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What does "in Absentia" Mean?

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  • Written By: Jessica Ellis
  • Edited By: Bronwyn Harris
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  • Last Modified Date: 01 November 2016
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"In absentia" is a legal term that means “in the absence”. Legally, it refers to a trial or conviction that occurs without the presence of the defendant. In the United States, in absentia trials are generally considered unconstitutional, but many other nations and some international laws permit trials and convictions of defendants without their presence.

There are several arguments against in absentia trials. One of the primary arguments suggests that convicting or trying a defendant without his or her presence denies him or her the fundamental right of a fair trial. Without being present, the defendant cannot enter a plea, testify on his or her own behalf, or consult with counsel. Many laws and judicial precedent stipulate that the defendant must be present at every stage of a trial that could involve his or her rights, including at an arraignment, plea hearing, and sentencing. If the defendant is not present at these pivotal moments, there is no one to safeguard his or her rights from infringement, which can result in the invalidation of the entire proceeding.

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There are some exceptions to in absentia law even in regions with strict guidelines that require a defendant's presence. For instance, in some areas, if a defendant voluntarily chooses not to appear at a trial after it has begun, such as by fleeing the region, he or she may be subject to an in absentia trial and verdict. Additionally, if the defendant causes a disruption in court after a warning of removal, he or she may be taken away to allow the trial to continue uninterrupted. Absentia decisions may also be allowed in minor cases when the defendant provides written permission for the trial to continue in his or her absence.

Regions without in absentia laws often conduct trials for defendants who are not citizens, those whose whereabouts are unknown, or even those whose whereabouts are suspected but have not yet been captured. At the Nuremberg War Trials, for instance, several known leaders of Nazi activities were sentenced in absentia by the tribunal. Fugitives from justice are often subject to this type of trial, though it is unusual for a country with in absentia laws to extradite a defendant to a country that has convicted him or her without due process.

While considered a violation of individual human rights and due process in some regions, other regions favor the argument that justice does not always require physical presence of the defendant, especially in the face of overwhelming evidence. The verdicts of trials that have no defendant are not only sometimes scorned as unfair, but also are generally unenforceable until the convicted defendant is found or extradited. Those convicted in absentia must generally take precautions to avoid visiting territories governed by their accusers, but many can live in total freedom in other parts of the world.

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