5.17.2006

D.N.H. Notes Split Re Right of a Civil Party to be Physically Present at Trial

Per McElwain v. Harris, Not Reported in F.Supp.2d, 2006 WL 1049935 (D.N.H. Apr 18, 2006):

In Fillippon v. Albion Vein Slate Co., the United States Supreme Court recognized the right of a civil litigant to be present in some capacity during the trial of her case: "We entertain no doubt that the orderly conduct of a trial by jury, essential to the proper protection of the right to be heard, entitles the parties who attend for the purpose to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the verdict." 250 U.S. 76, 81, 39 S.Ct. 435, 63 L.Ed. 853 (1919). Fillippon, however, left open the question whether a civil party, if represented by counsel, has a right to be physically present. The First Circuit has never directly resolved this question.

Other circuits are split. Compare Kulas v. Flores, 255 F.3d 780, 786 (9th Cir.2001) (“In a civil suit, the parties do not have a constitutional right to be personally present during trial.”), and Arrington v. Robertson, 114 F.2d 821, 823 (3d Cir.1940) (“The due process clause of the Fifth Amendment to the Constitution requires that a defendant be accorded the right to be present in person or by counsel at every stage of ··· trial.” (emphasis supplied)), with Preferred Prop., Inc. v. Indian River Estates, Inc., 276 F.3d 790, 797 (6th Cir.2002) (“[T]here is no doubt that a civil litigant has the right to be present in person ‘at all proceedings from the time the jury is impaneled until it is discharged after rendering a verdict.’ ” (quoting Fillippon, 250 U.S. at 81) (emphasis supplied)), Helminski v. Ayerst Labs., 766 F.2d 208, 213-218 (6th Cir.1985) (finding that, consistent with the Due Process Clause of the Fifth Amendment, a civil litigant may be excluded from her own trial only in certain circumstances), and Macartney v. Compagnie Generale Transatlantique, 253 F.2d 529, 536 (9th Cir.1958) (interpreting Fillippon to mean that “both parties (and their counsel) are entitled to attend all proceedings from the time the jury is impaneled until it is discharged.” (emphasis supplied)).

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