Chapter §17.3 RIGHT TO A PUBLIC TRIAL UNDER ARTICLE I, SECTION 11

• Jurisdiction: Oregon

§17.3 RIGHT TO A PUBLIC TRIAL UNDER ARTICLE I, SECTION 11

A criminal defendant has a constitutional right to a public trial that is protected by Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment. State v. Osborne, 54 Or 289, 291-92, 103 P 62 (1909); In re Oliver, 333 US 257, 266-67, 273, 68 S Ct 499, 92 L Ed 682 (1948).

A criminal defendant's right to a public trial is also protected by statute. ORS 136.001(1) provides that a criminal defendant is entitled to a "public trial by an impartial jury."

The case law regarding the public-trial right under Article I, section 11, is scant. The singular Oregon Supreme Court case pertaining to the public-trial right under Article I, section 11, is from 1909. See Osborne, 54 Or 289. In Osborne, the supreme court declared that the public-trial right under Article I, section 11, was to "the same effect" as that under the federal Sixth Amendment. Osborne, 54 Or at 292. However, Osborne antedates the court's recognition that Oregon constitutional provisions have meaning independent of the parallel provisions of the federal constitution and the methodology established to interpret state constitutional provisions set forth in Priest v. Pearce, 314 Or 411, 415-19, 840 P2d 65 (1992). See Stranahan v. Fred Meyer, Inc., 331 Or 38, 54, 11 P3d 228 (2000) (expressing willingness to reconsider previous constitutional rulings when parties either "present new information as to the meaning of the constitutional provision at issue" or "demonstrate some failure on the part of this court at the time of the earlier decision to follow its usual paradigm for considering and construing the meaning of the provision in question").

§17.3-1 Personal Nature of the Public-Trial Right

Under both Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution, the public-trial right is personal to the accused. State ex rel. Oregonian Pub. Co. v. Deiz, 289 Or 277, 283, 613 P2d 23 (1980); Gannett Co., Inc. v. DePasquale, 443 US 368, 379-80, 99 S Ct 2898, 61 L Ed2d 608 (1979). A public trial allows for public scrutiny of the judge, the prosecutor, and the criminal process and, thus, "'safeguard[s] against any attempt to employ our courts as instruments of persecution.'" State v. Jackson, 178 Or App 233, 241, 36 P3d 500 (2001) (quoting In re Oliver, 333 US 257, 270, 68 S Ct 499, 92 L Ed 682 (1948)). Additionally, a public trial encourages witnesses to come forward and to testify truthfully, potentially providing testimony that could exculpate the accused. State v. Osborne, 54 Or 289, 297, 103 P 62 (1909); Waller v. Georgia, 467 US 39, 46, 104 S Ct 2210, 81 L Ed2d 31 (1984). Under the Oregon Constitution, a public trial may also protect against the potential prejudice attendant a closed trial. See Osborne, 54 Or at 297 (noting that the exclusion of the...