3.0 - I. Introduction

• Jurisdiction: New York

I. INTRODUCTION

With very limited exceptions, all court proceedings occur in open court. Closed proceedings—with rare exception—are void proceedings. “The sittings of every court within this state shall be public, and every citizen may freely attend the same.”³⁰⁵ The discretion permitted a court to close its proceedings to the public is strictly limited to exceptional circumstances. The rule is that court proceedings, with a few exceptions, are conducted in open court.³⁰⁶ Secret proceedings are unlawful except when necessary to meet a serious and imminent threat to the integrity of a trial.³⁰⁷ “Exceptional circumstances” may be found where closure is necessary to preserve order and decorum in the courtroom, to protect the rights of parties and, generally, to further the administration of justice.³⁰⁸ A defendant has the right to a public trial. The public has the right to a public trial.³⁰⁹ A defendant cannot waive a public trial, much less compel a private trial.³¹⁰ An illegally closed trial is not subject to harmless analysis.³¹¹

Construing the Sixth Amendment, the Supreme Court posits permissible courtroom closure as follows:

The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support closure. ³¹²

Photographing and fingerprints precede arraignment. They are routine parts of the booking process. The Supreme Court notes that DNA technology is a significant scientific advancement. Its utility in the criminal justice system is undisputed. Law enforcement, the defense bar and the courts have acknowledged its unparalleled ability to exonerate the innocent and identify the guilty. “It has the potential to significantly improve both the criminal justice system and police investigative practices.”³¹³ As part and parcel of the booking process, the Court has ruled, an individual charged with a crime of violence or an attempt to commit a crime of violence may have DNA collected from inside his mouth with a buccal swab subject to a number of restrictions pertaining to its processing, use and storage. Twenty-eight states and the federal government have adopted laws authorizing the collection of DNA from those arrested for violent crimes. All 50 states require the collection of DNA from felony convicts.³¹⁴ Whither New York (for those only arrested or without an antecedent search warrant)?

A criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks...