AuthorCass, Luke

Within the pantheon of constitutional liberties, a criminal defendant's right to a public trial is singularly significant. It is embedded in our fiber as Americans and synonymous with fairness for courts to be open and their proceedings transparent. Despite its seemingly obvious nature, public trial jurisprudence can sometimes feel like a dramatically unsettled area of law and presents unique, nuanced litigation challenges both at the district court and appellate levels.

Part One of this article examines the origins of the right to a public trial. Part Two analyzes appellate review standards in public trial violation cases, the various categories of courtroom closures, and the triviality doctrine.

In its conclusion, this article suggests best practices to counter courtroom closure claims and avoid reversals based on public trial right violations.


    The public examination of witnesses was already "a common feature" of law in the Roman Empire when Hadrian served as emperor from 117 to 138 C.E. (1) However, throughout history, trials, or their functional equivalent, have been shrouded in secrecy or resulted in other severe limitations on the rights of the accused. These instances show the importance of both the public and a criminal defendant's right to an open court.

    During the Spanish Inquisition, the preliminary examination of the accused, the questioning of witnesses, and the trial of the accused were conducted in secret. (2) In England, court proceedings required public access to "moots," which later evolved into juries, consisting of "the freemen of the community." (3) In the eleventh century, the jury transformed into a small group of individuals, but "the public character of the proceedings, including jury selection, remained un-changed." (4) As early as the sixteenth century, jurors in England were selected openly in the presence of judges, the prosecutor, and the accused. (5)

    In sixteenth century England, the Star Chamber and the Commission for Causes Ecclesiastical "focused its attention on uncovering Roman Catholic conspiracies against the monarchy and the Church of England." (6) While some authorities argue that Star Chamber trials were public, like the Inquisition, witnesses were examined privately, as was questioning of the accused. (7) In sixteenth century France, King Louis XV's monarchy employed lettres de cachet, literally letters stamped or embossed with the king's signature or seal that ordered an individual to "be forthwith imprisoned or exiled without a trial or an opportunity to defend himself." (8) "In the eighteenth century they were often issued in blank to local police" and "Louis XV is supposed to have issued more than 150,000 lettres de cachet during his reign." (9)

    These historical examples seem oppressive now but prove the benefits of open courts and how secrecy provided fertile ground for seeds of abuse to grow. Legal scholar Jeremy Bentham appreciated the value that publicity played in restraining judicial abuse, calling it the "soul of justice," (10) and emphasized the significant role that publicity played as an important check on judicial arbitrariness. (11)

    The presumption of public jury selection later debuted in colonial American proceedings. (12) Many of the thirteen colonies enacted laws requiring jury selection to occur in open court. (13) For example, late-eighteenth-century statutes in North Carolina and Delaware showed a jury selection process similar to the jury wheel employed today. (14) Like Bentham, Founding Fathers Alexander Hamilton and John Adams saw public proceedings as a necessary safeguard against potential corruption. (15) Although never discussed during the debate on the Sixth Amendment, (16) Americans explicitly incorporated these sentiments and enshrined public trials as a constitutional right. (17)

    As of 1948, when the Supreme Court decided In re Oliver, it stated it was "unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country." (18) In re Oliver dealt with a quirk of Michigan law that allowed for a "one-man grand jury" investigation to be conducted by a state circuit judge. (19) In performance of these duties, the judge summoned a witness as part of an alleged gambling and corruption investigation and questioned him, under oath, and in "secret in accordance with the traditional grand jury method." (20) The judge concluded that the witness's story did not "jell" and "immediately charged him with contempt, immediately convicted him, and immediately sentenced him to sixty days in jail." (21) The Supreme Court held that this abrupt change from grand jury proceeding to trial without an abatement in secrecy violated the defendant's right to a public trial on due process grounds. (22) Due process under the Fourteenth Amendment meant that the defendant could not be sentenced to prison without first having had a public trial. (23) In a prescient observation on an issue that would recur frequently in future cases, the Supreme Court noted that "without exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense may be charged." (24)

    The benefits of having open courts are legion. Public proceedings: (1) provide an appearance of fairness; (25) (2) discourage bias or partiality in judicial rulings or prosecutorial conduct; (3) discourage perjury by requiring witnesses' assertions to be tested in public; (4) encourage witnesses who may not know they have relevant information to testify; (5) allow for rebuttal witnesses to counter false testimony; (6) provide the court, parties, and witnesses with scrutiny that fosters a stricter sense of conscientiousness in performing their duties; (7) instill confidence in the justice system; (8) educate the public about the legal system; (26) (9) allow victims of the crime, family members, or others effected to observe and speak; (27) and (10) have "significant community therapeutic value." (28)

    The Sixth Amendment right to a public trial is a misnomer since the right is not limited to trials; it applies to suppression hearings (29) and voir dire, (30) which, as we will see below, is the stage where closures and exclusions often occur. Moreover, while the Sixth Amendment right to a public trial is "personal to the accused," (31) several Supreme Court justices observed that the public has a separate, societal interest in open proceedings. (32) Therefore, while a defendant has a firmly rooted right to a public trial, "there is no constitutional guarantee of a closed trial at the defendant's request" (33) and both Justices Powell and Blackmun described the burdens that a defendant must show to obtain a closed trial as "a strict and inescapable necessity for closure." (34)

    Public trial rights are also grounded in the First Amendment. In Richmond Newspapers, Inc., the Supreme Court expanded the scope of the public trial right doctrine by holding that "the right to attend criminal trials is implicit in the guarantees of the First Amendment." (35) The Supreme Court reasoned that included in the freedom of speech was "some freedom to listen" since the First Amendment protects the right to receive information and ideas. (36) This means that the First Amendment prohibits "government from summarily closing courtroom doors." (37) However, this "does not mean that the First Amendment rights of the public and representatives of the press are absolute" and trial judges may "impose reasonable limitations on access." (38) In their concurring opinion, Justices Brennan and Marshall observed the practical reality of the "finite physical capacity" of courtrooms. (39) The justices noted that, on those occasions, "the constitutional demands of a fair trial" may "sometimes justify limitations upon the unrestricted presence of spectators in the courtroom." (40) But even in those circumstances, "representatives of the press must be assured access." (41)

    The First and Sixth Amendments confer constitutional rights to the public and the defendant, respectively. However, whether these rights are mutual or exclusive is unclear. The Supreme Court observed, "[t]he extent to which the First and Sixth Amendment public trial rights are coextensive is an open question, and it is not necessary here to speculate whether or in what circumstances the reach or protections of one might be greater than the other." (42)


    The balancing of how this plays out in real time, at trial, presents a potential minefield on appeal where the court is often deprived of an accurate record of what transpired at trial that led to a closure. For example, a spectator turned away from a courtroom by a deputy in a hallway or conflicting accounts of whether the courtroom door was locked may lead to problematic judicial fact-finding on whether a closure actually occurred. These factual circumstances inform how courts determine whether a closure actually occurred; whether it was partial, complete, constructive, or trivial; or whether only certain individuals were excluded from court. (43) The role of the government, however, is clear: Federal prosecutors "may not move for or consent to the closure of any [judicial] proceeding without the express prior authorization of the Deputy Attorney General." (44)

    Parties seeking to affirmatively close courtroom proceedings are required to make a preliminary showing. In Waller, the Supreme Court held that such parties "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 the closure." (45) Waller arose from a Georgia state RICO prosecution that involved wiretaps. (46) The prosecutor...

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