I. Historical Origin of the Right

• Library: The Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)

I. Historical Origin of the Right

"The trial is always public."¹ This remark from Joseph Story's 1833 Commentaries on the Constitution suggests that he is stating the obvious. Indeed, the interest in public trials is twice recognized in the Bill of Rights. This chapter focuses on the accused's right to a public trial under the Sixth Amendment and reviews the potential overlay with, and distinction from, the First Amendment right.

The Founders' interest in public trials was likely a reflection of the English Common Law and several state constitutions that recognized a right to a public trial.² "[O]ne of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the public have free access, . . . appears to have been the rule in England from time immemorial."³

The public trial right can trace its origins in England to before the Norman Conquest when freemen of the community were expected to attend public meetings and sit in judgment in criminal matters.⁴ Sir Thomas Smith recorded in 1565 that criminal proceedings are "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."⁵ As the trial process evolved, its public nature was never questioned.⁶ It is no surprise then that colonial Americans transplanted this key feature of their ancestors' legal tradition. Early records report that the Virginia Assembly took care in the mid-1600s to protect the public's right to attend trial, as did the Pennsylvania Frame of Government of 1682, which provided "[t]hat all courts shall be open."⁷ After the ratification in 1791 of the Sixth Amendment with its public trial right, most of the states included a public trial right in their constitutions. All but two states would...