IV. When May a Trial Be Closed?

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

IV. When May a Trial Be Closed?

These compelling rationales in favor of a public trial create a strong presumption in favor of open proceedings that may be overcome only if the following standards are met:

• The party seeking to close the proceeding must advance an overriding interest that is likely to be prejudiced.
• Closure must be no broader than necessary to protect that interest.
• Trial court must consider reasonable alternatives to closing the proceedings.
• Trial court must make findings adequate to support the closure.²⁹

Although the presumption is strong, the right is not absolute. It "may give way in certain cases to other rights or interests, principally the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information."³⁰

A. Overriding Interest That Is Likely to Be Prejudiced

While not common, courts have allowed for closures where witnesses, in particular children, would be intimidated by the presence of the public.³¹ Barring the press from a pretrial bail-reduction hearing was approved in one case where the defendant met his burden of showing likely prejudice from pretrial publicity.³² The court may adapt procedures to conceal the identity of informants or undercover police officers,³³ to protect law enforcement measures that would be compromised if disclosed,³⁴ or to deal with the special challenges presented with child victims.³⁵ Also, judges have broad discretion to exclude or restrict spectators to preserve order and safety in their courtrooms.³⁶ However, a court should not accept "a bald assertion of intimidation" and must undertake an independent inquiry to verify the necessity for a closure.³⁷ 1t is not improper to lock the doors to limit the distraction of the public's coming and going during the jury's charge, trial testimony, or closing argument.³⁸ Some courts have applied the constitutional test to courtroom screening that requires spectators to sign in and show identification, while others have determined that these measures do not constitute a closure.³⁹ State and federal statutes authorize exclusion of the public from particular proceedings such as those involving juveniles.⁴⁰ But rules providing for blanket closures in all cases involving juvenile victims have not passed constitutional muster.⁴¹ Courts have approved closures necessary to protect matters of national security.⁴²

B. Closure Must Be No Broader Than Necessary

The closure must be limited to no more than what is necessary to protect the overriding interest. In Press-Enterprise Co. v. Superior Court of California,⁴³ the Supreme Court found incredulous the need to seal all but three days of a six-week voir dire. "Those parts of the transcript reasonably entitled to privacy could have been sealed without such a sweeping order."⁴⁴ In a more recent sexual assault case involving teenage witnesses, the prosecution requested that the courtroom be closed to all persons.⁴⁵ The trial court adopted an alternative to exclusion that restricted ingress and egress during the juveniles' testimony so as to improve their focus and limit distraction.⁴⁶

C. Trial Court Must Consider Reasonable Alternatives

The court must consider alternatives to closure even if the parties offer none.⁴⁷ It is ultimately the obligation of the trial court "to take every reasonable measure to accommodate public attendance at criminal trials."⁴⁸ The Court in Presley v. Georgia reversed the Georgia conviction squarely on this failure to consider alternatives to excluding the public from voir dire because of limited seating in the courtroom.⁴⁹ The Presley per curiam decision observed that some alternatives to closure could have been to "reserv[e] one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members."⁵⁰ If trial publicity poses a threat to a fair trial, the court should consider a change of venue as opposed to barring the press.⁵¹ Cases have advocated a hearing to develop the...