Rule 38. Presence of the Defendant

Rule 38. Presence of the Defendant. (a) Presence Required. A defendant charged with a felony offense shall be present at a felony first appearance, an arraignment, any hearing where evidence will be presented, a change of plea hearing, at every stage of trial, including the impaneling of the jury and return of the verdict, at a sentencing hearing, and at a hearing on an adjudication or disposition for a petition to revoke probation. (1) The defendant shall be physically present for every hearing at which evidence will be presented and all stages of the trial including the impaneling of the jury and return of the verdict; but (2) Unless Rule 38.2 applies, the defendant may elect to be present by telephone or by videoconference at any other proceeding, subject to the approval of the court. (b) Presence Not Required. A defendant need not be present in the following situations: (1) In felony prosecutions, the court may, with the written consent of the defendant, permit the absence of the defendant for all hearings not listed in subsection (a) of this rule; (2) In prosecutions for minor offenses or misdemeanors, the court may, with the written consent of the defendant, conduct all hearings, including arraignment, plea, trial, and imposition of sentence, in the defendant’s absence. A defendant’s consent to allow the entry of a guilty or no contest plea, trial, or sentencing to proceed in the defendant’s absence must be approved by the court in advance of the proceeding; (3) An organization as defined in AS 11.81.900(b) may appear by counsel for all purposes; and (4) The defendant’s presence is not required at a hearing on reduction of sentence under Rule 35(a). (c) Continued Presence Not Required. A trial may continue without the presence of a defendant if the defendant is voluntarily absent after the start of the trial or the defendant has engaged in conduct during the trial justifying exclusion from the courtroom. (d) Hearing Notice. The court shall provide a notice to a defendant of the date, time, and place of a scheduled hearing at which the defendant is required to appear, in a form and manner established by the court. (e) Hearing Reminder. In addition to the notice required under (d) of this rule, the court shall provide a reminder notification to a defendant who is not in custody and to the Department of Corrections at least 48 hours prior to a scheduled hearing at which the defendant is required to appear regarding the date, time, and place of the scheduled hearing and the potential consequences of failure to appear, in a form and manner established by the court. (f) Effect of Hearing Reminder. If a defendant received actual notice of a hearing, whether oral or written and whether to the defendant’s attorney or to the defendant personally, then failure to receive a hearing reminder under subsection (e) of this rule is not a defense to the defendant’s failure to appear at the hearing. Note: Chapter 36, SLA 2016 (SB 91) enacted a number of changes relating to criminal procedure. Section 178 of the Act added a new subsection (d) requiring the court to notify the defendant of the hearing date, time, and place for a required appearance. Section 178 of the Act requires the court to also send a reminder notice for that hearing, at least 48 hours in advance, to a defendant not in custody and to the Department of Corrections and include the potential consequences of failure to appear. This rule change is adopted for the sole reason that the legislature has mandated the amendment.