HKB
heard a word of the evidence. It also did not overlook the fact the defendant "made no objection, asked for nothing, and permitted his counsel to take his own course."
That the presence of the accused may be dispensed with at various stages of criminal proceedings was further conceded by the Court in Frank v. Mangum,[947] wherein it held that the presence of the defendant when the verdict is rendered is not essential, and, accordingly, that a rule of practice allowing the accused to waive it and which bound him by that waiver did not effect any unconstitutional deprivation. Enumerating many departures from common law procedure respecting jury trials, including provisions waiving the presence of an accused during portions of a trial, the Court emphasized that none of these changes had been construed as conflicting with the Fourteenth Amendment. More recently, the Court, sustained, by only a five-to-four vote, however, a conviction for murder where the trial court rejected the defendant's request that he be present at a view of the scene of the murder to which the jury had been taken.[948] Acknowledging that it had never squarely held, though it now assumed, that "the privilege to confront one's accusers and cross-examine them face to face" in State court prosecutions "is reinforced by the Fourteenth Amendment," the majority devised the following standard for disposing of similar cases in the future. "In a prosecution for a felony," five Justices declared, "the defendant has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge. * * * The Fourteenth Amendment does not assume to a defendant the privilege to be present [when] * * * presence would be useless, or the benefit but a shadow. * * * The presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Employing this standard of appraisal, the majority therefore concluded that no harm or damage had been done to the accused by reason of his failure to be present when the jury viewed the site of the murder.[949]