please see below for the transcript of the video
Hi, I’m Richard Waring, and I’m a criminal defense attorney in Charleston, SC. If you’ve been charged with robbery, burglary, possession of marijuana, disorderly conduct, DUI, or some other crime, have you ever asked yourself, “what will happen if I skip town to avoid my criminal trial?”
First off, South Carolina courts do, in fact, allow for you to be tried in your absence; however, it is not automatic. Typically, the trial court will conduct a two part test to determine whether you will be tried in your absence. First, the court will look to whether you received notice of your trial date and your right to be present for it, and secondly the court will look to see whether you were warned that you could be tried in your absence if you failed to show up.
So, essentially if the trial court determines that the two part test has been satisfied (i.e. that you were given notice of when your trial would be, that you had the right to be present for it, and that you were warned you could be tried in your absence if you didn’t show up), then you have effectively waived your right to be present for your own trial.
It’s important to keep in mind that whenever you get arrested, if you’re given a bond (see my previous video on bonds for information on that topic), you will most likely have to sign some bond paperwork. Well, on that paperwork, sometimes it provides notice to you that you can be tried in your absence. South Carolina courts have held that that can be a sufficient warning to you that you’ll be tried in your absence if you fail to show up for court.
The one exception to being tried in your absence is a capital case where someone is facing the possibility of getting sentenced to death. In that limited circumstance, they can’t be tried in their absence. But, for most regular misdemeanors and felonies, you can be.
Now, in most counties in South Carolina, prior to trial there will be some kind of status conference or pre-trial docket meeting in which you are noticed for court, and your attorney and the prosecutor discuss in front of the judge what is going to happen with the case. Is it going to proceed to trial, or are you planning to plead guilty? Or, is there some other resolution short of a trial that will happen? Those are the kinds of questions that are covered at these kinds of hearings.
But, the important thing is that at these hearings that take place prior to your trial, the court gives you notice of your trial date or term of court, and ideally you get notified again that you can be tried in your absence if you don’t show up. So, if you do show up for that court appearance, you are essentially being notified again of when you trial date is. Also, the court and/or the prosecutor’s office sends out trial date notices to you. So, all of these things can be used to show that you were given proper notice of your trial date.
Of course, a good criminal defense attorney in Charleston, SC or another county is going to object to your being tried in your absence in the first place, so the prosecutor would have to successfully argue to the judge that the two part test has been satisfied. Even still, the trial judge may be hesitant to try you in your absence anyway. But, that’s a risk because sometimes they are willing to proceed to trial in your absence.
Alright, so you’ve been charged with a crime such as a DUI, assault, possession of cocaine, or whatever the case might be in South Carolina. You’ve had it with this whole court system stuff. You’re gonna hit the road in your convertible and leave your problems behind you. Your trial date arrives, but you’re nowhere to be found. Your attorney objects to you being tried in your absence, but the prosecutor is able to convince the judge that you waived your right to be present at your trial because he or she shows that you were given notice of your court date and that you were told you had a right to be there, and he or she shows that you were notified you could be tried in your absence. So, the judge allows your trial to move forward without you.
Well, how does your trial look without you being there? There’s an elephant in the room the entire trial that nobody mentions, but there it is the whole time, sitting quietly in the corner. A massive elephant. The prosecutor can’t make any reference to the fact that you’re not present for your own trial, but the jurors, who have been forced to come to court and be away from their jobs and families to sit in judgment on your case are going to wonder why you’re not there regardless.
So, hypothetically, let’s assume the evidence against you is fairly strong, and the prosecution is able to convince the jury beyond a reasonable doubt that you committed the crime you’re on trial for. The end of trial proves to be very uneventful and anticlimactic because after the bomb is dropped that you’ve been convicted by the jury, you are not there to be sentenced.
But, here’s the interesting thing about the sentencing phase for defendants who get found guilty at trial in their absence. The judge usually seals the sentence. In other words, where ordinarily the judge tells the whole courtroom what the sentence is immediately following the guilty verdict at trial, in trials in absentia, or when someone is tried in their absence, usually the judge writes down the sentence, but seals it and it is kept confidential. It’s only unsealed once you’re later picked up on the bench warrant that the judge will issue at the end of trial for your arrest for not showing up to court.
If you’re not found and arrested on the bench warrant within 90 days, then the case usually gets put into FTA or failure to appear status by the Solicitor’s Office (the prosecutor’s office). At that point, the case is dormant or inactive, but still technically open. Because, since you haven’t been officially sentenced yet, the case will remain open.
So, then what happens next? You go about your life in another state or laying low somewhere in a different county in South Carolina. And, sometime later on in life, maybe in your 70’s, when you’ve retired and are sipping on a cold one at the beach but get an open container violation, that old South Carolina FTA (failure to appear), which is your old conviction on the trial you were absent for, could come up when the police run a records check. If you’re in a different state and the crime is serious enough, South Carolina may try to have you extradited back to South Carolina to be sentenced and serve your punishment.
If it’s some very minor offense you skipped town on, then they may decide not to worry about it. But, if it was worth their time to try you on, the Solicitor’s Office may be willing to have you extradited back. And, then that’s when the endless suspense will come to a close because that envelope containing what the trial judge wrote down as your sentence will be opened and your sentence revealed.
And, when I was a prosecutor, I tried one or two trials where the defendant was absent. It did not end well for them. And, I think one defendant ended up getting found guilty and the judge gave him five years in prison. Of course, the defendant did not find out about the sentence until he was picked up on his bench warrant many months later.
So, right about now in the presentation, you might be asking why I’m talking about these scary scenarios. Well, the reason is because I can’t tell you how many times when I was the duty solicitor at the prosecutor’s office when people in the later stages of their lives would call us up and tell me that they had discovered they had a bench warrant for some conviction that resulted from a trial in their absence from 10-20 years ago. Yikes. Most of them undoubtedly had moved on with their lives and had gotten their acts together, started families, and had good jobs.
Consult with an attorney on any of these kinds of scenarios, but as a general rule of thumb, it’s probably best to face your problems head on to begin with by showing up for court. It could save you some extreme heartache later on in life.
And, if you’re in the Charleston, SC area or Lowcountry of South Carolina, feel free to give me a call anytime and we can go over the details of your DUI, possession of marijuana, disorderly conduct, reckless driving or whatever your charge might be. Having prosecuted thousands of crimes, I’ve got the experience to help you figure out your case. Best of luck.
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