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In absentia is Latin for "in the absence". In legal use, it usually means a trial at which the defendant is not physically present. The phrase is not ordinarily a mere observation, but suggests recognition of violation to a defendant's right to be present in court proceedings in a criminal trial.

In common law legal systems, conviction of a person in absentia, that is, in a trial in which he/she is not present to answer the charges, is held to be a violation of natural justice. Specifically, it violates the second principle of natural justice, audi alteram partem. By contrast, in some civil law legal systems, such as Italy, trial in absentia is permitted. Such trials may require the presence of the defendant's lawyer depending on the country.

Under United States law[link]

For more than 100 years, courts in the United States have held that, according to the United States Constitution, a criminal defendant's right to appear in person at their trial, as a matter of due process, is protected under the Fifth, Sixth, and Fourteenth Amendments.

In 1884, the United States Supreme Court held that

the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution. Hopt v. Utah 110 US 574, 28 L Ed 262, 4 S Ct 202 (1884).

A similar holding was announced by the Arizona Supreme Court in 2004 (based on Arizona Rules of Criminal Procedure):

A voluntary waiver of the right to be present requires true freedom of choice. A trial court may infer that a defendant's absence from trial is voluntary and constitutes a waiver if a defendant had personal knowledge of the time of the proceeding, the right to be present, and had received a warning that the proceeding would take place in their absence if they failed to appear. The courts indulge every reasonable presumption against the waiver of fundamental constitutional rights. State v. Whitley, 85 P.3d 116 (2004)

Although United States Congress codified this right by approving Rule 43 of the Federal Rules of Criminal Procedure in 1946 and amended the Rule in 1973, the right is not absolute.

Rule 43 provides that a defendant shall be present

• at the arraignment,
• at the time of the plea,
• at every stage of the trial including the impaneling of the jury and the return of the verdict and
• at the imposition of sentence.

However, the following exceptions are included in the Rule:

• the defendant waives his right to be present if he voluntarily leaves the trial after it has commenced,
• if he persists in disruptive conduct after being warned that such conduct will cause him to be removed from the courtroom,
• a corporation need not be present, but may be represented by counsel,
• in prosecutions for misdemeanors, the court may permit arraignment, plea, trial, and imposition of sentence in the defendant's absence with his written consent, and
• the defendant need not be present at a conference or argument upon a question of law or at a reduction of sentence under Rule 35 of the Federal Rules of Criminal Procedure.

Indeed, several U.S. Supreme Court decisions have recognized that a defendant may forfeit the right to be present at trial through disruptive behavior,^[1] or through his or her voluntary absence after trial has begun.^[2]

In 1993, the Supreme Court revisited Rule 43 in the case of Crosby v. United States.^[3] The Court unanimously held, in an opinion written by Justice Harry Blackmun, that Rule 43 does not permit the trial in absentia of a defendant who is absent at the beginning of trial.

This case requires us to decide whether Federal Rule of Criminal Procedure 43 permits the trial in absentia of a defendant who absconds prior to trial and is absent at its beginning. We hold that it does not. ...The Rule declares explicitly: "The defendant shall be present . . . at every stage of the trial . . . except as otherwise provided by this rule" (emphasis added). The list of situations in which the trial may proceed without the defendant is marked as exclusive not by the "expression of one" circumstance, but rather by the express use of a limiting phrase. In that respect the language and structure of the Rule could not be more clear."

However, the Crosby Court reiterated an 80-year-old precedent that

Where the offense is not capital and the accused is not in custody, . . . if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present. Diaz v. United States, 223 U.S. at 455 [1912] (emphasis added).

Some state laws provide for automatic retrial of fugitives who are arrested after being convicted in absentia.^[4]

Examples[link]

Examples of people convicted in absentia are:

• Cesare Battisti, thriller author and former member of the Italian militant group Armed Proletarians for Communism, sentenced to life. (Arrested on March 18, 2007 in Brazil.)
• Krim Belkacem, Algerian Berber resistance fighter and politician. (Assassinated on October 18, 1970 in West Germany.)
• Heinrich Boere, a Dutch or German convicted by a Dutch court in 1949 of murders on the part of the World War II German occupation authorities in the Netherlands. German courts refused to extradite Boere to the Netherlands due to his possibly having German citizenship.
• Martin Bormann, Nazi official and Hitler's private secretary, sentenced to death at the Nuremberg war crimes trials. (Disappeared on May 2, 1945. Remains were uncovered in late 1972 in West Berlin.)
• Dési Bouterse, Suriname's former military leader, sentenced to 16 years in prison and fined $2.18 million in the Netherlands for cocaine trafficking.
• Ahmed Chalabi, former Iraqi oil minister, convicted in Jordan for bank fraud.
• Ira Einhorn, anti-war activist and murderer, who challenged his conviction in Pennsylvania. (Escaped to Europe, but was extradited from France back to the US on July 20, 2001.)
• John Factor, a British-born American gangster and con man, charged with securities fraud in England and tried and sentenced to 24 years in prison in absentia after fleeing back to the United States.
• Charles de Gaulle, sentenced first to four years in prison and later to death in 1940 for treason against the Vichy Regime.
• Boļeslavs Maikovskis, Latvian Nazi collaborator sentenced to death by a Soviet court in 1965 (while living in the United States).^[5]
• Mengistu Haile Mariam, former dictator sentenced to death in Ethiopia for genocide.
• Jamal Jafaar Mohammed, sentenced to death by a Kuwaiti court for the 1983 Kuwait bombings. He is currently serving in Iraq's parliament as a member of Prime Minister Nouri al-Maliki's Islamic Dawa Party.^[6]
• Abu Musab al-Zarqawi, sentenced to death in Jordan. (Killed on June 7, 2006 in Iraq.)
• Andrew Luster, convicted of rape after fleeing mid-trial.
• Filiberto Ojeda Ríos, convicted in the US after fleeing.
• Zine El Abidine Ben Ali, former president of Tunisia, sentenced to 35 years in prison along with his wife, Leïla Ben Ali.
• Bernardo Provenzano, Sicilian Mafia boss convicted of numerous murders during his 42 years as a fugitive.
• Michael Townley, Chilean DINA agent, has been convicted in 1993 by an Italian court in carrying out the 1975 Rome murder attempt on Bernardo Leighton.^[7] (Currently living under the United States Federal Witness Protection Program.)
• Sholam Weiss, sentenced to the longest federal prison term in United States history for fraud, money laundering and other crimes. (Extradited by Austria on June 20, 2002.)^[8][9]
• Irakli Okruashvili, Defense Minister of Georgia from 2004 to 2006 and a personal friend of Georgian president Mikheil Saakashvili. Okruashvili returned to prominence when he formed an opposition party to the Georgian government and accused it of corruption and plotting assassinations. He was arrested days later on charges of extortion, bribe taking, and abuse of power, and released on $6 million bail pending trial. He flew to Europe, supposedly to seek medical treatment, but tried to find political asylum. He was denied asylum in Germany, but received it in France, which refused an extradition request from Georgia. He was tried in absentia, found guilty, and sentenced to 11 years imprisonment.^[10]
• Alexander Poteyev, ex-colonel of the Russian intelligence agency SVR, was sentenced in absentia to 25 years of imprisonment on the charge of high treason by Moscow court in 2011. His whereabouts are unknown, presumably he lives in the United States under protection of the US government.

See also[link]

• List of Latin phrases
• Right to a fair trial
• Death in absentia
• Default judgment (a civil counterpart)

References[link]

In Absentia
Cover art by Lasse Hoile
Studio album by Porcupine Tree
Released	24 September 2002 (2002-09-24)
Recorded	Avatar Studios,[1] New York March 2002-April 2002
Genre	Progressive rock,[2] progressive metal[3]
Length	68:20
Label	Lava
Producer	Steven Wilson
Porcupine Tree chronology
Lightbulb Sun (2000) In Absentia (2002) Deadwing (2005)

In Absentia is the seventh studio album by British progressive rock band Porcupine Tree, first released on 24 September 2002. The album marked several changes for the band, with it being the first with new drummer Gavin Harrison and the first to move into a more heavy metal and progressive metal direction, contrary to past albums psychedelic and pop rock sounds. Additionally, it was their first release on a major record label, Lava Records. It was very well received critically and commercially, with it often being considered the band's crowning achievement, and selling over triple what any of the band's prior album's had in the past.

Background[link]

Writing and recording[link]

In the band's earlier years, while under Delerium Records, the band's music typically possessed more extended and abstract qualities typically associated to psychedelic rock and space rock^[4][5] The band shifted their sound in the late 1990s when signing to Kscope/Snapper Record labels, to a more commercial, radio friendly sounded that entailed shorter compositions and traditional song structures, while retaining progressive rock qualities as well.^[5][6][7] However, by around 2001, they had again outgrown a smaller record label, and after changing labels again to Lava Records, decided to move in a more progressive metal direction.^[8] The band had originally opposed to major record labels, believing that most labels didn't "get" the band, and their emphasis on albums over singles, approach in this era of music.^[9] However, they chose Lava because they appeared to support this philosophy, Wilson attributing this due to other bands, namely Tool and Radiohead, achieving success with the same mindset.^[9]

A number of other factors affected the change in sound beyond the change in record label. Many were key personnel changes and relationships. Most prominently was frontman Steven Wilson's meeting of Mikael Åkerfeldt from the Swedish metal band Opeth, which occurred when the two were separately interviewed by an interviewer who had interviewed both of them.^[10] Impressed with their music, Wilson eventually agreed to produce the next Opeth album, Blackwater Park,^[11] which inspired Wilson to move Porcupine Tree in a more metal direction as well.^[12]

Another factor in the change of the band's sound was due to Wilson's meeting of Israeli rock singer Aviv Geffen. The two met when Geffen, a fan of Wilson's music, invited Porcupine Tree on a tour in 2000 in support of the band's previous album, Lightbulb Sun.^[13] Touring together lead to a separate musical collaboration named Blackfield. Geffen, not being a fan of metal music, kept that project in more of a pop rock genre, sounding more like prior Porcupine Tree albums Stupid Dream and Lightbulb Sun.^[14][15] This allowed Wilson to have an outlet for the that side of his music, allowing him to concentrate on more metal sounds with Porcupine Tree without abandoning the prior genre altogether either.^[14] Rounding out the changes was the departure of drummer Chris Maitland, with the replacement being Gavin Harrison, who joined in early 2002. Maitland was unable to make a larger commitment with being signed to a major record label, and the band found Harrison's style more fitting more a more metal-sounding album.^[16][17] Wilson summarized the band's changes at the time as:

In Absentia was all written before Gavin came on; even the drum parts were kind of programmed. But it’s one of those times sometimes in life when everything comes together. I’d written these songs and I was very much more interested at that time—having worked with Opeth—in the idea of combining a more kind of brutal or metal aspect back again into the fabric of the music. At the same time Gavin came along and Gavin was a very different drummer to our previous drummer, Chris Maitland. He was much more of a powerhouse and he was much more technical. He had more of a contemporary edge to his sound so it was just one of those really lucky things that he just came in and he played those songs and just blew everyone away and everything just kind of came together. And of course it was the first record we made for our new label and we got signed to a big American label for the first time [Lava Records]. Gavin was the final piece of that equation in a way—he just totally raised the bar in terms of not just the drumming but just the musicianship right throughout the band. Everyone was listening to Gavin and saying, “Fuck, wow. We really need to step up our game.”^[5]

Concept[link]

While not a formal concept album, many of the songs still have common themes related to serial killers, youthful innocence gone wrong, and criticisms of the modern world.^[18] The album's title is also ties into this, with the phrase being Latin for "in absence"^[19] or "in ones absence", often in reference to a person's rights when mentally unable to be represented in court in legal situations.^[20] Wilson said of the title:

"It comes from…it's related to some of lyrics. It's about people on the fringes, on the edges of humanity and society. I have an interest in serial killers, child molesters and wife beaters…not in what they did but in the psychology of why, what caused them to become unhinged and twisted? Why are they unable to empathize? It's [In Absentia] sort of a metaphor - there's something missing, a black hole, a cancer in their soul. It's an absence in the soul."^[21]

Release and promotion[link]

The album was released on 24 September 2002. A few weeks prior to the album's release, a sampler containing "Blackest Eyes" and shortened versions of "Trains" and "Strip the Soul" was released.^[22] The opening track, "Blackest Eyes", was picked up for airplay by major rock radio stations, but the song was not officially released as a single, nor did it chart.^[9] The band toured in support of the album with the band Yes.^[17] This is something Wilson would later regret doing, stating that the audiences of the two band's were too different, stating " the problem was that most of the people who came to see Yes had stopped caring about new music many years before and were really there just to hear their favourite Yes oldies."^[17] The band would later do a second tour in support of the album with Opeth as well.^[23] During this tour, in July and August 2003, the band released the Futile EP, which included songs recorded during the In Absentia recording sessions.^[23]