The right to a public trial and closing the courtroom to disruptive spectators.

• Author: Smith, Stephen E.

The Sixth Amendment to the United States Constitution provides, in part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." (1) Like many constitutional rights, however, the right to a public trial is not absolute. (2) Courtrooms may be closed to the public in some situations. (3) In Waller v. Georgia, (4) the Supreme Court set forth the test trial courts should apply to determine whether a courtroom closure is appropriate. (5) However, some courts, led by the Second Circuit's per curiam decision in Cosentino v. Kelly, (6) have declined to apply the Waller test to closures ordered for the purpose of excluding "disruptive" audience members in the courtroom. (7)

The exception of these "disruptive" courtroom closures from the Waller test is unnecessary and unsupported for several reasons. First, nothing in Waller or the Court's subsequent right to a public trial case, Presley v. Georgia, (8) indicates that the test applies in only limited circumstances. (9) Second, cases declining to apply Waller's test in these instances do not adequately explain why they believe the test has an exception at all. (10) The Waller test properly balances Sixth Amendment values against the need for decorum and accounts for the serious nature of courtroom closures. (11) Finally, the Waller test is easily administered by a trial court in effecting a courtroom closure, including those courtroom closures that exclude disruptive spectators. This anomaly in the rules governing courtroom closures should be eliminated.

THE WALLER TEST AND COURTROOM CLOSURES

The Sixth Amendment's right to a public trial manifests "[t]he traditional Anglo-American distrust for secret trials." 13 A violation of the right to a public trial is considered "structural" and thus not subject to harmless error review. (14) The right to a public trial extends to many aspects of the trial, from voir dire (15) to sentencing. (16) Moreover, Waller held that the right to a public trial applies to suppression hearings. (17) The right to a public trial also applies to the states through the Fourteenth Amendment's due process guarantee. (18) Overall, the right to a public trial may yield to other rights or interests, but only in rare circumstances, and "the balance of interests must be struck with special care." (19)

Waller is the leading Supreme Court case on the Sixth Amendment's right to a public trial and courtroom closures. (20) In Waller, the defendants were charged with violating Georgia's gambling laws. (21) Much of the prosecution's case in chief revolved around wiretap evidence; the defendants moved to suppress this evidence. (22) Following the defendants' motion, the prosecution moved to close the suppression hearing to the public. (23) The trial court granted the prosecution's motion, closing the suppression hearing "to all persons other than witnesses, court personnel, the parties, and the lawyers." (24) The trial court reasoned that if the hearing were open to the public, "insofar as the wiretap evidence related to alleged offenders not then on trial, the evidence would be tainted and could not be used in future prosecutions." (25) The Georgia Supreme Court reviewed the trial court's order and held that the closure comported with the Sixth Amendment. (26)

The Supreme Court reversed, holding that the trial court's order was improper because "the trial court failed to give proper weight to Sixth Amendment concerns." (27) The Court noted that a courtroom closure must meet a four-part test to properly comply with the Sixth Amendment:

[1] the party seeking to close the [proceeding] must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure. (28) The Waller test is rigorous. (29) While no court has explicitly stated so, the test is in the nature of "strict scrutiny" review. (30) Like other government actions reviewed under a strict scrutiny standard, the government must demonstrate a strong interest, along with a solution applied that has been narrowly tailored to serve that interest. (31)

The Waller test has been applied not only to complete closures of trial proceedings, but also to partial closures of court proceedings (e.g., closures for certain portions of a proceeding and closures to certain individuals). (32) Most courts have applied a slightly different version of the Waller test to partial closures. While three of the four Waller factors remain unchanged when a court reviews a partial closure, these courts provide that in a partial closure case an "overriding interest" need not be shown; instead, they require only a "substantial reason." (34) "[T]he difference between the two standards is not perfectly clear, other than the fact that the reviewing court knows that the 'substantial reason' standard is a more lenient standard than the 'overriding interest' standard." (35) The "modified" Waller test used in partial closure cases hews very closely to Waller in its original form. It simply minimizes the showing necessary under Waller's first factor.

In 2010, the Supreme Court revisited the right to a public trial in Presley v. Georgia. (37) In Presley, the trial court closed the courtroom during jury selection, believing that there was not enough room in the courtroom to accommodate spectators. (38) The Georgia Supreme Court held that the closure comported with the Sixth Amendment's requirements, noting, in particular, that the trial court had no sua sponte duty to investigate reasonable alternatives to closure. (39) On appeal, however, the US Supreme Court held that the closure was improper. (40) The Court reiterated that Waller set forth the appropriate test for evaluating courtroom closures (41) The Court indicated that the "overriding interest" asserted must be specific and substantiated, (42) and held that the required findings should also include specific findings of "reasonable alternatives" to closure, which the court must make sua sponte. (43)

THE COSENTINO EXCEPTION--DECLINING TO APPLY WALLER TO CLOSURES EXCLUDING DISRUPTIVE AUDIENCE MEMBERS

Despite the test set forth in Waller and reiterated in Presley, some courts have concluded that Waller's right to a public trial analysis is not implicated when objectionable spectators are excluded from trial. The seminal case is Cosentino v. Kelly. (44)

In Cosentino, a guilty verdict resulted in "bedlam":

[T]here were a great many members of the [petitioners'] family, friends here, I say 10 to 15 and not all of them but a good many of them just went absolutely off the wall yelling and screaming, several had to be physically restrained, taken out of the courtroom, we had quite a scene here. As I indicated to the jury, one unlike any that I've ever seen or the attorneys have ever seen, as they indicated to me. (45) After substantial motion practice by both sides that referenced the disturbance, the trial court declared a mistrial, and a second trial was held. (46) The trial judge excluded from the second trial some of the family members who had participated in the earlier disruption. (47) On appeal, the appellants contended that the closure of the courtroom to the family members violated their rights to a public trial. (48) The Second Circuit wrote that the disruption the spectators had caused in the courtroom was "something more than a breach...