(dissenting).
I respectfully dissent. I would conclude that Jason Finnegan’s midtrial hospitalization for a genuine medical emergency was not a voluntary and knowing absence from trial and that the trial court’s determination that he waived his constitutional right to be present was clearly erroneous. Furthermore, proceeding with trial in Finnegan’s absence was an abuse of discretion when an inquiry into the circumstances of his medical condition would have shown there was a very high likelihood that the trial could soon have taken place with him present. I would hold that Finnegan was improperly denied his right to be present at his trial, that the error was not harmless, and would grant a new trial.
I.
“In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him....” U.S. Const, amend. VI. “One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.” Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); cf. Harridan v. Rumsfeld, 548 U.S. 557, 624, 633-35, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) (invalidating special military commission that denied “one of the most fundamental protections” afforded by the Uniform Code of Military Justice and the Geneva Conventions: the right to be present).
The right to be present is also guaranteed by the Due Process Clauses in the Fifth and Fourteenth Amendments:
The Court has assumed that, even in situations where the defendant is not actually confronting witnesses or evidence against him, he has a due process right “to be present in his own person whenever his presence has a relation, *254reasonably substantial, to the fullness of his opportunity to defend against the charge.” Although the Court has emphasized that this privilege of presence is not guaranteed “when presence would be useless, or the benefit but a shadow,” due process clearly requires that a defendant be allowed to be present “to the extent that a fair and just hearing would be thwarted by his absence.”
Kentucky v. Stincer, 482 U.S. 780, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-08, 54 S.Ct. 330, 78 L.Ed. 674 (1934)).
The right to be present is one of those “basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client.” Taylor v. Illinois, 484 U.S. 400, 417-18, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). Nevertheless, the right can be lost by persistent disruptive conduct in the courtroom or by voluntary absence from trial. Allen, 397 U.S. at 343, 90 S.Ct. 1057 (courtroom conduct); Taylor v. United States 414 U.S. 17, 20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973) (voluntary absence). In Taylor v. United States, defendant was present for the morning session of the first day of trial but failed to return for the afternoon session. 414 U.S. at 17, 94 S.Ct. 194. The court recessed the trial until the following morning, but defendant still failed to appear. Id. Defendant’s wife testified that she had not heard from him since they left the courtroom the previous day and shared a taxicab. Id. The court found that defendant had absented himself voluntarily from the proceedings and ordered the trial to proceed without him. Id. at 17-18, 94 S.Ct. 194.
On certiorari review before the Supreme Court, there was no challenge to the trial court’s conclusion that defendant’s absence from trial was voluntary. Instead, defendant argued that “his mere voluntary absence” from trial could not be an effective waiver “unless it [was] demonstrated that he knew or had been expressly warned by the trial court not only that he had a right to be present but also that the trial would continue in his absence and thereby effectively foreclose his right to testify and to confront personally the witnesses against him.” Id. at 18-19, 94 S.Ct. 194. In rejecting this claim, the Court explained that it was patently obvious the defendant had the requisite knowledge:
It is wholly incredible to suggest that petitioner, who was at liberty on bail, had attended the opening session of his trial, and had a duty to be present at the trial, entertained any doubts about his right to be present at every stage of his trial. It seems equally incredible to us, as it did to the Court of Appeals, 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.
Id. at 20, 94 S.Ct. 194 (citation omitted) (internal quotation marks omitted).
II.
“[CJourts must indulge every reasonable presumption against the loss of constitutional rights.” Allen, 397 U.S. at 343, 90 S.Ct. 1057 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). Consequently, “[i]n deciding whether to try a defendant in absentia, the [trial] court must make factual findings to determine whether a defendant’s absence is knowing and voluntary.” United States v. St. James, 415 F.3d 800, 803-04 (8th Cir.2005). Upon determining that the absence is voluntary, the court then determines whether the public interest in proceeding with trial clearly outweighs the *255interests of the voluntarily absent defendant. Id. at 804.
The trial court has the obligation to safeguard the defendant’s fundamental right to be present at his own trial. State v. Cassidy, 567 N.W.2d 707, 711 (Minn.1997). “[W]hen a court concludes that the right is voluntarily waived, it must set forth with some specificity its rationale for finding the constitutional right voluntarily, and without justification, waived and the facts supporting the rationale so that its conclusion can be properly reviewed on appeal.” Id. (granting new trial when trial court failed to set forth rationale and factual basis for voluntariness determination).
The trial court’s factual findings that defendant’s absence was voluntary are reviewed for clear error. United States v. Bradford, 287 F.3d 1306, 1311 (11th Cir.2001). “The ultimate issue of voluntariness is a legal question requiring independent ... determination.” Campbell v. Wood, 18 F.3d 662, 672 (9th Cir.1994). The decision to proceed without á voluntarily absent defendant is reviewed for an abuse of discretion. United States v. Davis, 61 F.3d 291, 302 (5th Cir.1995).
III.
At 8:50 a.m. on Friday, May 5, 2006, after learning that Finnegan was still in bed, the trial court ordered law enforcement to “get Mr. Finnegan, get some proper clothes on him, and get him to this courtroom as soon as possible.” At 9:50 a.m., the State informed the court that Sergeant Fitzgibbons and another officer, dispatched to Finnegan’s home, found him incapacitated:
There was no motion of movement of his legs to actually get him-to walk; they simply cannot do that in transport. [Sergeant Fitzgibbons] believed it to be a medical condition. He said if it was a normal call, it would have been the case where he called the ambulance immediately. I indicated to do what he would normally do and he did call the ambulance. He believed, in his opinion, that ' it was likely an overdose because there was drooling at the mouth and the eyes were in the back of the head, that type of thing, so he was not able to speak at all to the defendant in any manner.
The State asked to proceed with trial in Finnegan’s absence, arguing that Finnegan was voluntarily absent:
I believe this was a choice. I don’t know if we want to wait for a medical confirmation of an overdose, but based on the defendant’s own' actions, obviously present yesterday, understanding what we were doing today, that it was a choice he made to be in a condition not to proceed .... [F]or the record, the State has witnesses and expenses.... [T]he BCA expert drove here from 5:00 this morning and is present, ready to go, and certainly other witnesses are inconvenienced today and ready to proceed as well...'. I would ask the Court to at least consider [Minn. R.Crim. P. 26.03] in us finishing up the trial without his presence.
Defense counsel responded:
We don’t know what the — what his medical condition is.... I think we need more information to prevent ... my client, from having the right to be present during this trial.... It’s his constitutional right to be present and we need to find out more as to why he’s in the hospital and what’s his condition.
The trial court then ruled that
[u]nder rule [26.03], subd. 2(1), I’m finding the defendant did voluntarily absent himself from trial. Clearly he was — had posted bond so he was out on his own— in his own volition and did something last night, according to his mother, and *256the officers that arrived at his home found him to be unresponsive. He was aware that we were in trial, he was aware that he was supposed to be here today, and I’m also finding that his behavior, because he’s not here, is disruptive. And there is case law that supports the fact that conduct is equivalent to a waiver of presence, and I’m finding that his conduct of choosing to overdose or whatever he did to make himself in a stupor today and not be here is conduct that is consistent with waiving his presence. And since we are in the trial and we’ve got the jury here and half of the evidence is in, we are going to go forward.
The evidentiary stage of the trial concluded around noon. Closing arguments, jury instructions, and jury deliberations followed the lunch break. At 4:39 p.m., the jury returned the guilty verdicts. Finnegan was released from the hospital two days later, Sunday, May 7, 2006. Medical records and subsequent psychological evaluation indicated that Finnegan’s midtrial hospitalization followed a suicide attempt.
Voluntary Absence
Trial courts “indulge every reasonable inference against a finding of voluntary absence.” United States v. Achbani 507 F.3d 598, 601 (7th Cir.2007). “Before proceeding, the district court must explore on the record any ‘serious questions’ raised about whether the defendant’s absence was knowing and voluntary.” Id. at 601-02 (quoting United States v. Watkins, 983 F.2d 1413, 1419 (7th Cir.1993)). Hospitalization due to illness raises serious questions as to whether the defendant’s absence is voluntary. See id. at 602 (citing United States v. Novaton, 271 F.3d 968, 996-97 (11th Cir.2001)).
In a number of cases, following a record inquiry, an absence from trial for medical reasons was deemed a deliberate attempt to avoid trial and therefore voluntary. In United States v. Barton, a multi-defendant trial, defendant Barton elected to undergo nonemergency spinal surgery on the eve of trial. 647 F.2d 224, 238 (2d Cir.1981). At the hearing on Barton’s motion for severance, Barton’s physician testified that he had diagnosed Barton’s condition some 17 months earlier, had thereafter unsuccessfully urged Barton to undergo surgery, and that Barton’s recent request for surgery came “out of the blue.” Id. The trial court determined that Barton’s absence was voluntary and proceeded with trial in his absence. Id. The Second Circuit found no error in the trial court’s conclusion. Id.
In United States v. Davis, another mul-ti-defendant trial, defendant McBride attended the first week of trial. 61 F.3d 291, 300 (5th Cir.1995). When trial reconvened on Monday, McBride was not present. Id. The government reported that McBride had checked herself into the hospital on Sunday after allegedly ingesting antidepressants. Id. The trial court granted a recess to allow McBride’s counsel a chance to talk to her and her physician, and apparently the court talked to the physician as well. Id. The court determined the absence was voluntary; but “in an abundance of caution,” the court again spoke to McBride’s physician before reconfirming its determination and proceeding with trial in her absence. Id. at 300. In affirming, the Fifth Circuit concluded that “McBride’s failure to appear after the court delayed the trial a day and a half was a knowing and voluntary waiver of her right to be present.” Id. at 303.
In United States v. Edwards, again a multi-defendant trial, defendant Johnson postponed bypass surgery, believing it was in his strategic interest “to go to verdict” with the other defendants. 303 F.3d 606, 625, 629 (5th Cir.2002). Nearly two *257months into the trial, when the government began presenting evidence particularly damaging to Johnson, his medical condition worsened and surgery was required. Id. at 625. The government moved for trial in absentia; defense counsel initially moved for a continuance but then shifted positions and moved for a mistrial. The trial court held conferences, heard from Johnson’s physicians, and postponed the trial for a week. Id. In denying Johnson’s motion for mistrial, the court offered many accommodations, including frequent breaks, the presence of a nurse, participation through audio and video feeds, an additional attorney to advise Johnson from home, all at the court’s expense, and permitting Johnson to testify as the last witness; but Johnson declined them. Id. at 626. Ultimately, the court granted the government’s motion for trial in absentia, concluding that Johnson’s absence was voluntary. Id. at 627. The court found that Johnson postponed surgery to gain a tactical advantage and that post-surgery legal maneuvers were “indicative of an unwillingness rather than an inability to continue with the trial.” Id. In affirming, the Fifth Circuit concluded that the trial court’s “determination that Johnson’s absence was voluntary [was] not clearly erroneous.” Id. at 629.
In other cases, an absence from trial caused by a genuine medical emergency was determined involuntary. In United States v. Latham, a single-defendant trial, defendant Latham was present for the first day but failed to appear in court at 9:00 a.m. the next day. 874 F.2d 852, 854 (1st Cir.1989). In chambers, the court inquired as to Latham’s whereabouts, revoked Latham’s bail, and issued a bench warrant for his arrest. Id. The chambers conference reconvened at 10:13 a.m. Id. The court noted that in the interim the United States Marshal’s Office had been informed that Latham had boarded a plane bound for Chicago. Id. at 854-55. The court concluded that Latham had voluntarily absented himself and recommenced the trial at 10:30 a.m. Id. at 855.
The information about Latham’s flight was false. Id. Latham had been hospitalized, in critical condition, due to a cocaine overdose; nevertheless, the trial court denied Latham’s motion for a new trial. Id. On appeal, the First Circuit rejected the trial court’s determination of a voluntary absence:
It defies common sense to maintain that a sane defendant would attempt suicide to avoid a trial on drug charges. And, death is not the type of “voluntary absence from trial” that concerns us. Alternatively, if one were to find that La-tham knew just the right amount of cocaine to ingest, so as to require hospitalization, but avoid death, it would still make no sense for him to have pursued this course because he would end up in custody (hospitalized) and upon recovery would still have to stand trial. This situation is markedly different from fleeing to avoid the trial altogether.
Id. at 858. The First Circuit held that Latham’s ingestion of an overdose of cocaine did not constitute a voluntary absence from trial. Id. at 859.
In United States v. Novaton, a multi-defendant trial, defendant Rosell was hospitalized twice due to a sudden, incapacitating illness. 271 F.3d 968, 994 (11th Cir.2001). The trial court denied repeated motions from Rosell’s counsel for a continuance or mistrial. Id. at 995-96. The Eleventh Circuit reversed and remanded for a new trial, finding clear error in the trial court’s determination that Rosell’s absence was voluntary. Id. at 1000. The Eleventh Circuit noted that the voluntariness determination was made before the trial court had “much information about *258Rosell’s condition” and that there was no dispute “Rosell’s ailments during the last week of his trial were real. There is no contention that this is a case in which a defendant was faking an illness or otherwise attempting to scuttle a trial.” Id. at 996-97.
Here, there was no inquiry into the circumstances of Finnegan’s medical condition and no rationale, much less a factual basis, for the trial court’s conclusion of a voluntary and knowing absence. See Cas-sidy, 567 N.W.2d at 710 (requiring a trial court to set forth a specific rationale and sufficient facts to support finding that a defendant’s absence is voluntary and noting that an inadequate record makes review “virtually impossible”). The trial court failed to make the necessary inquiry to determine whether Finnegan’s absence was voluntary. Moreover, there was no dispute that Finnegan’s hospitalization was due to a genuine medical emergency. I would conclude that Finnegan’s absence from trial was not voluntary. See Latham, 874 F.2d at 859; Rice v. Wood, 44 F.3d 1396, 1400-01 (9th Cir.1995) (holding that absence due to hospitalization after ingestion of liquid nicotine was involuntary), vacated in part on other grounds, 77 F.3d 1138, 1145 (9th Cir.1996); cf. State v. Anene, 149 Wash.App. 944, 205 P.3d 992, 998 (2009) (holding that continuing with trial in absence of defendant who was comatose following suicide attempt violated due process).
Abuse of Discretion
The trial court’s determination of a voluntary absence does not end the inquiry. The Minnesota Rules of Criminal Procedure augment a defendant’s constitutional right to be present at trial. Under Minn. R.Crim. P. 26.03, subd. 1, a defendant’s presence at trial is required unless the defendant is absent without justification. When a defendant is absent voluntarily and without justification, the trial court may proceed in the defendant’s absence.1 Therefore, after determining that a defendant’s absence is voluntary and without justification, a trial court exercises discretion in deciding whether to continue trial.
“A trial court has ‘only a narrow discretion in deciding whether to proceed with a trial when the defendant is [absent] because the right to be present at one’s own trial must be carefully safeguarded.’ ” Cassidy, 567 N.W.2d at 710 (quoting United States v. Benavides, 596 F.2d 137, 139 (5th Cir.1979)). When exercising that discretion, many courts continue with trial only *259when the public interest in proceeding with trial clearly outweighs the interests of the voluntarily absent defendant in attending his trial. See, e.g., St. James, 415 F.3d at 804. In deciding whether to proceed, the court determines a “complex of issues,” including “the likelihood that the trial could soon take place with the defendant present; the difficulty of rescheduling, ... [and] the burden on the Government....” United States v. Tortora, 464 F.2d 1202, 1210 (2d Cir.1972); see also Benavides, 596 F.2d at 140 (recognizing Tortora factors and adding inconvenience to jurors); cf. Cassidy, 567 N.W.2d at 712 (“Once a trial court properly finds waiver, we must determine whether it appropriately exercised its discretion in concluding that there was a controlling public interest in the continuance of the trial in the absence of the defendant.”) (Tomljanovich, J., dissenting).
The Tortora/Benavides balancing approach gives effect to Fed.R.Crim.P. 43, a similarly worded version of Minn. R.Crim. P. 26.03. Clark v. Scott, 70 F.3d 386, 389-90 (5th Cir.1995). Courts from other jurisdictions have employed the balancing approach under the federal rule and analogous state rules in deciding whether to proceed with trial when the defendant was voluntarily absent. E.g., Bradford, 237 F.3d at 1314; United States v. Nichols, 56 F.3d 403, 417-18 (2d Cir.1995); Latham, 874 F.2d at 859; United States v. Rogers, 853 F.2d 249, 252 (4th Cir.1988); Bradshaw v. State, 806 A.2d 131, 136-37 (Del.2002); State v. Clements, 108 N.M. 13, 765 P.2d 1195, 1200-01 (N.M.Ct.App.1988); People v. Parker, 57 N.Y.2d 136, 454 N.Y.S.2d 967, 440 N.E.2d 1313, 1317 (1982). But see United States v. Houtchens, 926 F.2d 824, 827 (9th Cir.1991); Moore v. State, 670 S.W.2d 259, 261 (Tex.Crim.App.1984); State v. Thomson, 123 Wash.2d 877, 872 P.2d 1097, 1100-01 (1994). The Tortora/Benavides approach affords courts the necessary breathing space to ascertain the explanation for the defendant’s absence, and consider the likelihood the trial could soon proceed with the defendant present, the difficulty of rescheduling, and the burden on the government.
As Finnegan contended in his briefs to the court of appeals and this court, the trial court should have considered whether the public interest in proceeding with trial clearly outweighed his interest in attending trial. On balance, I would conclude that Finnegan’s interest was greater here. Even assuming Finnegan voluntarily absented himself from trial on Friday, had there been an inquiry into his medical status and the difficulties and burdens in continuing the trial on Monday, there was a very high likelihood the trial could have taken place with Finnegan present. Finnegan was convicted in his absence of a particularly serious offense. The mandatory minimum prison term for an offender like Finnegan with a criminal history score of zero is 144 months, roughly the equivalent for second-degree murder, followed by the prospect of indeterminate civil commitment. Minn.Stat. §§ 253B.02, subd. 18(c), 253B.18, subd. 3, 609.342, subd. 2(b) (2008); Minn. Sent. Guidelines IV.
Overall, I would conclude that Finnegan’s absence was not voluntary because it was due to a genuine medical emergency. I would further conclude that proceeding with trial in Finnegan’s absence was an abuse of discretion, given the minimal delay that might have been required to proceed with Finnegan present. I would hold that proceeding with trial in Finnegan’s absence was constitutional error and an abuse of discretion.
IV.
Structural Error
“ ‘[M]ost constitutional errors can be harmless.’ ” Neder v. United States, 527 *260U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). “ ‘[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.’ ” Id. (quoting Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)). In rare cases, however, an error is designated as structural, requiring automatic reversal. Typically, structural error “necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Rivera v. Illinois, - U.S. -, 129 S.Ct. 1446, 1455, 173 L.Ed.2d 320 (2009) (citations omitted) (internal quotation marks omitted).2 Proceeding with crucial government testimony and concluding the trial in Finnegan’s absence may well be one of those rare situations that could be designated as structural error.
Harmless Error
“[T]here may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Id. at 24, 87 S.Ct. 824. “The State bears the burden of proving that an error passes muster under this standard.” Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); see also Chapman, 386 U.S. at 24, 87 S.Ct. 824 (“[T]he original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.”).
“[0]nce the defendant has established a violation of that right [to be present] his conviction is unconstitutionally tainted and reversal is required unless the State proves the error was harmless beyond a reasonable doubt.” Novaton, 271 F.3d at 998-99 (quoting Proffitt v. Wainwright, 685 F.2d 1227, 1260 n. 49 (11th Cir.1982)). The State makes no claim that proceeding with trial in Finnegan’s absence was harmless. Given that Finnegan lost the right to personally confront five government witnesses, lost the right to testify or personally waive that right, and lost the right to be present for the return of the verdicts, prejudice was clearly evident. See Novaton, 271 F.3d at 999 (noting that defendant missed “crucial” stages of his trial, including testimony of witnesses called by the government and witnesses called by some codefendants). I would conclude that Finnegan’s rights under the Confrontation *261Clause and Due Process Clause were violated by continuation of the trial in his absence, that the violations were not harmless beyond a reasonable doubt, and therefore that a new trial is required.
V.
I disagree with the majority’s framework for trial in absentia that, as I understand it, (1) requires an expeditious determination on voluntariness of the absence from trial; (2) allows the defendant an opportunity, in postconviction proceedings, to explain his absence; and (3) “if on post-conviction, the defendant meets his burden to demonstrate that his absence was involuntary, he would be entitled to a new trial unless the court could conclude that the erroneous continuation of the trial without the defendant was harmless beyond all reasonable doubt.” State v. Finnegan, 784 N.W.2d 243, 251 (Minn.2010).
People v. Connolly, cited by the majority, involved a defendant who failed to appear in court on the second day of his trial. 36 Cal.App.3d 379, 111 Cal.Rptr. 409, 411 (1973). After delaying the trial 4-1/2 hours, the court held a hearing at which defendant’s wife and neighbor testified that they were unable to locate defendant despite a search in those places they reasonably expected him to be. Id. Neither the prosecutor nor defense counsel had received any calls from defendant. Id. The trial court found defendant was voluntarily absent and proceeded with trial. Id.
Defendant moved for a new trial and provided an explanation for his absence that “border[ed] on the inherently incredible.” Id. at 413-14. In affirming the vol-untariness determination, the California Court of Appeal said:
When looking to the initial proceedings involving the determination to proceed with trial, sufficient facts must be before the court to establish what reasonably appears to be a prima facie showing of voluntary absence. In the usual case a continuation of at least a few hours in order to locate defendant is appropriate. Once the defendant is again before the court he may challenge the propriety of proceeding in his absence. In this regard he can testify and present other evidence on the issue of whether his absence was in fact voluntary. On appeal the reviewing court must determine, on the whole record, whether defendant’s absence was knowing and voluntary.
Id. at 412-13.
State v. Thomson, also cited by the majority, involved a defendant who notified his attorney’s office that a medical emergency would prevent his presence in court that day. 123 Wash.2d 877, 872 P.2d 1097, 1099 (1994). Defendant’s mother, with whom he lived, had not heard from him and did not know where he was. Id. The court delayed trial so that defendant might be located. Id. When the court reconvened, defendant was still absent. Id. The court found defendant’s absence was voluntary, stating that an additional 3-1/2 hours had passed without any indication where defendant might be, and proceeded with the trial. Id.
The Washington Supreme Court affirmed, stating that under its voluntary waiver approach, the court only needs to answer one question: “whether the defendant’s absence is voluntary.” Id. at 1100.
The trial court will
(1) [make] sufficient inquiry into the circumstances of a defendant’s disappearance to justify a finding whether the absence was voluntary,
(2) [make] a preliminary finding of vol-untariness (when justified), and
(3) [afford] the defendant an adequate opportunity to explain his absence when *262he is returned to custody and before sentence is imposed.
Id.
Both Connolly and Thomson require inquiry into the circumstances of the defendant’s absence sufficient to justify an initial finding of a voluntary absence and an opportunity prior to sentencing to “challenge” or “rebut” the voluntariness determination. Neither Connolly nor Thomson suggests that the voluntariness determination be made in haste or place the burden on the defendant to demonstrate, in a post-conviction proceeding, that the absence was involuntary and, if so, that the error in proceeding in his absence was not harmless beyond a reasonable doubt.
Clearly, the defendant who absconds, and who cannot be located despite all reasonable efforts, should have the burden of showing that his absence from trial was not voluntary. In that situation, the factual basis for a claim of an involuntary absence would be particularly within the defendant’s knowledge. E.g., Cassidy, 567 N.W.2d at 710 (stating that defendant who absconded midtrial had the burden of showing that his absence was involuntary). But when the defendant’s absence is due to a medical emergency and his whereabouts are known, given the trial court’s obligation to safeguard the defendant’s right to be present, inquiry should be made as to the defendant’s medical status and the likelihood of continuing the trial without undue delay with the defendant present.
The majority states that Finnegan “had the opportunity to demonstrate that his absence was involuntary both at the hearing on May 8, and at the postconviction stage,” but failed to “avail himself of either of these opportunities.” 784 N.W.2d at 251. At the May 8 court appearance, the following occurred:
THE COURT: Mr. Finnegan, just to let you know, it was the Court’s determination that it was by your own willful acts that you failed to appear for the second day of your trial. And because of your own acts, you made yourself unavailable and our jury was seated, the trial was nearly completed, and it was my decision that we would go forward with the trial without your presence, so that’s what we did. [Defense counsel], any comments?
[DEFENSE COUNSEL]: Just for the record, your Honor, we would demand a new trial in this matter given that he wasn’t available.
THE COURT: All right. So noted. [Prosecutor]?
[PROSECUTOR]: Obviously State opposes, your Honor.
THE COURT: Well, I’m going to deny your motion. We’ll see you back here on June 16. Mr. Finnegan, your sex offender evaluation will really — the results of that evaluation will be determinant on your ability to be truthful and open with your evaluator, so I suggest that you do that. All right?
MR. FINNEGAN: Yep.
THE COURT: Okay. Thank you.
The proceedings then concluded. I do not read that Rule 3 exchange as an opportunity for Finnegan to explain his absence, much less demonstrate that his absence was legally involuntary. See Minn. R.Crim. P. 3.02.
As for the postconviction stage, this appeal is Finnegan’s first substantive review. “[A] first review by postconviction proceeding is substantially similar in scope to a direct appeal.” Deegan v. State, 711 N.W.2d 89, 94 (Minn.2006).3 In a first *263review by postconviction, we review the findings and conclusions of the trial court and the postconviction court. Butala v. State, 664 N.W.2d 333, 339-41 (Minn.2003) (reviewing trial court’s and postconviction court’s findings and conclusions on presen-tence motion to withdraw guilty pleas). Whether the appeal is from the judgment or from a postconviction order, we review factual findings for clear error and questions of law de novo. E.g., Doppler v. State, 771 N.W.2d 867, 875 (Minn.2009) (reviewing factual findings for clear error in postconviction appeal); Bonga v. State, 765 N.W.2d 639, 642 (Minn.2009) (reviewing questions of law de novo in postconviction appeal); State v. Brown, 606 N.W.2d 670, 674-75 (Minn.2000) (reviewing trial court’s factual findings for clear error and questions of law de novo in direct appeal).
“[W]hen a constitutional right as fundamental as the right to be present at one’s own trial is implicated, the trial court has an obligation to safeguard that right.” Cassidy, 567 N.W.2d at 711. Judicial restraint and caution require inquiry into the circumstances of an absence from trial due to a medical emergency. E.g., Davis, 61 F.3d at 300-01. When a court concludes the absence is voluntary, “it must set forth with some specificity its rationale for finding the constitutional right voluntarily, and without justification, waived and the facts supporting the rationale so that its conclusion can be properly reviewed on appeal.” Cassidy, 567 N.W.2d at 711 (emphasis added); accord St. James, 415 F.3d at 804 (“the [trial] court must make factual findings to determine whether a defendant’s absence is knowing and voluntary” (emphasis added)). To give effect to the discretion granted to the court under Minn. R.Crim. P. 26.03, subd. 1(2), I would add the Tortora/Benavides balancing approach to the inquiry.4
In my view, the Cassidy record inquiry into the circumstances of the defendant’s absence from trial and a balancing of the respective interests and concerns would be *264a far more efficient use of judicial resources than expending additional resources in postconviction hearings aimed at reclaiming the constitutional right. More fundamentally, the record inquiry maintains the obligation in safeguarding the basic right to be present with the trial court. Transferring that responsibility to the defendant when a trial court disregards the Cassidy mandate devalues Cas-sidy.
In summary, I would conclude that Finnegan’s midtrial hospitalization on Friday due to a genuine medical emergency was not voluntary; that the trial court’s conclusion to the contrary, made without inquiry, was clearly erroneous; and that the error was not harmless in view of the critical stages of trial Finnegan missed. I would also conclude that proceeding with trial in Finnegan’s absence was an abuse of discretion where inquiry into his medical status and the difficulties in continuing the trial on Monday would have indicated there was a very high likelihood the trial could have taken place with Finnegan present. In light of all the circumstances in this case, I would hold that Finnegan was wrongly deprived of his right to be present at his own trial and grant a new trial.
. The version of Minn. R.Crim. P. 26.03, subd. 1(2) effective at the time of Finnegan's trial provides:
(2) Continued Presence Not Required. The further progress of a trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to waive the right to be present whenever:
1. a defendant voluntarily and without justification absents himself or herself after trial has commenced.
This version of the rule is based on a similarly worded prior version of Fed.R.Crim.P. 43. Minn. R.Crim. P. 26 cmt. (2009). The prior version of the federal rule has been read as affording the court discretion to proceed in the defendant’s absence and not as a mandate to do so. See, e.g., St. James, 415 F.3d at 804; Edwards, 303 F.3d at 629; Latham, 874 F.2d at 859-60. Advisory Committee Notes dating back to the federal rule’s adoption in 1944 underscore that the district court exercises discretion in determining whether to proceed in a defendant's voluntary absence. See Fed. R.Crim.P. 43 advisory committee's note.
On January 1, 2010, Minn. R.Crim. P. 26.03 was amended. The current version provides that a “trial may proceed to verdict without the defendant's presence if [t]he defendant is absent without justification.” Minn. R.Crim. P. 26.03, subd. 1(2). The current version more directly states that Minn. R.Crim. P. 26.03 provides district courts discretion in determining whether" to proceed in a defendant's absence.
. E.g., Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (constitutionally deficient reasonable-doubt instruction); Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in grand jury selection); Faretta v. California 422 U.S. 806, 835-36, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (denial of self-representation); Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (complete denial of counsel); Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (denial of impartial judge). Minnesota cases directly implicate structural error analysis in cases regarding a judge's role in trial proceedings. We have held that structural error occurs when a defendant is absent when a judge communicates with deliberating jurors. Brown v. State, 682 N.W.2d 162, 168 (Minn.2004) (holding that trial judge's visits to jury room during deliberations, in violation of defendant's right to be present at all stages of the proceedings, required automatic reversal); State v. Mims, 306 Minn. 159, 169-70, 235 N.W.2d 381, 388 (1975) (same).
. Generally, a direct appeal must be taken within 90 days after final judgment. Minn. *263R.Crim. P. 28.02, subd. 4(3). Judgment of Finnegan's conviction was entered on June 16, 2006. An indigent wanting to appeal must make application to the State Public Defender, who determines whether the applicant is eligible for representation. Id., subd. 5(1), (5). Finnegan did not appeal from the judgment. On September 7, 2007, he filed a petition for postconviction relief through counsel from the Office of the State Public Defender.
. This is not a break from precedent. Minnesota has neither adopted nor rejected the Tortora/Benavides balancing approach. In Cassidy, the record was insufficient for determining the voluntariness of defendant's absence. 567 N.W.2d at 710-11. In State v. Gillam, defendant lost his right to be present by persistent disruptive conduct in the courtroom. 629 N.W.2d 440, 451-52 (Minn.2001). In State v. Worthy, defendants fired their court-appointed attorneys and refused to participate in the trial despite the court's endeavors to obtain their presence, all as part of a tactical attempt to delay their trial. 583 N.W.2d 270, 277-78 (Minn.1998). As I read Worthy, we collapsed the inquiry, concluding defendants' absence to have been voluntary and trial in absentia not an abuse of discretion for the same reason: defendants were simply trying to delay their trial. Id. Additionally, Rule 26.03 clearly affords district courts discretion in determining whether to proceed without a voluntarily absent defendant. The Tortora/Benavides approach offers a sound manner in which to exercise that discretion. The approach includes "[a] number of factors [that] help to determine if there is a controlling public interest in the continuation of a trial. These factors include the likelihood that the trial can take place with the defendant present, the difficulty of rescheduling, the burden on the government and inconvenience to jurors.” Cassidy, 567 N.W.2d at 712 (Tomljanovich, J., dissenting) (citations omitted) (internal quotation marks omitted). Neither Rule 26.03 nor precedent requires, as the majority suggests, that a court continue with trial once a defendant's absence is determined to be voluntary.