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City of Mandan v. Baer5/20/1998
] Thus, once the defendant shows noncompliance with the presence requirement, he need not show actual prejudice. Jones v. United States, 299 F.2d 661, 662 (10th Cir. 1962). The burden of persuasion is on the State to show that a violation of the presence requirement was harmless error. United States v. De Hernandez, 745 F.2d 1305, 1310 (10th Cir. 1984) (noting while an ex parte communication by the trial Judge with the jury in violation of Rule 43 may be harmless error, the burden is on the prosecution to show it). Here, we are not convinced beyond a reasonable doubt that the dismissal of a prospective juror outside of Baer's presence was not prejudicial to him.
IV.
[ ] We reverse and remand this case for a new trial.
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