Close calls: defining courtroom closures under the Sixth Amendment.

AuthorSaetveit, Kristin
PositionNOTE

Introduction I. Background and History of the Public Trial Right A. English Common Law Origins B. Supreme Court Jurisprudence on the Public Trial Right II. Divergent Conceptions of "Closure": Lower Court Conflicts on When and How to Apply Waller A. The "Excluded Individual" Split B. The "T riviality" Split C. The "Partial Closure" Split III. Reconceptualizing Waller for a Unified Approach to Courtroom Closures A. An Explanation for Lower Courts' Avoidance of Waller B. A Proposal for Unifying Sixth Amendment Closure Doctrine. 1. Problems with lower courts' non- Waller doctrines a. The "excluded individual" doctrine b. The "triviality" doctrine c. The "partial closure" doctrine 2. A fuller understanding and application of Waller Introduction

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ..."

--Sixth Amendment to the U.S. Constitution

The Sixth Amendment represents the "heartland of constitutional criminal procedure," preserving in its compactly constructed clauses no fewer than ten fundamental rights for criminal defendants. (1) Its three main clusters of rights--the guarantees of a speedy trial, a public trial, and a fair trial--serve enduring values at the core of the American justice system: "the protection of innocence and the pursuit of truth." (2) And yet judges, lawyers, and scholars "have often lost their way" when applying the Sixth Amendment's lofty objectives to real trials. (3) The result is a body of constitutional criminal procedure with significant parts that are, at best, unclear and, at worst, plainly "bad." (4)

Of the various controversial twists and turns that Sixth Amendment interpretation has undergone, (5) the doctrinal missteps surrounding the public trial right (6) have received the least attention. Perhaps this is because the benefits flowing from public trials are somewhat less tangible than those arising from the Sixth Amendment's more concrete procedural rights, or perhaps it stems from the fact that the Supreme Court has heard so few cases on this right, (7) leaving the elaboration of the public trial guarantee largely to lower appellate and state courts.

Though it has decided few public trial right cases, the Supreme Court has consistently categorized violation of the right as "structural error," (8) a rare designation granted to defects that "relate to fundamental rights involving the structure of the trial." (9) These errors in basic trial mechanisms are "so intrinsically harmful" as to cast doubt on the entirety of the proceedings. (10) In addition to the public trial right, other structural error rights include such essential safeguards as the right to counsel, (11) the right to self-representation, (12) and the right to an impartial trial judge. (13)

While appellate review of nonstructural errors, termed "trial errors," (14) is "well-trod ground," the exact parameters for review of structural errors are less clear. (15) Although the Court has repeatedly indicated that structural errors require automatic reversal, (16) almost all of its cases regarding structural error have involved errors of significant impact (17)--for example, denial of counsel for an entire trial (18) or, in the public trial right context, the closure of an entire weeklong suppression hearing. (19) Lower courts faced with less serious infringements of the public trial right--like accidental, temporary closures or the exclusion of only some spectators--have struggled to reconcile the Court's precedent with the practical reality of these seemingly de minimis violations.

In the Court's seminal public trial right case, Waller v. Georgia, it laid out a flexible, four-part balancing test to identify the exceptional circumstances in which courtroom closures might be warranted. (20) Waller's test weighs not only the countervailing interests threatened by an open courtroom (like national security or witness protection) but also the court's ability to narrowly tailor the closure or implement alternative measures that would keep the courtroom open. (21) This established a high but adaptive bar for closures.

Rather than apply this test to every closure circumstance, however, lower courts have created an ad hoc approach that varies by jurisdiction and, as this Note argues, seriously denigrates the public trial right. This patchwork evasion of Waller consists of three splits among federal and state courts around the meaning of "closure": i) whether a defendant must demonstrate that a specific person was excluded from the courtroom, ii) whether a temporary closure can be too "trivial" to trigger the Sixth Amendment, and iii) whether the exclusion of a select group of spectators (dubbed "partial closure") warrants reversal as structural error.

Surreptitiously redefined the contours of the public trial right. This Note aims to fill that gap through a comprehensive treatment of these conflicts and their consequences. Part I describes the historical development and purpose of the public trial right. Part II explores the three conflicts in detail, explaining the reasoning and factual scenarios underlying each of the opposing doctrines. Finally, Part III discusses why the scope of the public trial right should not be redrawn and proposes a resolution to these conflicts. Instead of evading Waller, lower courts should employ a fuller understanding of Waller's versatile test that would handle all types of closure events. Universal application of Waller would more effectively safeguard the public trial right while promoting much-needed consistency across jurisdictions.

  1. Background and History of the Public Trial Right

    The Sixth Amendment's right to a public trial represents a deeply rooted tradition in Anglo-American society. (23) Open legal proceedings function to keep judges and lawyers honest and competent, as well as to assure society that our judiciary operates without deceit or duplicity. As the Supreme Court has repeatedly proclaimed, we value open courtrooms so "that the public may see [the defendant] is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions." (24) Public trials provide a fundamental safeguard against the use of our courts as "instruments of persecution" because the watchful eyes of the public--or even just the possibility thereof--provide "an effective restraint on possible abuse of judicial power." (25).

    The American open trial guarantee has manifested as a dual right of the accused and of the public. (26) The Supreme Court has recognized a constitutional right of access to trials on the part of the public, located not in the Sixth Amendment's defendant-specific text but in the First Amendment's protections of free speech and press. (27) As Justice Blackmun recognized, society's interest in open trials exists "separately from, and at times in opposition to, the interests of the accused." (28) While innocent defendants benefit from the potential advantages of public trials identified by the Court--for example, witnesses discouraged from perjury or bystanders proffering new exculpatory evidence (29)--a guilty defendant may prefer secret proceedings where bribes, intimidation, or unfavorable verdicts can pass without "the bracing sunshine of publicity." (30) Society, however, has an interest in fair outcomes in both situations. Relatedly, public trials can serve an important therapeutic function for communities outraged by shocking crimes by providing a nonviolent means for grief and closure. (31)

    1. English Common Law Origins

      As the Supreme Court has repeatedly noted, the public trial right is grounded in over a millennium of "unbroken, uncontradicted history," (32) reflected in common law dating back to pre-Norman Conquest England. (33) Prior to the twelfth century, English law required all freemen to attend trials held in their community, as the freemen of each town rendered judgment in a communal antecedent to the jury system. (34) When the Norman kings introduced the Frankish procedure of trial by a smaller jury chosen from the town, required attendance was eventually phased out, but criminal trials continued to be public community events. (35) Records from a prominent fourteenth-century court, the Eyre of Kent, demonstrate that open trial proceedings represented a fundamental means of ensuring the smooth administration of justice:

      [T]he King's will was that all evil doers should be punished after their deserts, and that justice should be ministered indifferently to rich as to poor; and for the better accomplishing of this, he prayed the community of the county by their attendance there to lend him their aid in the establishing of a happy and certain peace that should be both for the honour of the realm and for their own welfare. (36) In 1565, English scholar and diplomat Sir Thomas Smith noted that criminal trials were

      doone openlie in the presence of the Judges, the Justices, the enquest, the prisoner, and so manie as will or can come so neare as to heare it, and all depositions and witnesses given aloude, that all men may heare from the mouth of the depositors and witnesses what is saide. (37) This common law tradition continued unabated into the seventeenth and eighteenth centuries, praised by notable juridical commentators like Matthew Hale and William Blackstone. (38)

      Although some courts and commentators have referenced the notorious Court of the Star Chamber (39) as the impetus for a strong public trial right in England, (40) others argue that the common law protecting open criminal proceedings was already well established by the time the Star Chamber came into existence. (41) Those commentators note that public outrage toward the special court focused not on any secrecy in its proceedings (indeed, hearings were described as "open," albeit in a limited sense of the word) but on the...

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