before and at trial. › 971.04 - Defendant to be present.

971.04
Defendant to be present.
(1)
Except as provided in subs. (2) and (3), the defendant shall be present personally or as provided under s. 967.08:
(a)
At the arraignment;
(b)
At trial;
(c)
During voir dire of the trial jury;
(d)
At any evidentiary hearing;
(e)
At any view by the jury;
(f)
When the jury returns its verdict;
(g)
At the pronouncement of judgment and the imposition of sentence;
(h)
At any other proceeding when ordered by the court.
(2)
A defendant charged with a misdemeanor may authorize his or her attorney in writing to act on his or her behalf in any manner, with leave of the court, and be excused from attendance at any or all proceedings.
(3)
If the defendant is present at the beginning of the trial and thereafter, during the progress of the trial or before the verdict of the jury has been returned into court, voluntarily absents himself or herself from the presence of the court without leave of the court, the trial or return of verdict of the jury in the case shall not thereby be postponed or delayed, but the trial or submission of said case to the jury for verdict and the return of verdict thereon, if required, shall proceed in all respects as though the defendant were present in court at all times. A defendant need not be present at the pronouncement or entry of an order granting or denying relief under s. 974.02, 974.06, or 974.07. If the defendant is not present, the time for appeal from any order under ss. 974.02, 974.06, and 974.07 shall commence after a copy has been served upon the attorney representing the defendant, or upon the defendant if he or she appeared without counsel. Service of such an order shall be complete upon mailing. A defendant appearing without counsel shall supply the court with his or her current mailing address. If the defendant fails to supply the court with a current and accurate mailing address, failure to receive a copy of the order granting or denying relief shall not be a ground for tolling the time in which an appeal must be taken.
History:  1971 c. 298; Sup. Ct. Order, 130 Wis. 2d xix (1986); 1993 a. 486; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); 2001 a. 16; 2021 a. 141.
Judicial Council Note, 1996: This statute [sub. (1) (c)] defines the proceedings at which a criminal defendant has the right to be present. The prior statute's [sub. (1) (c)] reference to “all proceedings when the jury is being selected" was probably intended to include only those at which the jurors themselves were present, not the selection of names from lists which occurs at several stages before the defendant is charged or the trial jury picked. [Re Order effective 1-1-97]
The court erred in resentencing the defendant without notice after imposition of a previously ordered invalid sentence. State v. Upchurch, 101 Wis. 2d 329, 305 N.W.2d 57 (1981).
If the court is put on notice that the accused has a language difficulty, the court must make a factual determination of whether an interpreter is necessary. If so, the accused must be made aware of the right to an interpreter, at public cost if the accused is indigent. A waiver of the right must be made voluntarily in open court on the record. State v. Neave, 117 Wis. 2d 359, 344 N.W.2d 181 (1984).
Sub. (2) allows entry of a plea to a misdemeanor by an attorney without the defendant being present, but for a guilty or no contest plea, all requirements of s. 971.08, except attendance, must be met. State v. Krause, 161 Wis. 2d 919, 469 N.W.2d 241 (Ct. App. 1991).
Sub. (1) does not encompass a postconviction evidentiary hearing. State v. Vennemann, 180 Wis. 2d 81, 508 N.W.2d 404 (1993).
A defendant present at the beginning of jury selection is not “present at the beginning of the trial" under sub. (3). State v. Dwyer, 181 Wis. 2d 826, 512 N.W.2d 233 (Ct. App. 1994).
A defendant's presence is required during all proceedings when the jury is being selected, including in camera voir dire. However, failure to allow the defendant's presence may be harmless error. State v. David J.K., 190 Wis. 2d 726, 528 N.W.2d 434 (Ct. App. 1994).
A trial begins under sub. (3) when jeopardy attaches, which is when the jury is sworn. State v. Miller, 197 Wis. 2d 518, 541 N.W.2d 153 (Ct. App. 1995), 95-0129.
An accused has the right to be present at trial, but the right may be waived by misconduct or consent. A formal on-the-record waiver is favored but not required. State v. Divanovic, 200 Wis. 2d 210, 546 N.W.2d 501 (Ct. App. 1996), 95-0881.
A defendant may not be sentenced in absentia. The right to be present for sentencing may not be waived. State v. Koopmans, 210 Wis. 2d 670, 563 N.W.2d 528 (1997), 94-2424.
Koopmans, 210 Wis. 2d 670 (1997), does not require rejecting the harmless error test for all violations of this section. State v. Peterson, 220 Wis. 2d 474, 584 N.W.2d 144 (Ct. App. 1998), 97-3294.
Deprivation of the right to be present and to have counsel present at jury selection is subject to a harmless error analysis; there is a thin line between when reversal is warranted and when it is not. That a juror's subjective bias is generally ascertained by that person's responses at voir dire and that the interplay between potential jurors and a defendant is both immediate and continuous are factors that weigh against finding harmless error. State v. Harris, 229 Wis. 2d 832, 601 N.W.2d 682 (Ct. App. 1999), 98-1091.
A violation of sub. (1) does not automatically translate into a constitutional violation. The entry of a plea from jail by closed circuit television, while a violation of the statute, does not violate due process absent a showing of coercion, threat, or other unfairness. State v. Peters, 2000 WI App 154, 237 Wis. 2d 741, 615 N.W.2d 655, 99-1940.
Reversed on other grounds. 2001 WI 74, 244 Wis. 2d 470, 628 N.W.2d 797, 99-1940.
The correction of a clerical error in the sentence portion of a written judgment to reflect accurately an oral pronouncement of sentence is not the pronouncement or imposition of a sentence under sub. (1) (g) and does not mandate the offender's presence when the error is corrected. State v. Prihoda, 2000 WI 123, 239 Wis. 2d 244, 618 N.W.2d 857, 98-2263.
Excusing and deferring prospective jurors under s. 756.03 is one component of a circuit judge's obligation to administer the jury system. The judge may delegate the authority to the clerk of circuit court under s. 756.03 (3), may be handled administratively, need not be handled by a judge, in court, or with the prospective juror present in person, and may take place well in advance of a particular trial. The defendant's presence cannot be required when the judge or clerk is acting in an administrative capacity. State v. Gribble, 2001 WI App 227, 248 Wis. 2d 409, 636 N.W.2d 488, 00-1821.
Although it was error for the court to interview potential jurors outside of the presence of the prosecution, defendant, and defense counsel, the error was harmless when there was no showing that it contributed to the defendant's conviction. State v. Tulley, 2001 WI App 236, 248 Wis. 2d 505, 635 N.W.2d 807, 00-3084.
A court's order that the defendant not look at his victim during the victim's statement to the court because, the trial court said, “I just don't want him intimidating her," did not deprive the defendant of his statutory right under this section or a due process right to be present at his sentencing. State v. Payette, 2008 WI App 106, 313 Wis. 2d 39, 756 N.W.2d 423, 07-1192.
Sub. (1) (g) provides a criminal defendant the statutory right to be in the same courtroom as the presiding judge when a plea hearing is held and the court accepts the plea and pronounces judgment. A defendant may waive, but not forfeit, the right to be in the same courtroom as the presiding judge. State v. Soto, 2012 WI 93, 343 Wis. 2d 43, 817 N.W.2d 848, 10-2273
The defendant waived his statutory right to be in the same courtroom as the presiding judge because he appeared in a courtroom with both his attorney and the prosecuting attorney; through videoconferencing, the judge was able to see, speak to, and hear the defendant, and the defendant was able to see, speak to, and hear the judge; the judge explained that videoconferencing would be used for the plea hearing if the defendant chose to enter a plea that day; and the defendant expressly consented to the use of videoconferencing for the plea hearing. State v. Soto, 2012 WI 93, 343 Wis. 2d 43, 817 N.W.2d 848, 10-2273.
The circuit court's decision to exclude the defendant from in-chambers meetings with jurors during the trial regarding possible bias did not violate the statutory right under sub. (1) (c) to be present during voir dire. Voir dire is a preliminary examination of whether an individual can serve on a jury. In this case, the trial had already commenced and the jurors had already been selected when the bias issue arose. State v. Alexander, 2013 WI 70, 349 Wis. 2d 327, 833 N.W.2d 126, 11-0394.
While Soto, 2012 WI 93, describes what a circuit court should do to establish a valid waiver of the defendant's right to be present at the defendant's plea hearing when the defendant appears by videoconferencing or similar technology, is in a courtroom, and is in the same room as the defendant's attorney, more is required when the defendant appears by telephone, from prison, and is physically separated from counsel. Under these circumstances, a valid waiver of the defendant's right to be present must be predicated upon a colloquy that unambiguously informs the defendant he or she has a right to be physically present for the plea hearing in the same courtroom as the presiding judge. The court must specifically inquire, as often and in whatever manner is necessary under the circumstances, whether the defendant is able to hear and understand the court and the other participants. State v. Anderson, 2017 WI App 17, 374 Wis. 2d 372, 896 N.W.2d 364, 15-2611.
In a case in which a defendant asserts the defendant did not validly waive his or her right to be present at a plea hearing, once the defendant has shown that the circuit court's waiver colloquy was deficient and has asserted that the defendant did not understand his or her right to appear in person at the plea hearing, the burden should shift to the state to prove by clear and convincing evidence that the defendant did, in fact, knowingly, voluntarily, and intelligently waive the defendant's right to be present. State v. Anderson, 2017 WI App 17, 374 Wis. 2d 372, 896 N.W.2d 364, 15-2611.
Sub. (3) sets forth a way that a defendant can forfeit the right to be present at trial: by leaving after the jury has been sworn. The statute does not limit a defendant's ability to waive the right to be present and does not purport to set forth the exclusive manner in which a defendant can relinquish the right to be present. Sub. (3) was created to attend to the situation in which a defendant absconds, not when an obstreperous defendant seeks to delay and disrupt proceedings through the defendant's own actions. State v. Washington, 2018 WI 3, 379 Wis. 2d 58, 905 N.W.2d 380, 16-0238.
Similar to the constitutional right to be present, a defendant may waive the defendant's statutory right to be present at certain proceedings enumerated in sub. (1). Waiver can be either express or by conduct. Determining whether there is waiver by conduct presents a fact intensive inquiry. State v. Washington, 2018 WI 3, 379 Wis. 2d 58, 905 N.W.2d 380, 16-0238.