A service member can be tried by court-martial in absentia (in their absence), but only if specific and strict procedural safeguards are met to protect their constitutional rights. The fundamental principle is that the accused’s absence must be voluntary and without a valid cause. A trial cannot proceed if the member is absent due to a medical emergency or other legitimate reason. The military judge must first make a formal finding on the record that the absence is both knowing and unauthorized.
The primary safeguard is the accused’s right to counsel. If the accused was present at the arraignment (the formal reading of the charges), where they were advised of the trial date and their rights, and then voluntarily absents themselves, the trial can proceed. Their military defense attorney will still be present and is required to represent the accused’s interests throughout the trial. The attorney will continue to make motions, cross-examine government witnesses, object to evidence, and present any defense that had been planned, acting on behalf of their absent client.
Furthermore, the government still has the full burden of proving the accused’s guilt beyond a reasonable doubt, even without the accused being present. The defense counsel will hold the prosecution to this high standard. If the accused is convicted and sentenced in absentia, they retain their full post-trial and appellate rights. Once they return to military control, their attorney can file motions and appeals on their behalf. These safeguards ensure that a voluntary absence is not treated as a confession of guilt and that the integrity of the trial process is maintained.