10.2 Public Trial; Presence of the Accused; Physical Restraints

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

10.2 PUBLIC TRIAL; PRESENCE OF THE ACCUSED; PHYSICAL RESTRAINTS

10.201 Public Trial.

A. In General. The right to a public trial is guaranteed to the accused under the Sixth Amendment to the United States Constitution, and this right has been held to apply to state criminal trials. ⁸ Article I, Section 8 of the Virginia Constitution also guarantees the right to a public trial. The right extends to certain pretrial proceedings that resemble a trial, ⁹ including

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juror voir dire, preliminary hearings, suppression hearings, rulings on evidentiary motions, and competency hearings. ¹⁰

A "public trial" is one that is not restricted to any particular class of the community but is open for the free observation of all. The term "public trial" generally is associated with a trial in an open courtroom where the proceedings are open to public view. ¹¹ However, when a defendant is tried in the judge's chambers, the door to the chambers is open, the public is free to hear and observe, and there is no showing that the public was excluded, there is no denial of a public trial. ¹²

Some states have sought to conduct trials of already incarcerated defendants within the walls of the prisons. The Virginia Court of Appeals has held that conducting a trial inside a prison creates a prima facie case of the denial of a public trial and is unconstitutional unless the Commonwealth sustains the burden of establishing some overriding public interest or justification for holding the trial in the prison. ¹³

B. Waiver. The purpose of the Sixth Amendment's requirement of a public trial is to guarantee that the accused be dealt with fairly. The benefits of the constitutional right to a public trial accrue to the accused, and the accused may, therefore, with the approval of the court in the exercise of its reasonable discretion, waive the right to a public trial if the court perceives that the testimony introduced therein will be the basis of adverse publicity that might jeopardize the right to a fair trial. ¹⁴ However, the Sixth Amendment right to a public trial does not guarantee the right to compel a private trial. ¹⁵

Without a waiver of the right by the defendant, the exclusion of all members of the public from the trial violates the right to a public trial, but

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the trial judge has the discretion to exclude persons whose presence would impair the conduct of a fair trial. ¹⁶

10.202 Presence of the Accused.

A. In General. The Sixth Amendment to the United States Constitution, through its provision of the right to confront adverse witnesses, guarantees the accused the right to be present at his or her trial. ¹⁷

B. Waiver. The United States Supreme Court has stated that:

Although mindful that courts must indulge every reasonable presumption against the loss of constitutional rights . . . a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. ¹⁸

The Virginia Code also has a provision on the presence of the accused: "[a] person tried for felony shall be personally present during the trial." ¹⁹ Although the statute does not make the accused's conduct the basis for a waiver of this right, the Supreme Court of Virginia has held that the right of a person indicted for a felony to be present at all stages of the trial can be waived by his or her disruptive behavior. ²⁰

C. Scope of the Right. A court may conduct some of its proceedings in the absence of the accused. Exempt from the accused's right to be present is "all inquiry into the consideration of purely legal matters by the trial judge which are in fact and reality merely careful and prudent preparation for the resumption and conduct of the trial." ²¹ The test for determining

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whether the right has been violated is whether or not the interest of the defendant was affected by the action of the judge in the defendant's ab-sence. ²² Thus, the impaneling of the jury, ²³ a sanity hearing, ²⁴ the view of the scene by the jury, ²⁵ the charge of the jury, ²⁶ and the motion for new trial ²⁷ all require the presence of the accused. However, where the judge, the commonwealth's attorney, and the defense attorney discuss jury instructions in cham-bers ²⁸ or have a conference concerning the admissibility of evidence, the presence of the accused is not required. ²⁹ The Virginia Code explicitly states that motions for continuance are not a part of the trial. ³⁰

The United States Supreme Court has ruled that a defendant's Fifth and Sixth Amendment rights to be present at trial and confront his or...