(concurring in part and in the result):
I concur in Part II of the majority opinion, but I write separately to express my rationale for concurring in the disposition of Issue I.
RCM 804(b), Manual for Courts-Martial, United States, 1984, provides that, once an accused has been arraigned, the trial may proceed and the accused “shall be considered to have waived the right to be present whenever” such an accused “[i]s voluntarily absent after arraignment (whether or not informed by the military judge of the obligation to remain during the trial)____” There is no suggestion here that appellant’s absence was involuntary, so the literal requirement of the rule is met.1
Nonetheless, a constitutional issue lingers beneath the surface of this rule that the majority does not, in my view, adequately address. According to Crosby v. United States, — U.S. —, —, 113 S.Ct. 748, 751, 122 L.Ed.2d 25 (1993), the Supreme Court, in Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912), “authorized a limited exception to the general rule” at common law that no felony trial may occur in absentia, “an exception that was codified eventually in [Fed.R.Crim.P.] 43(b)”—an exception for a case in which, at the time of the initiation of the absence, the trial had “already commenced.” In Crosby, decided earlier this Term, the Supreme Court pointed out that Diaz, like the case then at bar, involved midtrial flight, as opposed to pretrial flight, and treated “midtrial flight as a knowing and voluntary waiver of the right to be present.” — U.S. at —, 113 S.Ct. at 752 (emphasis added). Thus, it is clear to me that the Supreme Court will constitutionally require that any purported waiver of the *39right to be present at trial be both voluntary, as RCM 804 requires, and knowing.2
It would seem that a knowing waiver in this regard, at a minimum, would require some notice to the accused of at least the general point at which the proceedings would resume (at least if the hiatus is to be lengthy), see United States v. Peebles, 3 MJ 177 (CMA 1977), and some notice that, even in his absence, the proceedings would continue.3 I agree with the majority’s discussion of this first element, but I am concerned that the majority does not acknowledge at all the second element.
As to midtrial flight, the Crosby Court reasoned: “It is unlikely ... ‘that a defendant who flees from a courtroom in the midst of a trial—where judge, jury, witnesses and lawyers are present and ready to continue—would not know that as a consequence the trial could continue in his absence.’ ” — U.S. at —, 113 S.Ct. at 752, quoting United States v. Taylor, 478 F.2d 689, 691 (1st Cir.1973), quoted with approval in Taylor v. United States, 414 U.S. 17, 20, 94 S.Ct. 194, 196, 38 L.Ed.2d 174 (1973). The situation arguably is much different where the flight is not midtrial in the sense described by the Supreme Court, and where the record is otherwise devoid of any indication that the absent accused knew that, even in his absence, trial would proceed.4
As the Chief Judge points out, this Court as long ago as United States v. Houghtaling, 2 USCMA 230, 8 CMR 30 (1953), has viewed arraignment in the military justice system as the commencement of trial. It may be that, in certain cases like this one, the trial of the merits does not actually begin immediately after arraignment, though more usually than not it does. At the same time, a military accused is arraigned by a military judge, rather than a Federal magistrate, and that gives special force to the argument that the subsequently absent military accused has “by his own act remove[d] himself from the presence of a court trying him on a criminal charge____” Id. at 234, 8 CMR at 34.
Given these differences between the usual operation of the military justice system and the Federal civilian system, I see no compelling reason to deviate from the Houghtaling notion that, in the military justice system, arraignment constitutes commencement of the trial for purposes of marking the point after which an accused may be tried even though voluntarily absent. As well, I am satisfied, for these same reasons, that a military accused who absents himself after arraignment has done so just as knowingly as has a civilian defendant in the midst of trial.
. I notice that the Discussion that follows RCM 804(b) states:
The prosecution has the burden to establish by a preponderance of the evidence that the accused’s absence from trial is voluntary. Voluntariness may not be presumed, but it may be inferred, depending on the circumstances'. ...
I have some concern that the majority opinion—speaking as it does in terms of a defense "burden of going forward" and concluding as it does "that the defense” here “did not meet this burden,” 38 MJ at 37—might mislead a reader into thinking that voluntariness may be presumed. But see reference to Discussion in this note.
. So that practitioners may not be misled in applying RCM 804, it might be advisable to incorporate into the rule the constitutional requirement that a waiver must be knowing.
. Typically, a military judge will expressly advise an accused that, inasmuch as he has been arraigned, trial may proceed in his absence on the scheduled date. For some reason not re-fleeted in the record, this military judge failed to given such advice—thus, the issue.
. Indeed, it was just such a case that was offered to the Supreme Court in Crosby, but the Court declined to answer the constitutional question in light of its decision there that the trial violated Fed.R.Crim.P. 43. Crosby v. United States, — U.S. —, —, 113 S.Ct. 748, 753, 122 L.Ed.2d 25 (1993).