II. Whose Right Is It?

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

II. Whose Right Is It? A. Right of the Accused

The text of the amendment provides that "the accused shall enjoy the right to a speedy and public trial," which would suggest that the defendant controls the assertion of the right. Sweeping and often-cited language in the Supreme Court's opinion in Gannett Co. v. DePasquale¹⁰ supports this interpretation. "Our cases have uniformly recognized the public-trial right guarantee as one created for the benefit of the defendant."¹¹ However, focusing on the defendant's perspective fails to embrace the reality that interests beyond the defendant's drive judicial decision making in this area. While it is the declared right of the "accused" in the text of the Sixth Amendment, the public's interest in a public trial is widely recognized. "It has never been suggested that by phrasing the public-trial guarantee right as a right of the accused, the Framers intended to reject the common-law rule of open proceedings."¹² This wider view is explained by a shared sense that the public trial is axiomatic in a democracy¹³ and by the overlay of First Amendment considerations.

B. Right of the Public under the First Amendment

Remarkably, it was only in 1980 that the Supreme Court first addressed whether there existed a First Amendment right to attend a trial. In Richmond Newspapers, Inc. v. Virginia,¹⁴ the Court found the public's and press's right to attend criminal trials to be implicit in the guarantees of the First Amendment.¹⁵ While admitting that neither the Constitution nor the Bill of Rights contains an explicit guarantee of the public's right to attend trial,¹⁶ the Court found that "without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and 'of the press could be eviscerated.'"¹⁷ Since the ruling in Richmond Newspapers, any broadening of the public trial right under a First Amendment analysis has generally been linked to the defendant's Sixth Amendment right as "there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public."¹⁸

C. Incorporation of the Sixth Amendment Public Trial Right

No Supreme Court case explicitly incorporates the Sixth Amendment right to a public trial into the Fourteenth Amendment due process rights applicable to the states. However, there can be no doubt about its tacit incorporation. First, in Washington v. Texas¹⁹...