UNITED STATES SUPREME COURT DECISIONS ON-LINE

At a recess during respondents' Federal District Court trial for participation in a cocaine distribution conspiracy, the bailiff informed the judge -- in the presence of respondents, their respective counsel, and the Assistant United States Attorney, but outside the jury's presence -- that one of the jurors had expressed concern because he had noticed respondent Gagnon sketching jurors during the trial. After Gagnon's attorney admitted that Gagnon had been sketching jurors, the judge ordered that the practice cease immediately, and, upon such attorney's suggestion, the judge stated that she would speak with the juror in chambers. No respondent filed any objection or requested to be present at the discussion in chambers. At the in camera meeting, which Gagnon's counsel attended, the juror was informed that Gagnon was an artist and meant no harm, that the sketchings had been confiscated, and that Gagnon would sketch no more. The juror, upon being questioned by the judge and by Gagnon's counsel, indicated his willingness to continue as an impartial juror. The trial then resumed; a transcript of the in camera proceeding was made available to all of the parties; no objections to the proceeding or motions to disqualify the juror were made; and, after guilty verdicts were returned against all of the respondents, no post-trial motions concerning the incident were made. On a consolidated appeal, the Court of Appeals reversed all of the respondents' convictions, holding that the in camera proceeding violated their rights under Federal Rule of Criminal Procedure 43 to be present "at every stage of the trial," as well as their right to be present under the Due Process Clause of the Fifth Amendment.

Held:

1. Respondents' rights under the Fifth Amendment Due Process Clause were not violated by the in camera discussion with the juror. The defense has no constitutional right to be present at every interaction between a judge and a juror. The right to presence, while rooted to a large extent in the Confrontation Clause of the Sixth Amendment, is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him. However, a defendant's presence is a condition of due process only to the extent that a fair and just hearing would be thwarted by his absence. Here, the presence of respondents and their counsel at the in camera clubjuris

Page 470 U. S. 523

discussion was not required to ensure fundamental fairness or a reasonably substantial opportunity to defend against the charge.

2. Assuming that the conference with the juror was a "stage of the trial" for purposes of Rule 43, the Court of Appeals erred in concluding that respondents had not waived their rights under the Rule to be present at the conference. Respondents neither requested to attend the conference nor, either before or after the conference, filed any objections to or motions concerning the conference. A district court need not get an express waiver from a defendant for every trial conference which a defendant may have a right to attend. The conclusion that respondents waived their Rule 43 rights comports both with the Rule's language and with the every-day practicalities of conducting a trial.

Certiorari granted; 721 F.2d 672, reversed.