Voluntary Absence as Waiver: State v. McKnight and the Limits of Due Diligence in Montana Felony Trials

I. Introduction

In State v. McKnight, 2025 MT 288, the Montana Supreme Court addressed a recurring but underdeveloped problem in criminal procedure: what happens when a felony defendant disappears in the middle of trial.

Joshua McKnight appeared for the first half of his felony drug trial, but failed to return from the lunch recess. The District Court proceeded with the trial and ultimately received a guilty verdict in his absence. On appeal, McKnight argued that the court violated his constitutional right to be present and failed to exercise statutorily required “due diligence” to secure his presence for the return of the verdict. He also claimed ineffective assistance of counsel based on his attorney’s failure to move to suppress methamphetamine found in his clothing at the hospital.

The Supreme Court’s opinion does more than resolve a fact-bound dispute. It clarifies the interaction between two Montana statutes governing a defendant’s absence at trial, articulates when a trial court must (and need not) exercise “due diligence” before taking a verdict in a felony case, and reaffirms the framework for addressing ineffective assistance of counsel on direct appeal versus postconviction review.

The central legal holding is succinctly captured in the Court’s concluding paragraph:

“When a trial court correctly determines pursuant to § 46‑16‑122(3)(b), MCA, that a defendant has voluntarily absented themselves from trial, then a due diligence inquiry under § 46‑16‑123(2)(a), MCA, is not required.” (McKnight, ¶ 39.)

This commentary examines the opinion in depth: the factual background, the Court’s reasoning, relevant precedents, the statutory construction, and the broader implications for Montana criminal practice.

II. Summary of the Opinion

A. Parties and Procedural Posture

Plaintiff/Appellee: State of Montana
Defendant/Appellant: Joshua Alan McKnight
Trial Court: Twentieth Judicial District Court, Sanders County (Judge Molly Owen)
Charge at Trial: Criminal Possession of Dangerous Drugs (felony) under § 45‑9‑102, MCA (other charges had been dismissed without prejudice).

After a jury found McKnight guilty in absentia, the District Court sentenced him to five years in the Montana State Prison. McKnight appealed, challenging the continuation of trial and verdict in his absence, and asserting ineffective assistance of counsel (IAC) for failure to move to suppress evidence.

B. Issues on Appeal

Presence at Trial / Verdict: Did the District Court err by continuing with trial and allowing the jury to return its verdict in McKnight’s absence?
Ineffective Assistance: Is McKnight’s claim of ineffective assistance of counsel properly reviewable on direct appeal?

C. Holdings

No error in proceeding with trial and verdict:
- Trial is a “critical stage,” and the defendant has a constitutional right to be present, but this right may be waived.
- Under § 46‑16‑122(3)(b), MCA, once a felony trial has commenced in the defendant’s presence, the court may proceed to verdict if the defendant is voluntarily absent and the offense is not punishable by death.
- McKnight’s midtrial disappearance was treated as a voluntary absence and, therefore, a waiver of his right to be present, including at the return of the verdict.
- Although § 46‑16‑123(2)(a), MCA, generally requires “due diligence” to procure the defendant’s presence at the verdict, that requirement is obviated once the defendant’s voluntary absence constitutes a waiver.
IAC claim not reviewable on direct appeal:
- McKnight’s IAC claim (failure to move to suppress the search of his clothing) is non-record-based.
- Because the appellate record does not reveal why trial counsel chose not to file a suppression motion, the Supreme Court declined to decide the IAC claim on direct appeal, leaving it for possible postconviction proceedings.

The Court affirmed the judgment and conviction.

III. Case Background

A. Factual Context

On May 8, 2021, law enforcement responded to a serious single-vehicle crash near Trout Creek, Montana. Initial reports indicated:

A male was trapped in the vehicle;
A baby was seriously injured; and
Another male—the suspected driver—had fled the scene.

McKnight was identified as a passenger and transported by ambulance to Clark Fork Valley Hospital in Plains, Montana. Officer Jared Hutchings met the ambulance at the hospital to identify McKnight.

At the hospital:

Hospital staff cut off McKnight’s clothing for treatment and x-rays.
Live ammunition fell out of McKnight’s pocket, prompting a nurse to request assistance from Officer Hutchings.
A pipe and baggie containing a substance later confirmed as methamphetamine (about five grams) were located in McKnight’s clothing.

A subsequent search of the crash scene uncovered:

Approximately ten grams of suspected heroin;
Firearms, magazines, and ammunition;
A scale and baggies; and
A loaded syringe with suspected heroin.

Multiple felony charges were filed, though all but one—felony criminal possession of dangerous drugs under § 45‑9‑102, MCA—were dismissed without prejudice before trial.

B. The Trial and McKnight’s Disappearance

McKnight’s trial was initially set for May 9, 2022, but was continued upon his motion citing medical issues. The State later moved to reschedule, noting no further medical information had been provided. The jury trial ultimately began on September 12, 2022.

On the morning of trial, McKnight personally asserted significant health problems:

“I've had to put off emergency surgery. I have an abscess in my pelvic area. And I've put off my surgeries and stuff because I don't want to go to surgery sick and stressed out, you know. And I need heart surgery again.” (¶ 18.)

The trial proceeded through voir dire, opening statements, and some testimony. Defense counsel cross-examined the State’s first witness before the court recessed for lunch at 11:46 a.m., instructing parties to return at 12:50 p.m.

When court reconvened at 1:06 p.m., McKnight was absent. The judge asked defense counsel where his client was; counsel replied that he did not know and initially suggested that “the Court can’t try a felony in absentia.” The District Court cited § 46‑16‑122(3)(b), MCA, and indicated that a felony trial can proceed if the defendant is voluntarily absent. Defense counsel objected on McKnight’s behalf; the objection was overruled and the trial continued.

Key aspects:

The trial continued with the State’s case in chief.
When prompted to present a defense, McKnight’s counsel stated he had no case without McKnight.
Defense counsel noted McKnight “didn’t sound too good or look too good” but could not say whether McKnight was actually sick.
The defense rested without presenting evidence.

The jury deliberated for about twenty minutes and returned with a guilty verdict at 3:24 p.m. Critically, at that time:

McKnight was not present; and
Defense counsel was also not present, having earlier informed the court he was leaving and “would not need to do anything further.”

The District Court received the verdict in their absence. The State requested, and obtained, a warrant for McKnight’s arrest, stating it believed he had “absconded.”

C. Post-Trial Events and Appeal

McKnight was arrested on the warrant on September 15, 2022, then released on his own recognizance. He later failed to appear for sentencing set for December 13, 2022, leading to another warrant and his eventual arrest in June 2023.

At a June 28, 2023 hearing on the warrant, McKnight—arguing for reduced bond—claimed he had left trial due to a serious cardiac emergency and had gone to the ER in Sandpoint, Idaho. The County Attorney disputed that any medical documentation had ever been provided and pointed out that law enforcement had repeatedly observed McKnight in the community thereafter. The District Court reduced bond partly based on his “admitted health issues,” but noted having seen no supporting records.

McKnight did not at that point move for a new trial or otherwise ask the District Court to revisit the verdict based on his claimed involuntary medical absence.

After multiple continuances, sentencing occurred on April 9, 2024. The court imposed a five-year prison term. Only on appeal did McKnight challenge the propriety of having been tried and convicted in absentia and assert ineffective assistance for failure to file a suppression motion.

IV. Detailed Analysis of the Opinion

A. The Right to Be Present at Critical Stages

Both the United States and Montana Constitutions protect a criminal defendant’s right to be present at “critical stages” of the proceedings. (Blake, ¶ 7; Wilson, ¶ 11.)

U.S. Constitution: Sixth Amendment (confrontation and assistance of counsel) and Fourteenth Amendment (due process).
Montana Constitution: Article II, § 24 (right to appear and defend in person and by counsel, to meet the witnesses against him face to face, etc.).

A “critical stage” encompasses any step “where there is potential for substantial prejudice to the defendant.” (Blake, ¶ 7 (quoting Charlie, ¶ 40).) Trial itself, including the reception of the verdict in a felony case, is unquestionably a critical stage.

Montana applies a three-part test (from Blake and Price) to determine if there has been a violation of this right:

Was the defendant excluded from a critical stage?
Did the defendant waive the right to be present at that stage?
Was the defendant prejudiced by the absence?

The Court here emphasizes, consistently with McCarthy and Bird, that waiver of constitutional rights must be “specific, voluntary, and knowing.” (¶ 14.) Nonetheless, that waiver need not always be express; it can be implied through conduct—most notably, by voluntarily absenting oneself from trial.

B. Statutory Framework: §§ 46‑16‑122(3)(b) and 46‑16‑123(2)(a), MCA

Two Montana statutes lie at the heart of the opinion.

1. § 46‑16‑122(3)(b), MCA – Absence of Defendant from Trial

This provision states:

“After the trial of a felony offense has commenced in the defendant's presence, the absence of the defendant during the trial may not prevent the trial from continuing up to and including the return of a verdict if the defendant … is voluntarily absent and the offense is not one that is punishable by death.” (¶ 15, emphasis added.)

Key points:

Applies only after trial has commenced in the defendant’s presence.
Allows continuation of trial up to and including the return of the verdict.
Conditioned on the absence being voluntary.
Inapplicable if the offense is punishable by death (not at issue in Montana post-abolition of the death penalty, but the text remains).

2. § 46‑16‑123(2)(a), MCA – Absence of Defendant on Receiving Verdict

“In all felony cases, the defendant shall appear in person when the verdict is returned … unless, after the exercise of due diligence to procure the defendant's presence, the court finds that it is in the interest of justice that the verdict be returned in the defendant's absence.” (¶ 15, emphasis added.)

Key points:

Applies to all felony cases.
Presumes the defendant should be physically present at the return of the verdict.
Creates a due diligence requirement before a court may lawfully receive a verdict in the defendant’s absence.

3. In Pari Materia Construction

Because both statutes address aspects of a defendant’s absence in felony trials, the Court applies the canon that statutes “in pari materia”—covering the same subject—must be construed together to give effect to both where possible. (Mountain W. Farm Bureau, ¶ 23; ¶ 15.)

The tension: § 46‑16‑122(3)(b) appears to allow the trial to proceed through verdict upon a finding of voluntary absence, while § 46‑16‑123(2)(a) appears to require “due diligence” to secure the defendant’s presence at the verdict even in felony cases.

McKnight resolves this tension by holding that once the defendant’s voluntary absence has been properly found under § 46‑16‑122(3)(b), the due diligence requirement under § 46‑16‑123(2)(a) drops away.

C. Voluntary Absence as Waiver: Application to McKnight

1. Defining Voluntary Absence

The Court relies on State v. Marquart, 2020 MT 1, for the basic standard:

“An absence is voluntary if the defendant knew of the hearing and failed to appear due to circumstances within his control.” (¶ 21 (citing Marquart, ¶ 22).)

Montana precedent recognizes two ways a defendant may waive the right to be present:

By failing to appear; or
By providing an express personal waiver. (Clark, ¶ 15, citing McCarthy, Tapson.)

McKnight concerns the first category: waiver by conduct through non-appearance after trial had commenced.

2. The Court’s Factual Assessment

The Court highlights several key facts bearing on voluntariness:

McKnight had prior medical issues and had already obtained a continuance on that basis (¶ 18).
On the morning of trial he again mentioned serious health problems but no specific medical documentation was presented (¶ 18).
He left at lunch without informing the court, counsel, or staff where he was going or that he was seeking emergency care.
No hospital or medical personnel contacted the court to report his admission (contrast with Clark, where a nurse called the court; ¶ 22, ¶ 28).
At the hearing the next year, he claimed to have gone directly to the ER in Sandpoint, Idaho, rather than the closer Clark Fork Valley Hospital, without explaining this choice (¶ 27).
Despite repeatedly invoking his health in various contexts (bail, sentencing), McKnight never produced medical records confirming an ER visit on the trial date, even though he submitted other medical documentation at sentencing (¶ 27, ¶ 29).
He did not move for a new trial in the District Court on the ground that his absence was involuntary; the first such claim arose only on appeal (¶ 29, ¶ 33).

On this record, the Court concludes:

“Based on the foregoing, we conclude that the District Court did not err by resuming McKnight's trial in his absence. The District Court correctly applied § 46‑16‑122(3)(b), MCA, to find McKnight chose to voluntarily absent himself from trial.” (¶ 29.)

And later:

“Here, McKnight's voluntary absence resulted in a waiver of the right to be present at trial.” (¶ 29.)

3. Opportunity to Rebut Voluntariness

Borrowing from sister-state authority (especially Finnegan, Thomson, and Connolly), the Court emphasizes that a defendant has opportunities after trial to show the absence was involuntary and thereby seek relief:

At a later hearing (for example, on arrest warrants or bond).
In a motion for new trial supported by medical or other evidence.
In postconviction proceedings if the record is inadequate.

In Finnegan, the Minnesota Supreme Court had reasoned that even if the trial judge’s initial decision to deem the absence “voluntary” was premature, any prejudice was cured by the defendant’s later opportunity to show involuntariness—an opportunity he failed to use. (¶ 23.) The Montana Court adopts a similar logic: what matters is not perfection at the moment the defendant fails to appear, but whether, in the totality of the proceedings, the defendant had a fair chance to rebut the presumption of voluntariness. McKnight did not seize that chance.

D. Due Diligence Under § 46‑16‑123(2)(a), MCA – And Its New Limitation

1. What is “Due Diligence” in Montana’s Jurisprudence?

The term “due diligence” is not defined in § 46‑16‑123(2)(a), so the Court looks to other contexts where it has interpreted the phrase:

In re J.R.T., 258 Mont. 520 (1993): Due diligence “requires something more than merely relying on an unknown address and a former place of employment.” (¶ 31.)
Klemann, 194 Mont. 117 (1981): A defendant who sought a continuance to obtain private counsel had “utterly failed” to show attempts or capacity to do so; due diligence requires showing efforts to procure what is requested. (¶ 31.)
Kuilman, 111 Mont. 459 (1941): “The showing of due diligence is in the nature of a conclusion.” (¶ 31.)

From these cases, the Court affirms that “due diligence” entails affirmative, reasonable efforts under the circumstances, not passive inaction or mere assumptions.

2. The Court’s Critical Admission: No Due Diligence Here

The Supreme Court expressly states:

“Here, the District Court did not exercise due diligence in accordance with § 46‑16‑123(2)(a), MCA.” (¶ 32.)

In other words, under a straightforward reading of § 46‑16‑123(2)(a) alone, the trial court’s efforts to locate or contact McKnight before taking the verdict would not satisfy the statute’s “due diligence” requirement.

Yet the conviction is still affirmed. This leads directly to the new doctrinal clarification.

3. The New Rule: When Voluntary Absence Exists, Due Diligence Is Not Required

Reconciling §§ 46‑16‑122(3)(b) and 46‑16‑123(2)(a), the Court holds:

“However, we do not find this determinative because McKnight's voluntary absence acted as a waiver of his right to be present at the verdict. A defendant's voluntary absence after a felony trial has commenced renders a court's due diligence inquiry to procure them for the verdict unnecessary.” (¶ 32, emphasis added.)

The operative rule is then formally stated in the conclusion:

“When a trial court correctly determines pursuant to § 46‑16‑122(3)(b), MCA, that a defendant has voluntarily absented themselves from trial, then a due diligence inquiry under § 46‑16‑123(2)(a), MCA, is not required.” (¶ 39.)

The logic:

Step 1: § 46‑16‑122(3)(b) authorizes continuation of trial, including verdict, once voluntary absence is found.
Step 2: That voluntary absence constitutes a waiver of the right to be present at trial and at verdict.
Step 3: § 46‑16‑123(2)(a)’s due diligence requirement applies only in the absence of such a waiver—i.e., when the defendant has not voluntarily absented himself.

Thus, in McKnight’s case:

Yes, the District Court fell short of “due diligence.”
No, this does not invalidate the verdict, because due diligence was not required once McKnight waived his presence right by voluntary absence.

E. Comparative Law and Federal Analogy

The Court bolsters its analysis by drawing on federal law and decisions from other states dealing with midtrial disappearance.

1. Federal Rule of Criminal Procedure 43 and Crosby

Federal Rule of Criminal Procedure 43(c) provides that a defendant who is initially present waives the right to be present by voluntarily absenting herself after trial has commenced. If that occurs, “the trial may proceed to completion, including the verdict's return and sentencing, during the defendant's absence.” (¶ 25; Fed. R. Crim. P. 43(c)(2).)

The U.S. Supreme Court in Crosby v. United States, 506 U.S. 255 (1993), stated that Rule 43 “treats midtrial flight as a knowing and voluntary waiver of the right to be present.” (¶ 25, quoting Crosby, 506 U.S. at 261.)

Montana’s § 46‑16‑122(3)(b), MCA, is functionally parallel to Rule 43 in treating midtrial absence as a potential waiver, subject to a voluntariness finding.

2. Minnesota – State v. Finnegan, 784 N.W.2d 243 (Minn. 2010)

In Finnegan, the defendant attempted suicide on the second day of trial. The trial court found him voluntarily absent and proceeded. The Minnesota Supreme Court:

Noted the trial court “could have done a more thorough investigation” (¶ 23); but
Upheld the conviction because Finnegan later had opportunities to demonstrate his absence was involuntary at a post-trial hearing and in postconviction proceedings, and failed to do so (¶ 23).

McKnight echoes this approach: even if a trial court’s initial voluntariness determination is made with limited information, any potential unfairness is mitigated if the defendant later has, but does not use, opportunities to produce contrary evidence.

3. Oregon – State v. Harris, 630 P.2d 332 (Or. 1981)

The Oregon Supreme Court in Harris upheld a trial court’s decision to proceed upon concluding that there was “ample information” to find the defendant had voluntarily absented himself, in the absence of any indication his failure to appear was involuntary (¶ 24). This underlines that a court is not required to speculate about hypothetical medical or other emergencies when no evidence suggests them.

4. Washington – State v. Thomson, 872 P.2d 1097 (Wash. 1994)

Washington has a three-step test for midtrial absence:

Make sufficient inquiry into the circumstances of the disappearance to justify a voluntariness finding;
Make a preliminary finding of voluntariness when justified; and
Give the defendant, once returned to custody, an adequate opportunity to explain the absence before sentencing. (¶ 24, quoting Thomson, 872 P.2d at 1100.)

In Thomson, the defendant also left after trial had begun, claiming a medical emergency; the court found voluntary absence after waiting several hours without any confirmation of his condition, and Thomson later gave no explanation at sentencing. The Washington Supreme Court approved the procedure. (McKnight, ¶ 24–25, 1101.)

Montana, while not formally adopting the three-prong test, follows a similar pattern in McKnight: a preliminary determination at the time of absence, followed by later opportunities to explain.

5. California – People v. Connolly, 36 Cal. App. 3d 379 (1973)

California, under a rule similar to Fed. R. Crim. P. 43, allows trial to continue in absentia if the defendant has voluntarily absented himself. Connolly stresses:

The trial court’s initial decision can be reassessed in light of additional information when the defendant reappears (¶ 26); and
Voluntariness must be assessed based on the “totality of the facts.” (¶ 26, 385–87.)

McKnight’s case fits this pattern. When he reappeared, he had ample opportunity to supply records of his asserted heart emergency but did not do so.

F. Ineffective Assistance of Counsel: Record-Based vs Non-Record-Based

1. The Strickland Framework

Both the U.S. and Montana Constitutions guarantee the right to effective assistance of counsel. Montana applies the familiar two-prong test from Strickland v. Washington, 466 U.S. 668 (1984):

Deficient performance: Counsel’s performance fell below an objective standard of reasonableness.
Prejudice: There is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. (¶ 35; Morgan, ¶ 9.)

2. Threshold Question: Is Direct Appeal the Right Vehicle?

Before reaching Strickland’s merits, the Court must decide whether the IAC claim is properly addressed on direct appeal or must await postconviction proceedings. (Kougl, ¶ 14.)

The key distinction:

Record-based claims: The trial record alone explains why counsel acted as he or she did; these may be decided on direct appeal.
Non-record-based claims: Resolution requires facts or explanations outside the trial record; these must be raised in postconviction proceedings. (¶ 36; White, ¶ 20.)

The Court notes it is “relatively rare” that the record shows “no plausible justification” for counsel’s actions, making an IAC claim ripe for direct review. (Kougl, ¶ 15.)

3. McKnight’s IAC Allegation

McKnight contended that trial counsel was ineffective for failing to challenge, via a motion to suppress, the warrantless “search” of his clothing at the hospital. He argued that if the methamphetamine evidence had been suppressed, the State would have lacked sufficient proof to convict.

The State urged that:

The search may have been a private search (by hospital staff), not government action.
Alternatively, safety concerns from the ammunition could have justified police involvement.

But the Supreme Court did not attempt to resolve those competing views. Instead, it focused on the procedural posture: the record contains no explanation for why defense counsel did not file a suppression motion. As in Gunderson, the Court found no basis in the record to determine whether counsel’s omission was strategic, negligent, or otherwise. (¶ 38, citing Gunderson, ¶ 77.)

Accordingly, the Court concluded:

“We hold that McKnight's allegation of ineffective assistance of counsel is non-record based and cannot be reviewed on direct appeal.” (¶ 38.)

The claim is thus preserved, if at all, for potential postconviction relief where an evidentiary record can be developed.

V. Simplifying Key Legal Concepts

1. “Critical Stage”

A “critical stage” of a criminal proceeding is any step where what happens could significantly affect the outcome of the case or the fairness of the process—for example:

Trial (including witness testimony, closing arguments, instructions);
The return of the verdict; and
Sentencing.

At these stages, the defendant has a constitutional right to be present and to consult with counsel.

2. Voluntary vs. Involuntary Absence

Voluntary absence: The defendant knows when and where to appear but chooses not to show up or to leave, and the reason is within the defendant’s control (e.g., fleeing, deliberately walking out).
Involuntary absence: The defendant is prevented from attending by circumstances beyond his control (e.g., sudden medical incapacitation, being in custody elsewhere without fault).

In McKnight, the Court held that the record did not support McKnight’s claim of involuntary absence; his later explanation was uncorroborated and offered only in the context of bail, not as a basis for a new trial.

3. Trial “In Absentia”

A trial “in absentia” proceeds even though the defendant is not physically present. Under Montana law (and federal practice), this is permissible only if:

The trial has already begun with the defendant present; and
The defendant’s subsequent absence is voluntary.

4. “Due Diligence” to Procure Presence

“Due diligence” means making reasonable, active efforts to locate or secure the defendant’s appearance—such as:

Contacting known phone numbers or addresses;
Checking local hospitals if a medical emergency is reasonably suspected;
Asking law enforcement to locate the defendant quickly, if feasible.

In the context of § 46‑16‑123(2)(a), MCA, due diligence is required before a court may accept a verdict in the defendant’s absence—unless the defendant has already waived his presence through voluntary absence under § 46‑16‑122(3)(b), MCA, as clarified in McKnight.

5. “In Pari Materia”

This is a canon of statutory interpretation meaning “on the same subject.” When two statutes address closely related matters, courts try to:

Read them together; and
Give effect to both, if possible, rather than reading one as silently repealing or displacing the other.

In McKnight, the Court read §§ 46‑16‑122(3)(b) and 46‑16‑123(2)(a) in pari materia to conclude that due diligence is required only absent a voluntary waiver.

6. Record-Based vs Non-Record-Based IAC Claims

Record-based IAC: The reasons for counsel’s challenged action or inaction are clear from the trial transcripts and filings. Example: counsel fails to object to a plainly inadmissible piece of evidence, and nothing in the record suggests a strategic reason.
Non-record-based IAC: The appellate record does not explain why counsel acted as he did; possible justifications may exist but are unknown without further evidence or testimony. These must be raised in postconviction proceedings, where the lawyer can testify and documents can be introduced.

McKnight’s complaint about the lack of a motion to suppress falls in the latter category; nothing in the trial record reveals counsel’s thinking.

VI. Practical Implications and Likely Impact

A. For Defendants

Midtrial departure is perilous: If a defendant walks out of trial or fails to return from a recess, the court may continue without them, potentially through verdict.
Medical excuses require proof: A later assertion of a medical emergency, without contemporaneous hospital records, doctor statements, or prompt communication with the court, is unlikely to overcome a finding of voluntary absence.
Act quickly if absence was genuine emergency: Upon reappearance, a defendant who truly was involuntarily absent should:
- Provide medical records and doctor statements;
- Move promptly for a new trial or to set aside the verdict; and
- Raise the issue clearly in the trial court, not for the first time on appeal.

B. For Defense Counsel

Maintain contact and documentation: Ensure clear communication with clients about the imperative of appearing and the consequences of non-appearance.
Document health issues: When health conditions are asserted, obtain and file supporting medical evidence, especially if trial dates are affected.
Respond immediately to absences: If a client disappears midtrial, counsel should:
- Attempt to contact the client and report efforts on the record;
- Alert the court if there is any reason to suspect an involuntary cause (e.g., recent reports of chest pain and intent to seek emergency care);
- Request a brief continuance if circumstances warrant further inquiry.
Preserve IAC issues properly: If potential ineffective assistance arises (e.g., failure to file suppression motions), counsel should be aware that appellate courts will generally not resolve them on direct appeal unless the record clearly explains the strategy.

C. For Trial Judges

Initial inquiry still matters: Even though McKnight holds that due diligence is unnecessary once voluntary absence/waiver is correctly found, trial courts should:
- Make a clear record of efforts to ascertain the defendant’s whereabouts;
- Articulate on the record the basis for concluding the absence is voluntary.
Be alert to credible medical indications: If there is a specific, credible suggestion of a medical emergency, some inquiry (e.g., contacting local hospitals) may be prudent before labeling the absence “voluntary.”
Allow opportunities to explain later: At post-arrest or sentencing hearings, judges should give defendants a chance to explain prior absences and present documentation; this record will be critical on appeal.

D. For Prosecutors

Build a record on voluntariness: When advocating to proceed in absentia, prosecutors should:
- Detail the defendant’s notice of the trial schedule;
- Highlight any prior patterns of nonappearance;
- Point out the lack of contact or documentation from the defendant.
Anticipate later challenges: If a defendant later claims involuntary absence, be prepared to counter with timelines, law enforcement observations, and absence of corroborating records.

E. Doctrinal Impact

The opinion is significant in several ways:

Clarifies Statutory Relationship: It establishes a clear interpretive rule for §§ 46‑16‑122(3)(b) and 46‑16‑123(2)(a), MCA: due diligence to secure the defendant’s presence at the verdict is contingent on the absence of a voluntary waiver.
Aligns Montana with Federal and Sister-State Law: By drawing on Fed. R. Crim. P. 43 and cases such as Finnegan, Thomson, and Connolly, Montana confirms that midtrial flight or disappearance can be deemed a knowing and voluntary waiver, subject to later rebuttal.
Reinforces IAC Procedure: The Court reiterates and applies the “record-based vs non-record-based” distinction, guiding future litigants on how and when to raise IAC claims.

VII. Conclusion: The Significance of State v. McKnight

State v. McKnight is a pivotal decision in Montana criminal procedure on the consequences of a defendant’s midtrial disappearance. The Court holds that:

Once a defendant, having been present at the start of a felony trial, voluntarily absentswaived under § 46‑16‑122(3)(b), MCA;
That waiver means the court is not required to exercise “due diligence” under § 46‑16‑123(2)(a), MCA, to procure the defendant’s presence for the verdict;
A defendant who later claims an involuntary absence must promptly and credibly substantiate that claim in the trial court; failure to do so will ordinarily uphold the voluntariness finding;
Ineffective assistance claims that depend on counsel’s undisclosed strategy or reasoning—such as the choice not to file a suppression motion—are non-record-based and must be pursued in postconviction proceedings, not resolved on direct appeal.

In cementing these principles, the Court balances two imperatives: preserving the defendant’s constitutional right to be present at critical stages, and preventing defendants from “profit[ing] from [their] own wrong” by disrupting their own trials. (McKnight, ¶ 33 (quoting Illinois v. Allen, 397 U.S. at 350).) The decision provides clear guidance to trial courts, litigants, and future appellate panels on how to navigate the difficult situations that arise when defendants simply choose not to come back to court.