United States v. Gagnon

In United States v. Gagnon, 470 U.S. 522 (1985), four codefendants were charged with conspiracy to distribute cocaine, a juror expressed concern that one of the four defendants had been sketching members of the jury during trial. (Id. at p. 523.) After ordering the defendant to stop his sketching, the trial court conducted an in camera hearing to ascertain whether the sketching had prejudiced the juror against the defendant. (Ibid.) The defendant's counsel was present during the hearing, but the defendant was not. (Id. at pp. 523-524.) Following the hearing, none of the defendants moved to disqualify the juror who had witnessed the sketching. (Id. at p. 524.) On appeal, each defendant claimed the trial court's in camera discussion with the juror in his absence violated (among other things) his right to be present at all stages of the trial. (Id. at pp. 524-525.) The Supreme Court said that "the defense has no constitutional right to be present at every interaction between a judge and a juror, nor is there a constitutional right to have a court reporter transcribe every such communication." Id. at 526. This is because the right to be present is largely derived from the defendant's right to confront witnesses against her. Ibid. Although the Court was directly addressing whether the defendant had a due process or confrontation right to be present, the analysis applies with equal persuasion regarding the appellant's right to have her counsel present. The Supreme Court explained that it has recognized that the right to be present does extend to some situations in which the defendant "is not actually confronting witnesses or evidence against him." Ibid.