Dr Kate Leader
A defendant’s live presence is constitutive to the adversarial method of evidence testing; confrontation and demeanour assessment, amongst other factors, play important (if not uncontroversial) roles in how the ‘truth’ is determined (either by judge or by a jury) within the trial. As such, performative concerns; how a defendant enacts and inhabits her role, how she is displayed, positioned, constrained or silenced, whilst not always explicitly articulated in such terms, have long been of concern to criminologists and some theatre and performance scholars. These performative concerns are also therefore centrally implicated in the question of defendant rights, such as the right to a fair trial or access to justice.
But in 2019 we face new challenges that call into question some fundamental ideas around defendant presence and evidence testing: firstly, technological advances have led to the increase of defendants appearing remotely in hearings from the police station or prison in which they are being held on remand. Secondly, ‘Online courts’, where a defendant enters her plea via computer, have also emerged as the future for some criminal proceedings (and possibly more in the future). Thirdly, there has been an expansion of the use of trials in absentia which means that criminal trials may also increasingly take place in a defendant’s absence. All of these above shifts, while disparate, suggest that perhaps seeing presence as a precondition of criminal proceedings is an increasingly outmoded one.
This paper therefore tries to understand the implications of these changes for a defendant by shifting the conversation from presence to absence. Drawing on sociolegal and performance theory I consider the implications of absence in the criminal trial; asking, what happens when the defendant disappears?