The star-spangled chamber: the venire's role in satisfying the Sixth Amendment to the United States Constitution.

• Author: Walz, Eric J.

"The very word 'secrecy' is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings." (1)

1. INTRODUCTION

   The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to a public trial. (2) This right, although fundamental, is not absolute. (3) The Supreme Court has held that a criminal defendant's public-trial right extends to pretrial proceedings including suppression motions and voir dire of potential jurors. (4) Moreover, several circuit courts considering the matter have concluded that the right to a public trial also includes jury-selection proceedings and omnibus hearings. (5) State courts, especially Massachusetts courts, have followed suit in finding structural error when the courtroom is closed during voir dire, jury selection, or trial. (6)

   The Sixth Amendment also guarantees a defendant's right to be tried by an impartial jury. (7) An impartial jury comprised of the defendant's peers aims to prevent overzealous prosecution and biased judges. (8) Jury-selection proceedings protect criminal defendants by finding an impartial cross section of the community. (9) This cross section is derived from a panel of prospective jurors, called a venire. (10)

   Recently, appellate courts have begun aggressively canvassing cases where defendants allege a violation of their public-trial rights under the Sixth Amendment, reversing those cases when judges excluded the public from voir dire. (11) Although one could argue that appellate courts have impliedly rejected the notion that a venire is sufficient to satisfy a defendant's Sixth Amendment rights under these circumstances, some courts have found otherwise. (12) For instance, in Bucci v. United States, (13) the First Circuit found that the exclusion of some, but not all, members of the public from voir dire resulted in "partial" rather than "total" closure, but declined to decide whether such partial closure would constitute structural error requiring reversal. (14) Nor did it explicitly consider whether the venire satisfies the constitutional requirements for a public trial. (15)

   While courts pick through the web of legal questions that have and will continue to infect Sixth Amendment analysis, it is worth explicitly considering if the venire is sufficient to satisfy public trial concerns. (16) This Note will begin by considering the historical development of the public trial and trial-by-jury clauses of the Sixth Amendment from their English roots through modern caselaw analysis. (17) Then, it will briefly touch on the historical role of the venire. (18) Finally, it will argue that the venire is insufficient to satisfy the public-trial clause of the Sixth Amendment. (19)

2. SIXTH AMENDMENT HISTORY: FROM ITS ROOTS TO MODERN CASE-LAW ANALYSIS

   1. The Right to a Public Trial

      1. English Development of Public-Trial Rights and Theories Behind Incorporation

         Many authors opine on the origin of the Sixth Amendment's public-trial guarantee. (20) In England, neither the Magna Carta, nor England's Petition of Right of 1621, nor the Bill of Rights of 1689 guarantees a public trial. (21) Some evidence posits that the right developed from English common law sometime in the sixteenth and seventeenth centuries, and "obtain'd [its] Force by immemorial Usage or Custom." (22) Matthew Hale, an English common-law judge and legal scholar of the seventeenth century noted that the common law required that:

         the Evidence on either Part is given in upon the Oath of Witnesses, or other Evidence by Law allowed ... in the open Court, and in the Presence of the Parties, their Attornies, Council and all By-standers, and before the Judge and Jury, where each Party has Liberty of excepting, either to the Competency of the Evidence, or the Competency or Credit of the Witnesses, which Exceptions are publickly stated, and by the Judges openly or publickly allowed or disallowed, wherein if the Judge be partial, his Partiality and Injustice will be evident to all By-standers. ... (23) He argued for openness in English courts, as opposed to examinations performed in secret that pressured witnesses into telling the truth. (24) Interestingly, Hale makes no mention of the accused's rights pertaining to a public trial, but couches his argument in consideration of the public's right and ability to protect against injustice. (25)

         While Hale briefly contrasted the English system of public trials with secret examinations, others have argued that the right to a public trial was indeed a response to the secretive practices of the Court of Star Chamber. (26) The Star Chamber developed from a combination of French and English criminal procedures. (27) A defendant confronting the Star Chamber pleaded his or her case, received an open hearing, and had a right to counsel at all stages. (28) However, the defendant and the witnesses against him were secretly interrogated, the defendant's confessions were commonly extracted through torture, and the defendant was denied the common-law right against selfincrimination. (29) The Star Chamber initially received widespread support from citizens who praised the strong government for ensuring security, peace, and order. (30) But by the beginning of the seventeenth century, certain practices of the Star Chamber--specifically, the crown's exclusive right to call witnesses--began to shock the public, resulting in an increased disdain for the Chamber, and its ultimate abolishment in 1641. (31)

         Still others argue that neither an intentional incorporation of English common law nor an opposition to Star Chamber practices influenced the nation's Founders when incorporating the right to a public trial into the Sixth Amendment. (32) Instead, as Max Radin argued, "[w]hat happened, then, was that a traditional feature of English trials, more or less accidental, was carried over into the American systems. ..." (33) Radin argues that the venire's purpose was community representation rather than judicial fact finding. (34) As a result, a public trial was "a necessary incident of jury trials, since the presence of a jury--involving a panel of thirty-six men and more--already insured the presence of a large part of the public." (35) If the venire's purpose was indeed community representation, as Radin suggests, then the argument that the venire's presence during jury empanelment satisfies the Sixth Amendment becomes much stronger. (36)

      2. The Incorporation of the Right to a Public Trial

         Despite its historical presence, debates leading up to the Sixth Amendment's adoption include scant reasoning for incorporating the public-trial right. (37) Some early commentators noted that the Sixth Amendment was merely an incorporation of English common law into the Constitution. (38) But discussions surrounding the Bill of Rights tend to imply that the incorporation of the public-trial right was instead a fearful reaction to the dangers of Star Chamber practices. (39) Moreover, the first mention of a public-trial right appears to adopt the view that the right was one of the public rather than the accused. (40)

         The conflict between the views of Joseph Story and J. Kendall Few is not immediately apparent, but an important distinction results when one considers the consequences of adopting one view over the other. (41) On the one hand, Story implies that the incorporation of the public-trial right is no more than an adoption of English law and reasoning as set forth in the centuries-long history of England. (42) Few, on the other hand, suggests that the American public-trial incorporation targeted weaknesses within English law, and thus resulted in a more targeted attack on particular ideals that the American Constitution would protect. (43) Evidence surrounding the debates suggests that Few's theory is correct; the Founders witnessed the Star Chamber's abuse of criminal defendants and intended to protect against it. (44)

      3. The Supreme Court's Development of the Public-Trial Right

         In light of the discussions surrounding the public-trial right's incorporation into the Sixth Amendment, federal courts have long cited the "historical warnings of the evil practice of the Star Chamber in England" as reason for its adoption. (45) The Supreme Court explained that "these institutions obviously symbolized a menace to liberty ... in ruthless disregard of the right of an accused to a fair trial." (46) In Davis v. United States, (47) the defendants were charged in federal court in connection with a train robbery. (48) At the end of trial and in anticipation of a disruption by an excitable crowd that had gathered, the judge cleared the courtroom of most spectators, leaving approximately twenty-five people, including court officers, newspaper reporters, and the defendants' relatives and attorneys. (49) The defendants appealed their convictions and the Eighth Circuit reversed on Sixth Amendment grounds, noting how the right to a public trial developed in opposition to secretive practices similar to those witnessed in the Star Chamber. (50) The court went even further, however, alluding to an important public right whereby the public's influence prevents injustice. (51)

         It was not until 1948 that the Supreme Court held that the Sixth Amendment was enforceable through the Fourteenth Amendment for state criminal prosecutions. (52) In In re Oliver, the Supreme Court reversed a conviction for criminal contempt of a man who had been summoned by a Michigan judge to testify in private in "a 'one-man grand jury' investigation." (53) The United States Supreme Court reversed the Michigan Supreme Court, holding that the secretive proceeding violated the Due Process Clause of the Fourteenth Amendment. (54) As in Davis, the Court considered the history of the Sixth Amendment, but this time argued that the right was derived from common law rather than in opposition to practices of the Star...