with whom MATTHEWS, Justice, joins, dissenting.
Today the court affirms Ty Douglas's conviction despite the fact that he was barred from attending his own trial and denied the opportunity to testify in person on his own behalf. Although it is certainly true that Douglas had been disruptive in the courtroom in the past, the trial court failed to give him a single opportunity to honor his promise to behave appropriately in front of the jury. Because the law demands that more respect be given to a defendant's right to attend his trial, and in particular to give live testimony if he so chooses, I would reverse Douglas's conviction. |
As the court recognizes, a defendant's right to attend his trial "is rooted in the right to confront adverse witnesses and the right to due process of law" under both the United States and Alaska constitutions.1 The Supreme Court of the United States has said that "the accused's right to be present in the courtroom at every stage of his trial" is "[one of the most basic of the rights guaranteed by the Confrontation Clause."2 In recent years the Supreme Court has steadfastly refused to "relax the requirements of the Confrontation Clause to accommodate the necessities of trial and the adversary process,"3 stressing that "there is something deep in human nature that regards face-to-face confrontation between accused and accuser as essential to a fair trial in a criminal prosecution." 4 And we ourselves have noted *329that "the defendant's presence at all stages of the trial ... promotes the perception and reality of fairness in the trial process."5 Because such an important and deeply rooted right should not be abridged lightly, any limitations placed on a criminal defendant's ability to attend his trial in person should be no more restrictive than is necessary to accomplish the purpose they serve.6
In TIilinois v. Allen the Supreme Court grappled with the question of what a trial judge can do to reduce the disruption caused by an unruly defendant like Douglas without running afoul of his constitutional right to be present during his trial.7 As the court acknowledges today, "Allen sets minimal standards that we must apply whether the defendant relies on the federal or state constitution." 8 The treatment of Douglas failed to meet the minimal federal standards set by Allen.
Under Allen, one constitutionally permissible method of controlling a disruptive defendant is to exclude him from the courtroom "until he promises to conduct himself properly."9 The Allen Court stressed that "the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings." 10 After being removed once, the defendant in Allen was permitted to reenter the courtroom upon his request to do so and a warning that he would be removed again if he did not behave.11 After acting out and being removed a second time, the trial judge "reiterated his promise to Allen that he could return to the courtroom whenever he agreed to conduct himself properly" and onee Allen "gave some assurances of proper conduct" he "was permitted to be present throughout the remainder of the trial"12 The Allen Court favorably noted the fact that the trial judge "constantly informed [Allen] that he could return to the trial when he would agree to conduct himself in an orderly manner." 13
Excluding an unruly defendant from the courtroom as described in Allen is analogous to holding an obstinate individual in civil contempt of court. As is the case with civil contempt, the purpose of the exelusion is remedial, rather than punitive-the defendant is excluded not to punish him for his outbursts, but to ensure an orderly trial.14 And just as a civil contempt defendant "carries the keys to his or her imprisonment (or punishment) in his or her own pocket,"15 Allen requires that a defendant excluded from his trial be given the means to redeem himself and regain his right to be present in the courtroom. Though Douglas's pretrial antics were sufficiently inappropriate to justify his initial exclusion, he was never given the "keys" to his metaphorical cell.
*330After being barred from the courtroom due to his misbehavior, Douglas asked to be allowed back in and promised to "show [him-Jself calmly." But the superior court did not allow Douglas even a single opportunity to reenter, and onee the trial began it did not inform Douglas of anything he could do to reclaim his right to be present. In fact, the superior court repeatedly and unequivocally expressed its unwillingness to even consider allowing Douglas into the courtroom: "I don't have any intention of bringing Mr. Douglas into the courtroom while the jury is in the courtroom," "[i]t just ain't going to happen," "I'm not going to bring him in here," and "I can't bring Mr. Douglas in here." 16
The court recognizes that under Allen "defendants must be allowed to reclaim the right to attend their trial by altering their behavior" 17 and that "it would be error to indefinitely bar a defendant from attending their trial or sentencing proceedings based merely upon their past misconduct and the surmise that the disruptive conduct may continue.18 Yet the court nonetheless affirms Douglas's conviction despite the fact that he was "indefinitely" barred from his trial without ever once being "allowed to reclaim the right to attend." The court reaches this result by drawing a fine distinction between a defendant who "promises" to behave and a defendant who is "willing" to behave, concluding that although Douglas promised to conduct himself properly, he was not truly "willing" to do so.19 I do not believe that Allen allows such a fine distinction to be drawn-in my view, Allen requires a trial court to at least provisionally honor a defendant's promise to behave even when his behavior has been as egregious as Douglas's.
But even if Allen does allow some promises to be disregarded, Douglas's promise to behave demonstrated sufficient self-aware ness and understanding of the importance of making a good impression on the jury (if not on the judge and attorneys) to merit at least a single chance to regain his right to attend his trial. Although, as highlighted by the court, Douglas expressed an unwillingness to behave during pretrial proceedings in the absence of the jury, he nonetheless unequivocally stated his intent to remain calm in the presence of the jury, recognizing that the jury would be deciding his fate. Douglas pointed out to the trial court that he "didn't act up in front of the jury [during his prior trial] until after the verdict" and that he "sat there through the whole trial." He explained, "I didn't want to mess up in front of the [prior] jury and I don't want to mess up in front of this jury," "I'm not going to sabotage myself in front of the jury," "(there's no reason for me to get upset in front of that jury," and "I don't want to make those people upset." He also showed self-awareness regarding his misbehavior when he stated that although he could "show [him-Iself calmly" to the jury during the trial, the court shouldn't "bring [him] back in there for the reading of the verdict" because if found guilty he would "be upset" and might act out.
Several jurisdictions have held that a trial court abused its discretion in refusing to allow a defendant to reenter upon a request to return and promise to behave. For example, in Goston v. State, the Arkansas Supreme Court held that although "the trial court's knowledge of a defendant's past behavior is a relevant consideration," 20 the trial court abused its discretion because "Goston was never afforded any opportunity to reclaim his right of confrontation" despite requests to return and promises to behave.21 And in State v. Aceto, the Montana Supreme Court held that the trial court erred when it *331did not give the defendant a chanee to return to the courtroom when he apologized after repeated bad behavior.22
Some jurisdictions have gone even further, interpreting Allen to require a trial court to affirmatively offer a defendant the opportunity to reclaim his right to be present.23 The American Bar Association's Standards for Criminal Justice similarly recommend that a "removed defendant should be afforded an opportunity to hear the proceedings and, at appropriate intervals, be offered on the record an opportunity to return to the courtroom upon assurance of good behavior."24
Although several decisions have upheld the permanent exclusion of a disruptive defendant from his trial, in some of these cases the defendant failed to request to return or promise to behave,25 and in others, the defendant was allowed to return multiple times upon repeated promises to behave, before finally being excluded permanently.26 Douglas's case does not require us to decide precisely how many chances a defendant must be given before he is barred from his trial indefinitely because Douglas was not given even a single opportunity to appear before the jury upon his promise to behave.
Even if it were possible to justify exelud-ing Douglas from the bulk of his trial, it is particularly troubling that Douglas was not given a chance to testify in person on his own behalf. In a context much less weighty than a felony trial-a simple driver's license revocation hearing-we have recognized the special importance of live, as opposed to telephonic, testimony.27 We noted that "the potential for empathy and nuanced understanding is much greater in person-to-person communications than in any of the various forms of telecommunicating," and thus that "when a party is denied an in-person hearing before a trier of fact, there is a risk that the party will be less able to convey the message that his story is the truth." 28
Concerns about the difficulty of controlling Douglas's testimony do not serve as a persuasive rationale for denying him the right to testify in person given that he was offered the opportunity to testify by speaker phone *332and his speaker phone testimony could likewise have been uncontrollable. Flipping a switch to suppress acting out on a speaker phone seems only marginally less prejudicial than calling a recess, excusing the jury, and removing the defendant from the courtroom. And to the extent that calling a recess would be more prejudicial, such a problem would have been invited by the defendant.
The court overstates the risk of mistrial raised by a possible outburst by Douglas in front of the jury, whether during his own testimony or at another stage in the proceedings. As the court recognizes, a defendant's own misconduct is generally not considered grounds for a mistrial-to hold otherwise would give many defendants a strong incentive to misbehave.29 Thus, provided a defendant has been sufficiently warned that any disruption he voluntarily causes will not result in a mistrial, the risk of prejudicing himself in front of the jury should be his to take if he so chooses.30 We should not countenance the total denial of a defendant's right to attend his trial and give in-person testimony in the name of preserving other fair trial rights of the defendant. The choice is for the defendant.
Because, by excluding Douglas from his entire trial and refusing to let him testify in person, the trial court violated the confrontation and due process clauses of the United States and Alaska constitutions, I respectfully dissent.
. Op. at 319 (footnotes omitted).
. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).
. Melendez-Diaz v. Massachusetts, - U.S. ---, 129 S.Ct. 2527, 2541, 174 LEd.2d 314 (2009) (internal quotation marks omitted) (holding that Confrontation Clause bars admission of certificates of drug analysis sworn by analysts at state laboratory without requiring their in-court testimony).
. Coy v. Iowa, 487 U.S. 1012, 1017, 108 S.C. 2798, 101 LEd.2d 857 (1988) (internal quotation marks omitted) (holding that placement of screen between defendant and child sexual assault victims during testimony against defendant violated defendant's Confrontation Clause rights); see also Giles v. California, - U.S. , 128 S.Ct. 2678, 2692-93, 171 L.Ed.2d 488 (2008) (holding that California Supreme Court's theory of "forfeiture by wrongdoing" was not an exception to confrontation requirement and noting that "the guarantee of confrontation is no guarantee at all if it is subject to whatever exceptions courts from time to time consider 'fair' "); Davis v. Washington, 547 U.S. 813, 821-22, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (holding that Confrontation Clause bars admission of a statement taken by a police officer in the course of interrogation where "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution" and the witness does not appear at trial); Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, *329158 L.Ed.2d 177 (2004) (holding that Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination").
. Raphael v. State, 994 P.2d 1004, 1012 (Alaska 2000).
. Cf. State v. Murtagh, 169 P.3d 602, 608, 610 (Alaska 2007) (explaining that "[s}tate practices, including statutes, that interfere with fair trial rights do not pass constitutional muster merely because they are minimally rational," but rather "we will consider not only the relative strength of the purpose underlying the statute but also the likelihood that the statute will achieve its purpose and whether the purpose can be achieved in another way that does not impede fair trial rights").
. 397 U.S. at 342-47, 90 S.Ct. 1057.
. Op. at 320.
. 397 U.S. at 343-44, 90 S.Ct. 1057.
. Id. at 343, 90 S.Ct. 1057.
. Id. at 340, 90 S.Ct. 1057.
. Id. at 341, 90 S.Ct. 1057.
. Id. at 346, 90 S.Ct. 1057 (emphasis added).
. See Stadler v. State, 813 P.2d 270, 272 (Alaska 1991) ("If it is for civil contempt the punishment is remedial.... But if it is for criminal contempt the sentence is punitive. ...").
. Id.; see also Diggs v. Diggs, 663 P.2d 950, 951 (Alaska 1983) ("[AJny sanction which is imposed as a result of the civil contempt proceeding must afford a continuous opportunity to the defendant to purge the contempt.").
. The superior court also indicated a predisposition to exclude Douglas prior to trial, warning Douglas: "I'm not nearly as indulgent as Judge Weeks" and "if you were to get about two words out of line with me, I think you'd probably be listening in on the speakerphone and I don't think ... the microphone will be working either."
. Op. at 323 (internal quotation marks omitted).
. Id. (internal quotation marks omitted).
. Id. at 323-24.
. 327 Ark. 486, 939 SW.2d 818, 820 (1997).
. Id. at 821-22.
. 323 Mont. 24, 100 P.3d 629, 630-31, 638-39 (2004).
. Chavez v. Pulley, 623 F.Supp. 672, 681-82 (E.D.Cal.1985) ("[A] trial judge who has removed a criminal defendant from the courtroom because of his disruptive behavior must offer the defendant the opportunity to reclaim the right of presence and the privilege to testify."); State v. Strich, 99 Conn.App. 611, 915 A.2d 891, 899-900 (2007) (holding that the trial court erred because it "never informed the defendant that, with proper assurances, he could reclaim his right to be present for the remaining courtroom proceedings" but that the error was harmless).
. ABA Stamparps ror Criminat Justice Speciat Fuxncrions or tas Triar JupeE, Standard 6-3.8 (3d ed.2000).
. People v. Pearson, 52 Ill.2d 260, 287 N.E.2d 715, 719 (1972) ([TJhe defendant did not ask to be allowed to resume his place in the courtroom and, of course, he did not 'promise to conduct himself properly' following the second disturbance."); State v. Sahakian, 886 S.W.2d 178, 181 (Mo.App.1994) (stating that after removal "[dJe-fendant did not express any desire to participate in the three day trial"); Dotson v. State, 785 S.W.2d 848, 854 (Tex.App.1990) (holding no abuse of discretion where trial judge removed defendant from courtroom, defendant did not request to return, and trial judge did not subsequently inquire as to whether defendant would behave if permitted to return); State v. Chapple, 145 Wash.2d 310, 36 P.3d 1025, 1033 (2001) (en bane) (stating that "lower courts have interpreted [the right to reclamation] to require varying degrees of trial court involvement in the reclamation" and holding that using defense counsel as go-between was adequate to give defendant opportunity to reclaim right).
. United States v. Nunez, 877 F.2d 1475, 1476-78 (10th Cir.1989) (holding that it was not error to refuse to allow defendant to return for third time, after having removed him twice and excused him once, allowing him to return twice upon promises to behave); People v. Medina, 11 Cal.4th 694, 47 Cal.Rptr.2d 165, 906 P.2d 2, 26 (1995) (rejecting defendant's argument that trial court erred in refusing to allow defendant to return for sixth time, after having removed him six times, allowing him to return five times upon promises to behave); State v. Gillam, 629 N.W.2d 440, 451-52 (Minn.2001) (holding that it was not abuse of discretion to refuse to allow defendant to return for third time, after having removed him three times, allowing him to return twice upon promises to behave).
. Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 1130, 1136-37 (Alaska 2001).
. Id. at 1137.
. Op. at 325-26.
. The right to testify is personal to the defendant, and the defendant may exercise it even if doing so is against his counsel's wishes and against his own best interests. See LaVigne v. State, 812 P.2d 217, 219 (Alaska 1991) (explaining that "[the constitutional right to testify is both personal to the criminal defendant and fundamental to the dignity and fairness of the judicial process" and that "(tlhe ultimate decision whether to exercise the right therefore rests with the defendant, not with defendant's counsel"); cf. Faretta v. California, 422 U.S. 806, 833-36, 95 S.Ct 2525, 45 L.Ed.2d 562 (1975) (holding that criminal defendants have the constitutional right to defend themselves pro se because although "in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts," "[the right to defend is personal" and the drafters of the Bill of Rights "understood the inestimable worth of free choice").