Law, Presence to Absence

The live presence of a defendant at trial is a long-standing feature of adversarial criminal trial. So much of what constitutes the adversarial method of adjudication is dependent on qualities that arise from this presence: confrontation and demeanor assessment, among other factors, play important roles in how truth is constructed. As such, performative matters—how a defendant enacts and inhabits her role, how she is positioned or silenced-- have long been of concern to legal scholars. These performative concerns are also centrally implicated in defendant rights, such as the right to a fair trial. But today we face new challenges that call into question fundamental beliefs around trials, defendant presence, and fairness. First, technological advances have led to defendants appearing remotely in hearings from the prison in which they are held. Second, the trial itself is arguably vanishing in most adversarial jurisdictions. Third, the use of trials in absentia means that criminal trials may take place in a defendant’s absence; in England and Wales for less serious offenses this can be done without inquiring why a defendant isn’t there. This chapter therefore seeks to understand the performative implications of these challenges by shifting the conversation from presence to absence. What difference does it make if a defendant is no longer there? Does being there facilitate greater fairness, despite the obvious issues of constraint and silencing? Drawing on sociolegal, political, and performance theory the chapter considers the implications of absence in the criminal trial, asking what happens when the defendant disappears.